Opinion
CAUSE NO. 3:21-CR-30 DRL-MGG
2023-01-06
UNITED STATES of America, Plaintiff, v. Quintin FERGUSON, Defendant.
Kimberly L. Schultz, Government Attorney, U.S. Attorney's Office, Hammond, IN, Jerome W. McKeever, AUSA, Government Attorney, U.S. Attorney's Office, South Bend, IN, for Plaintiff. Thomas A. Durkin, Elisa Y. Lee, Durkin & Roberts, Chicago, IL, for Defendant.
Kimberly L. Schultz, Government Attorney, U.S. Attorney's Office, Hammond, IN, Jerome W. McKeever, AUSA, Government Attorney, U.S. Attorney's Office, South Bend, IN, for Plaintiff. Thomas A. Durkin, Elisa Y. Lee, Durkin & Roberts, Chicago, IL, for Defendant.
ORDER
Damon R. Leichty, Judge
The government charged Quintin Ferguson with arson. See 18 U.S.C. § 844(i). The government disclosed a video that it claims will show Mr. Ferguson setting fire to Sharakis Wilson's apartment. He disputes its legitimacy. He asked the court once already to exclude the video at trial because it could not be authenticated, which the court denied last year.
Today he comes armed with a transcript of a jailhouse call with Ms. Wilson in which she reported to him that she "made up" the video and told her counsel as much. Mr. Ferguson applies for advanced authorization of defense costs to serve two subpoenas for records—one on Ms. Wilson and one on her attorney, Donald J. Schmid. Mr. Ferguson says she waived her attorney-client privilege during the call.
The rule contemplates an ex parte application, but the defendant served the government, so the court has not treated this as an ex parte application. See Fed. R. Crim P. 17(b).
These subpoenas seek to invade the oft-sacrosanct province of the attorney-client privilege and the alleged victim's confidential information, so the court ordered everyone to respond. See Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981); Fed. R. Crim. P. 17(c)(3). And they did last week.
The government confirms it intends to call Ms. Wilson at trial and expects she will authenticate the video in question, though naturally the government takes no position on the defendant's request for funds. Both Ms. Wilson and her counsel ask the court to quash the subpoenas because they seek information protected by the attorney-client privilege and the work product doctrine, because they exceed the scope of discovery rights under Rule 16, and because they lack the requisite specificity. Mr. Ferguson replies by renewing his motion in limine to exclude the video at trial.
The court must approve a subpoena for a "named witness" upon a defendant's application if he shows (1) an inability to pay the witness's fees and (2) the necessity of the witness's presence for an adequate defense, see Fed. R. Crim. P. 17(b), though admittedly the witness's presence here is solely for the production of records, see 2 Wright & Miller, Fed. Prac. & Proc. Crim. § 273 (4th ed. 2022); United States v. Hang, 75 F.3d 1275, 1282 (8th Cir. 1996). Constitutionally a defendant isn't entitled to discovery, as the due process clause has "little to say about it," Gray v. Netherland, 518 U.S. 152, 168, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996); United States v. Vargas, 915 F.3d 417, 421 (7th Cir. 2019), but the federal rules provide a means, see Fed. R. Crim. P. 16.
Mr. Ferguson proceeds in defense with appointed counsel under the Criminal Justice Act.
Rule 17 wasn't meant to augment Rule 16 as an additional means of discovery, only to "expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials." Bowman Dairy Co. v. United States, 341 U.S. 214, 220, 71 S.Ct. 675, 95 L.Ed. 879 (1951); accord United States v. Tokash, 282 F.3d 962, 971 (7th Cir. 2002) ("Rule 17(c) is not a discovery device to allow criminal defendants to blindly comb through [a party's] records in a futile effort to find a defense to a criminal charge."). Else Rule 17 helps to implement the Sixth Amendment right to a compulsory process to obtain witnesses in a defendant's favor. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982); United States v. Bender, 5 F.3d 267, 270 (7th Cir. 1993).
