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In re Grand Jury Subpoena etc.

United States Court of Appeals for the Fifth Circuit

March 6, 1991

Nos. 90-2827, 90-2992, 91-2058

Opinion

 [*1425]  KING, Circuit Judge.

In September 1990, we reversed a ruling by the district court granting a motion to quash a subpoena requiring defense attorney Mike DeGeurin (DeGeurin) to reveal the identity of an anonymous third party benefactor who paid the attorney's fees for drug defendant Jose Evaristo Reyes-Requena (Reyes-Requena). See In re Grand Jury Subpoena For Attorney Representing Criminal Defendant Jose Evaristo Reyes-Requena (Mike DeGeurin), 913 F.2d 1118 (5th Cir.1990), cert. pending (Reyes-Requena I). In so ruling, we concluded that "nothing in the record reflects that this information was either a confidential communication [**2]  between DeGeurin and Reyes-Requena or inescapably tied to such a communication. . . ." Id. at 1122. After remand, the Government obtained a new subpoena directing DeGeurin to appear before the grand jury and reveal the identity and fee arrangements made by the third party benefactor. The anonymous third party benefactor intervened as "Intervenor John Doe" (Intervenor). Intervenor moved to quash the subpoena and for an in camera, ex parte hearing to establish the existence of an on-going attorney/client relationship with DeGeurin that existed prior to DeGeurin's representation of Reyes-Requena and that would be breached by the requested revelations.

The district court denied DeGeurin's and Intervenor's motions to quash and for an in camera, ex parte hearing. DeGeurin and Intervenor appeal from this ruling. DeGeurin appeared before the grand jury and revealed the identity and fee arrangements made for Reyes-Requena by a non-client third-party, but DeGeurin refused to reveal Intervenor's identity or the fee arrangements Intervenor made for Reyes-Requena. The Government moved to hold DeGeurin in civil contempt under the recalcitrant witness statute, 28 U.S.C.  [**3]  § 1826.

At this juncture, the district court provided DeGeurin and Intervenor with their requested in camera, ex parte hearing, and concluded that the documents submitted under seal revealed the existence of an attorney/client relationship prior to DeGeurin's representation of Reyes-Requena. The district court denied the Government's motion to hold DeGeurin in contempt. See In re Grand Jury Subpoena For Reyes-Requena, 752 F. Supp. 239 (1990) (Reyes-Requena II). Because we agree with the district court that the revelation of Intervenor's identity and fee arrangements would breach confidential communications that are intertwined inextricably with Intervenor's confidential purpose for retaining DeGeurin's services, we affirm.

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926 F.2d 1423 *; 1991 U.S. App. LEXIS 3685 **; 32 Fed. R. Evid. Serv. (Callaghan) 472

IN RE GRAND JURY SUBPOENA FOR ATTORNEY REPRESENTING CRIMINAL DEFENDANT JOSE EVARISTO REYES-REQUENA, JOHN DOE, Intervenor-Appellant. IN RE: GRAND JURY SUBPOENA FOR MIKE DEGUERIN, MIKE DEGUERIN, Appellant, and JOHN DOE, Intervenor-Appellant. IN RE GRAND JURY SUBPOENA FOR ATTORNEY REPRESENTING CRIMINAL DEFENDANT, JOSE EVARISTO REYES-REQUENA, UNITED STATES OF AMERICA, Appellant

Subsequent History:   [**1]  Rehearing and Rehearing En Banc Denied September 27, 1991, Reported at 1991 U.S. App. LEXIS 23261.

Prior History: Appeals from the United States District Court for the Southern District of Texas. Nos. CA-H-90-586, Misc H-89-522, Misc H 90 586; David Hittner, Judge.

Disposition: 91-2058 -- Affirmed. 90-2827 -- Dismissed. 90-2992 -- Dismissed.

CORE TERMS

district court, fee arrangement, subpoena, grand jury, confidential, contempt, confidential communication, disclosure, client privilege, motion to quash, in camera, benefactor, final decision, appeals, advice, incriminate, intertwined, anonymous, sealed, civil contempt, privileged, moot, client relationship, quashing a subpoena, ex parte hearing, legal advice, third party, inextricably, consulted, revealing

Civil Procedure, Sanctions, Contempt, Civil Contempt, Remedies, Injunctions, Contempt, General Overview, Appeals, Appellate Jurisdiction, Final Judgment Rule, Interlocutory Orders, Criminal Law & Procedure, Subpoenas, Challenges to Subpoenas, Appealability, Motions to Quash, Standards of Review, Abuse of Discretion, Discovery, Privileged Communications, Clearly Erroneous Review, Abuse of Discretion, Clearly Erroneous Review, Evidence, Privileges, Attorney-Client Privilege