The Court-Martial, Indecent Exposure and Transmitting a Photograph of a Penis

This post examines a recent opinion from the U.S. Army Court of Criminal Appeals: U.S. v. Entzminger, 76 M.J. 518 (2017). The court begins the opinion by explaining that

[i]n this case, we find appellant was improvident when he pleaded guilty to violating Article 120c, UCMJ, for indecent exposure when the underlying offense was based on appellant electronically transmitting a photograph of his penis to a victim. The staff judge advocate (SJA) provided incorrect legal advice to the convening authority in the addendum to the staff judge advocate's post-trial recommendation (SJAR) when he advised the convening authority that no legal error occurred regarding appellant's conviction for indecent exposure under Article 120c Uniform Code of Military Justice, 10 U.S.C. § 920c (2012) [hereinafter UCMJ] in light of United States v. Williams, 75 M.J. 663, 669 (Army Ct. Crim. App. 2016).

U.S. v. Entzminger, supra.

The Court goes on to explain that

[a] military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specification of indecent exposure, one specification of indecent language to a child under sixteen years of age, one specification of indecent language, and two specifications of communicating a threat, in violation of Articles 120c and 134, UCMJ. The military judge sentenced appellant to a bad-conduct discharge and sixteen months confinement. In accordance with the pretrial agreement, the convening authority approved only so much of the sentence as provided for a bad-conduct discharge and confinement for thirteen months.

We have reviewed this case pursuant to Article 66, UCMJ. Appellant asserts two assignments of error, one of which merits discussion and relief.

U.S. v. Entzminger, supra.

The court goes on to explain how, and why, the prosecution arose:

Appellant met thirteen-year-old KT when they were both dependents at Camp Zama, Japan. At that time, appellant was about twenty years old. Appellant became smitten with KT and after they both left Japan, he sought a dating relationship with her. He regularly called her, texted her, and communicated with her via various computer messaging applications.

After leaving Japan, appellant joined the Army and was stationed in Korea. He continued to reach out to KT until she decided she no longer wished to continue their association and `blocked' his various computer accounts. KT's attempts to stop all communication with appellant were continuously foiled when he would simply open another account and reach out to her again.

At some point, appellant became aware KT had another boyfriend and became enraged. Appellant then began a series of both indecent and intimidating messages to KT, threatening to publically distribute nude photographs of KT that he somehow came to possess. The string of threats and indecent remarks began the night before KT's sixteenth birthday and continued into the next morning. Appellant culminated his indecent and threatening barrage of messages by sending KT an unsolicited picture of his penis through a computer messaging system, followed by the indecent message, `You can suck my dick now.’

U.S. v. Entzminger, supra.

The court went on to note that

Appellant pleaded guilty, inter alia, to violating Article 120c, UCMJ, indecent exposure, for transmitting a photograph of his penis via computer to KT.

U.S. v. Entzminger, supra.

The court then began its analysis of the legal and factual issues in the case, explaniing, initially, that

[w]e review a military judge's decision to accept a guilty plea for an abuse of discretion. United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 20130 (citing United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). Although the standard for this case is `abuse of discretion,’ when the law changes due to a case decided while an appellant's case is on direct appeal, appellant is entitled to avail himself of the new rule, even though the military judge did not err at the time. United States v. Harcrow, 66 M.J. 154, 160 (C.A.A.F. 2008) (Ryan, J. concurring). A guilty plea will only be set aside if we find a substantial basis in law or fact to question the plea. Id. (citing (citing Inabinette, 66 M.J. at 322). The court applies this `substantial basis’ test by determining whether the record raises a substantial question about the factual basis of appellant's guilty plea or the law underpinning the plea. Inabinette, 66 M.J. at 322.

U.S. v. Entzminger, supra.

The court went on to point out that

[w]hether Article 120c(c), UCMJ, proscribes the appellant's electronic transmission of a photograph of his penis is a de novo question of statutory interpretation.