To obtain records through a subpoena, Mr. Ferguson must establish that (1) the documents are "evidentiary and relevant," (2) he could not through the exercise of due diligence otherwise procure the documents reasonably in advance of trial, (3) the documents are "essential" to prepare for trial, and (4) the subpoena seeks documents in good faith and not as a general fishing expedition. United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); see Fed. R. Crim. P. 17(c); Tokash, 282 F.3d at 971; United States v. Ashman, 979 F.2d 469, 495 (7th Cir. 1992). This test ensures relevancy, admissibility, and specificity. Nixon, 418 U.S. at 700, 94 S.Ct. 3090. The subpoenas cannot be "unreasonable or oppressive." Fed. R. Crim. P. 17(c)(2). Mr. Ferguson has met his burden only in part.
The subpoenas seek a broad swath of information that has not been shown to be evidentiary, relevant, or essential to his defense, and they otherwise invade the work product doctrine that has not been shown to be waived. That said, the subpoenas seek some material, once shielded by the attorney-client privilege, to which Mr. Ferguson is today entitled because Ms. Wilson waived that privilege in part.
The proposed subpoenas seek the following information from Ms. Wilson and her counsel respectively:
Any and all books, records and documentation, including but not limited to: any and all notes, memoranda, electronic communications, or other memorializations related to (1) statements made to you by Donald Schmid regarding the creation of a video recording with [Quintin] Ferguson depicting the setting of a fire, your anticipated testimony, and/or cooperation with the government concerning Mr. Ferguson and his upcoming trial; and (2) any insurance claims and settlements with respect to a fire at 6315 Summer Pl. Dr. W. Mishawaka, IN 46530 on January 10, 2021.
Any and all books, records and documentation, including but not limited to any and all notes, memoranda, or electronic communications, related to statements made to you by Sharakis Wilson regarding the creation of a video recording with [Quintin] Ferguson depicting the setting of a fire, her anticipated testimony or cooperation with the government concerning Mr. Ferguson, and all matters relating to legal fees for your services or potential future services.
The attorney-client privilege encourages "full and frank communication between attorneys and their clients." Upjohn, 449 U.S. at 389, 101 S.Ct. 677. This privilege is nonetheless construed strictly because it tends to prevent full disclosure of the truth. See Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007); Radiant Burners, Inc. v. Am. Gas Ass'n, 320 F.2d 314, 323 (7th Cir. 1963) (en banc). "(1) [When] legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived." United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997) (citation omitted).
Once the client discloses confidences to a third-party, she waives the privilege. See Appleton Papers, Inc. v. EPA, 702 F.3d 1018, 1024 (7th Cir. 2012) ("Generally, a party that voluntarily discloses part of a conversation covered by the attorney-client privilege waives the privilege as to the portion disclosed and to all other communications relating to the same subject matter."); Burden-Meeks v. Welch, 319 F.3d 897, 899 (7th Cir. 2003) ("Knowing disclosure to a third party almost invariably surrenders the privilege with respect to the world at large; selective disclosure is not an option."); Powers v. Chi. Transit Auth., 890 F.2d 1355, 1359 (7th Cir. 1989) ("Any voluntary disclosure by the holder of the attorney-client privilege is inconsistent with the attorney-client confidential relationship and thus waives [it].").
On this record, Ms. Wilson freely and voluntarily disclosed attorney-client communications to Mr. Ferguson and thereby waived the privilege, albeit only as to the subject matter of the creation or authenticity of the video. The jailhouse call records her as saying:
When I told, when I told Schmid[ ] about the video and I had told him that the video was made up and everything like that and it was from TikTok and all this other type of stuff and that I was upset, and I was mad. He was like ok Sharakis, like he was like this is really bad I kinda wished you would have told me sooner. This man literally told me he was like we have to go and put a motion in immediately and he was like and I'm letting you know that Quintin, he probably gonna be so mad at you. He's like he will walk out of that jail like he will walk out of that jail like today. But he was like Sharakis, only thing I can say is that you didn't have no right representation at the time you know you didn't know what you were doing. He was like that's all I could really say. He was like but I don't know what which way this [expletive] would go for you.Ms. Wilson disclosed the contents of a conversation with her counsel when she sought legal advice about this ongoing arson case in which she is the alleged victim and key witness. She also disclosed her counsel's response and advice. Her counsel has ably complied with his duty to assert her attorney-client privilege today, but her conscious choice has foreclosed his ability to defend her knowing waiver.
