Such a result is not just; it is antagonistic to the truth-seeking purposes of a trial; and it need not be countenanced by the Court with its broad responsibility for ensuring a fair trial to all the parties.
Second. The force of these considerations is enhanced by the fact that we are dealing here with what essentially amounts to a single conversation or consultation with Cannon (at least insofar as White is concerned). The prosecution is not seeking to examine statements Cannon may have made at other times or to other individuals.
Cannon began his conversation with White and the others before lunch, and he went on immediately after lunch with the same conversation on the same topics with White alone.
If this had been a single conversation, without a luncheon pause in between, White and DePietro could not be heard to argue, and the Court would not hold, that some part of the Cannon advice may be admitted but those portions not helpful to their defense should be carefully excised. United States v. Aronoff, 466 F. Supp. 855, 862 (S.D.N.Y. 1979). Of course, they argue that they are not seeking to bring out the pre-lunch statements but that it is Finotti who is following that course. As noted above, however, the three all share the same basic defense and all three would be equally benefitted by a partial disclosure of the attorney's comments.
Moreover, in essence what we have here was a single conversation, even though the first part was held with one third party other than the defendants (the witness Sara Butler) present and the second part was carefully limited to Cannon and White.
Third. Even if the situation before the Court is examined under the rubric of a waiver of the attorney client privilege, defendants will not prevail. The privilege can be waived implicitly as well as explicitly. In re Sealed Case, 219 U.S. App. D.C. 195, 676 F.2d 793, 807 (D.C. Cir. 1982). As indicated above, a basic defense advanced by White and DePietro is that they lacked the requisite criminal intent in that they assumed that Finotti had permission from his superiors for his activities for Southern, and that such permission was sufficient to eliminate any possible illegality on their part. Since these defendants placed their criminal intent in issue in this manner, with legal advice concerning their reliance on the cleansing power of permission by Finotti's superiors being a component of that defense, they have waived any reliance on the privileged character of the advice that Cannon rendered to White to the effect that even if Finotti had permission the arrangement might be illegal. See United States v. Tuchow, 768 F.2d 855, 862 (7th Cir. 1985) (defense of lack of intent opened door to permit introduction of prior bad acts).
The privilege was waived even more directly when White, during the investigation of the allegations in this case, stated to special agent Jack E. Hawkins that Southern's attorneys had been consulted and "had thoroughly reviewed the decision to employ Finotti after . . . looking at the matter from nine different ways."
Defendants argue that the Hawkins testimony or his statement may not be admitted because (1) Chief Judge Robinsons's ruling during the grand jury phase that there was no waiver is the law of the case, and (2) to admit the testimony or statement would create problems under Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). Neither of these points is well taken.
Chief Judge Robinson's ruling is not binding here or even persuasive not only because that ruling dealt strictly with a grand jury problem rather than a trial situation, but also because the issue of admission of part of the truth but not all of the truth was not even remotely pending at that time. Moreover, Chief Judge Robinson's decision was made in the context of a ruling which held the crime-fraud exception to the attorney client privilege to be applicable -- a ruling which is contrary to that made by this Court just prior to trial. As for the Bruton problem, Hawkins' statement may be redacted to eliminate any possibility of prejudice to the other defendants.
Richardson v. Marsh, 481 U.S. 200, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987).
Fourth. As stated supra, the Court ruled on November 17, 1988, that the crime-fraud exception to the attorney client privilege did not apply because, so the Court then concluded, Cannon's statements to White in their post-lunch meeting were not made in furtherance of the criminal design. In support of this determination, the Court cited as typical of that conversation Cannon's statements in response to White's inquiry to the effect that even if Finotti had permission the arrangement might be illegal. See supra note 3. Given subsequent trial developments and motions, the Court can now far more clearly focus on the juxtaposition of that advice with Cannon's statement during the pre-lunch meeting that, according to Sara Butler, was to the effect that he saw no problems if Finotti received permission.
In light of the Butler testimony, it now appears that Cannon's consultations and statements may well have been made to further a criminal design. The pre-lunch advice, given in the presence of the entire group, when juxtaposed against the more confidential advice provided in secrecy only to White, might well permit the drawing of an inference that a concealment of crime was planned even at that time. Certainly, the conversations with Cannon were designed to make some on the inside -- and potentially everyone on the outside -- believe that permission from Finotti's superiors was enough to relieve the defendants of criminal responsibility (when, as only Cannon and White knew, this was not true). In short, Cannon's advice in the pre-lunch meeting could well have been part of a plan to lay the groundwork for a subsequent claim of lack of criminal intent and thus in furtherance of a crime or fraud.
On this basis, if there were no other way to prevent the unjust result of permitting the defendants to place before the jury legal advice that was retracted within an hour or two, without also making known to them the retraction, the Court would be prepared to reexamine its November 17, 1988 ruling and to hold that the Cannon statements taken in their entirety were made in furtherance of the criminal enterprise now before the Court and were therefore not protected by the attorney client privilege. However, inasmuch as the ruling announced supra already achieves that result, there will be no formal reversal of the November 17, 1988 ruling.
For the reasons stated, it is this 28th day of November, 1988
ORDERED that the defendant's motion in limine filed on November 23, 1988, be and it is hereby denied.