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UNITED STATES v. FINOTTI

November 28, 1988

UNITED STATES OF AMERICA,
v.
LESTER H. FINOTTI, JR. WILLIAM H. WHITE, SR. CARMINE W. DEPIETRO


Harold H. Greene, United States District Judge.


The opinion of the court was delivered by: GREENE

HAROLD H. GREENE, UNITED STATES DISTRICT JUDGE

 I

 William H. White, Sr., and Carmine W. DePietro, respectively the president *fn1" and vice president of the Southern Investment Co., who are defendants in this conspiracy-bribery case, have filed a motion in limine which, if granted, would have the effect of precluding the government from inquiring into a conversation between White and Hubert N. Cannon, an attorney on retainer by Southern, regarding the legality of the financial relationship between Southern and Lester H. Finotti, Jr., a government official and third defendant in this case. The motion arises in a rather complicated factual framework that must be described in some detail.

 It is the theory of White and DePietro in response to the prosecution that they lacked the requisite criminal intent for the alleged violations in large part because of their understanding that Finotti had secured the permission of his superiors for his financial relationship with Southern, and that this permission, or their assumption that such permission had been given, took the relationship out of the realm of criminality. This theory is supported by the direct testimony of Sara Butler, an ex-employee of Southern, who participated in a meeting held shortly before lunch on March 1, 1985, at which all three defendants and Cannon were also present. In the course of that meeting, Cannon was asked whether it would be illegal for White and DePietro to place Finotti on Southern's payroll while he was also employed by the General Services Administration, an agency of the United States, to which Cannon replied, according to Ms. Butler, that, as long as Finotti had permission from his superiors, there would be no problem. *fn2"

 However, the prosecution has proffered, and there is grand jury testimony to validate that proffer, that in a second, or continuation meeting just after lunch on March 1, White met alone with Cannon and that Cannon then advised White that, irrespective of any permission Finotti might have received from his superiors, a financial relationship with him under the circumstances contemplated by the Southern officials would be illegal and should not be consummated. *fn3" This subsequent advice obviously cuts directly across the White-DePietro defense. The current motion, together with the other events that will now be discussed, would, if granted, have the effect of revealing to the jury what was said by Cannon before lunch on March 1 but not what he told White after lunch on the same day.

 II

 On November 17, 1988, before the start of the trial, White and DePietro moved in limine for a ruling to exclude any communications with Cannon that would be protected by the attorney-client privilege, and that the privilege was not abrogated by the crime-fraud exception. Although the issue was a close one, and although Chief Judge Robinson had ruled to the contrary during the grand jury phase of this case, this Court ruled at that time that the crime-fraud exception did not apply because the attorney's advice was not given in furtherance of a criminal design and that the defendants were therefore entitled to the protection of the privilege with respect to that advice. See In re Sealed Case, 244 U.S. App. D.C. 11, 754 F.2d 395 (D.C. Cir. 1985); In re Antitrust Grand Jury, 805 F.2d 155 (6th Cir. 1986); In re Grand Jury Subpoenas Duces Tecum, 798 F.2d 32 (2d Cir. 1986). However, the current White-DePietro motion would convert the Court's earlier ruling from a shield into a sword, for it would expose the jury to only that half of the truth that supports the White-DePietro defense (Cannon's pre-lunch statements) but keep from it the other half (the post-lunch conversation in which the attorney contradicted his previous advice). *fn4" This is so because of events that have transpired since the Court's November 17 ruling, as follows.

 In the November 17 ruling, as indicated, the Court held that the conversation between White and Cannon was protected by the privilege. The prosecutor subsequently sought a clarification from the court on the scope of that ruling. Specifically, the prosecutor was concerned that the defendants might be allowed to disclose the statements made during the pre-lunch meeting while keeping confidential the subsequent private meeting. Accordingly, the prosecution sought a ruling that if the defendants disclosed Cannon's remarks in the pre-lunch meeting, *fn5" then the defendants should be deemed to have opened the door permitting disclosure of the privileged, post-lunch communication. In response to this suggestion, the attorneys for White and DePietro proffered that they would not touch upon Cannon's remarks in the pre-lunch meeting and thus would not open the door. If that had been the end of it, the court's November 17 ruling would have remained intact and the jury would of course have been exposed neither to the pre-lunch advice nor to the post-lunch advice.

 However, counsel for Finotti, during his opening statement, did make reference to Cannon and this first meeting. This prompted the prosecution to repeat its request for a ruling by the Court that the defendants had opened the door. The Court concluded that such a ruling was not yet ripe, and it refused the prosecution's request. Subsequently, counsel for Finotti advised the Court that he would seek to bring out Cannon's statement during the pre-lunch meeting when he cross-examines Ms. Butler (and presumable also with respect to other witnesses). The Court ruled that the cross examination could proceed on that basis, *fn6" and the prosecution immediately countered that such cross examination would open the door to the entire subject of Cannon's statements that day, and that it should be allowed to inquire into the remainder of those statements. This prosecution request was followed, in turn, by the pending White-DePietro motion in limine, which, as indicated above, would now serve to keep out only Cannon's post-lunch advice. The Court will deny the defense motion for several reasons.

 III

 First. White and DePietro argue that all that is involved here is the issue of waiver of the attorney-client privilege; that they have not waived that privilege; and that Finotti cannot waive it for them. The Court is not persuaded that this argument, which, on its face does not lack appeal, focuses on the true issue. The question of admitting the remainder of Cannon's statements arises, after all, in a trial setting in which the Court has the authority to rule that matter which would otherwise be inadmissible, may nevertheless be received in evidence because the "door was opened" by earlier trial events. United States v. York, 830 F.2d 885, 892 (8th Cir. 1987); United States v. Carter, 801 F.2d 78, 83-84 (2d Cir. 1986); United States v. Taylor, 728 F.2d 864, 874 (7th Cir. 1984). To be sure, the decided cases have not dealt with this subject in the context of the attorney-client privilege *fn7" but that appears to be so only because the situation presently before the Court is so unusual as to be possibly unprecedented. *fn8" What is clear in any event is that the attorney-client privilege is not immutable but can be overborne in various circumstances. *fn9" The Court is of the view that this case presents such a circumstance.

 It is true, of course, that the door is not being opened by White and DePietro but rather by their codefendant Finotti. However, these three defendants are jointly charged in a single conspiracy, and their defenses to the charge are not antagonistic but complementary. *fn10" Furthermore, it is not to impugn the purposes or motives of any of the defendants to conclude that the convergence of Finotti's effort to bring out the first Cannon conversation and the simultaneous White-DePietro effort to keep out the second Cannon conversation happens to suit the trial strategies of all three defendants extremely well.

 There is also the factor that, objectively speaking, what defendants are seeking the Court to do would result in a gross distortion of the truth. The attorney-client privilege, like other privileges and evidentiary rules, sometimes keeps from the trier of fact the truth of what actually occurred, and this is accepted by the law when more important societal values are at stake. But there is present here a circumstance that is, at a minimum, unusual in privilege or other evidentiary situations - that under the defense motion one part of the facts constituting the "truth" would come to the attention of the jury but the remainder, a directly contradictory statement made by the same individual, will be kept from it. *fn11" Such a ...


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