The record reveals no such waiver of the work product doctrine. Mr. Ferguson offers no cogent argument to the contrary. This doctrine applies in a criminal case. United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). It is distinct from the attorney-client privilege. See id. at 238, 95 S.Ct. 2160 n.11. The doctrine "establish[es] a zone of privacy in which lawyers can analyze and prepare their client's case free from scrutiny or interference by an adversary." Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006); see also United States v. Frederick, 182 F.3d 496, 500 (7th Cir. 1999). The doctrine protects materials prepared in anticipation of litigation, particularly counsel's mental impressions, opinions, or legal theories. See Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 622 (7th Cir. 2010). "Forcing an attorney to disclose notes and memoranda of [a witness's] oral statements is particularly disfavored because it tends to reveal the attorney's mental processes." Upjohn, 449 U.S. at 399, 101 S.Ct. 677.
Either the client or counsel may invoke the work product doctrine. See Hobley, 433 F.3d at 949. Its protection can be waived, Nobles, 422 U.S. at 239-40, 95 S.Ct. 2160, but it isn't waived by disclosure to a third-party unless the disclosure "substantially increase[s] the opportunities for potential adversaries to obtain the information." Appleton Papers, 702 F.3d at 1025 (citation omitted). Mr. Ferguson hasn't explained how it was waived here or why he should obtain such protected information. Neither Ms. Wilson nor her counsel disclosed any protected documents. And her statements during the call never refer to written work product. She alludes generally to a potential motion but never says what this motion would say.
Accordingly, Mr. Ferguson may obtain, through the two proposed subpoenas, communications between Ms. Wilson and her counsel concerning the authenticity or creation of the video, should these communications exist by way of email, text messages, voice recording, voice transcription, letter, or other means of communication. But these materials and no others, because the attorney-client privilege has been waived only as to this subject matter and the work product doctrine has not been waived. To be clear, the subpoenas cannot seek "all books, records and documentation" and cannot seek counsel's "notes [and] memoranda." Ms. Wilson's notes of communications on this particular subject are fair game.
The subpoenas otherwise are unreasonable and oppressive. The subpoenas at times also aren't stated with reasonable particularity and amount to a general fishing expedition—for instance, seeking all documents related to her anticipated testimony or work with the government. See Nixon, 418 U.S. at 699-700, 94 S.Ct. 3090; Wright, supra § 275. The subpoenas seek information that Mr. Ferguson hasn't established to be evidentiary, relevant, or even necessary to his defense, including Ms. Wilson's insurance claims or settlements, and "all matters relating to [her counsel's] legal fees" for services now and in the future.
Now to the schedule. Trial will start January 30, 2023. A final pretrial conference is set for January 23, 2023. The court adjusts the scheduling order for the defendant's pending motion in limine (and only this motion) as follows: any supplement to the motion from the defendant is due January 16, 2023, and any response by the government must be filed by January 18, 2023. As usual, the court will take up the motion at the final pretrial conference.
The court approves the advancement of costs to the defendant solely for the two subpoenas to seek documents as tailored in this order. The court orders the defendant to serve these subpoenas by January 10, 2023, and orders Ms. Wilson and her counsel to produce responsive documents to Mr. Ferguson and the government by January 13, 2023. Given that all counsel have been involved in discussions on this subject since the fall last year, given the advance notice provided to the respondents here, given that the subpoenas as tailored seek in fairness a likely modest return, and given that the defendant has had prior notice of Ms. Wilson's and her counsel's statements through the jailhouse recording, this schedule permits adequate time to obtain the information and to prepare for trial.
Accordingly, the court GRANTS IN PART and DENIES IN PART the defendant's motion for authorization of costs [ECF 64], GRANTS IN PART and DENIES IN PART the motion to quash [ECF 67], and ORDERS the subpoenas revised and served, and responses made, according to the schedule herein. The court directs the clerk to send a copy of this order to all counsel here.
SO ORDERED.