After appellant's court-martial but before the convening authority took action, this court decided Williams, and considered whether Article 120c(c), UCMJ, applied to an appellant sending a still `digital image’ of his penis via text message to a victim. We determined it did not. We held the term `exposed’ under Article 120c(c), UCMJ, did not encompass showing a person a photograph or digital image of one's genitalia because there was no live display of actual genitalia. Finally, we concluded Congress did not intend to criminalize an `exposure’ through communication technology under Article 120c(c), UCMJ. In other words, after trial this court definitively determined appellant's actions did not constitute the offense of indecent exposure.

As in Williams, here the record establishes no legally sufficient theory of how appellant committed indecent exposure under Article 120c(c), UCMJ. Accordingly, there is a substantial basis in law to question the providence of appellant's plea. The government concedes the point.

U.S. v. Entzminger, supra (emphases in the original).

The court went on to explain that

[c]ommendably, appellant's trial defense counsel outlined the then week-old holding in Williams in accurate and persuasive detail in appellant's Rule for Courts-Martial [hereinafter R.C.M.] 1105 matters to the convening authority and argued that the holding in Williams squarely applied to the facts in appellant's case and thus rendered the indecent exposure conviction legally insufficient. Indeed, the binding precedent established by that case eliminated any argument to the contrary. Appellant requested disapproval of the indecent exposure conviction and a reduction in his court-martial sentence.

In the addendum to his recommendation, the SJA provided the following advice to the convening authority:

`I have considered the defense allegation of legal error regarding PVT Entzminger's conviction of indecent exposure under 120c, based on US v. Williams, [75 M.J. 663] (ACCA, 30 March 2016). I disagree that this was legal error and, in my opinion, no corrective action is necessary.’

While it is unclear why the SJA arrived at his conclusion, it is certain his advice to the convening authority was erroneous. The holding in Williams squarely establishes Article 120c, UCMJ, does not encompass showing a person a photograph or digital image of one's genitalia.

U.S. v. Entzminger, supra

The Court of Criminal Appeals went on to explain that,

[n]onetheless, we note that recent changes to a convening authority's Article 60, UCMJ, power may place SJAs in an unusual position. The SJA is required to opine on legal error in his or her advice to the convening authority, see R.C.M. 1106, but the convening authority may now be powerless to remedy the error.

As an initial matter, when applicable, the SJA should advise the convening authority of the amendments to Article 60, UCMJ, implemented by the National Defense Authorization Act of 2014, removing the convening authority's power to disapprove the findings or the sentence in cases wherein the non-qualifying offense occurred after 24 June 2014 and explaining what power the convening authority does possess.³ Such advice, either in writing in the SJAR or given verbally, reliably informs the convening authority of her or his post-trial options.

In this case, appellant implored the convening authority to disapprove the Article 120c offense and reduce his sentence in his R.C.M. 1105 matters based on the noted legal error. This remedy was outside the bounds of the CA's authority. If the SJA had correctly noted the legal error to the convening authority, we see two possible avenues he could have recommended at that point.

First, while the convening authority had no power to disapprove a finding or reduce appellant's sentence, the SJA could nonetheless recommend that the convening authority return the case to the military judge pursuant to R.C.M. 1102(d) because this was a military judge alone case. This action would have allowed the military judge to consider the issue raised by appellant in his post-trial R.C.M. 1105 submission and consider taking corrective action.

A second, less timely, method of correction would have been to recommend that the convening authority approve the findings and sentence as adjudged and note the error for the convening authority—allowing this court to provide a remedy for error when one is required. This option, which prevents correcting the error at the trial level, at least provides accurate legal advice to the convening authority and highlights the issue for appeal.

Which option the SJA recommends to the convening authority will turn on many factors to include whether the court-martial was judge alone or with a military panel and the gravity of the error.

                                    CONCLUSION

The findings of guilty of the Specification of Charge II and Charge II are set aside and DISMISSED. The remaining findings of guilty are AFFIRMED.

Applying the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986) and the factors set forth in United States v. Winckelmann, 73 M.J. 11, 15–16 (C.A.A.F. 2013), we conclude that we can confidently reassess appellant's sentence without returning this case for a sentence rehearing.

In evaluating the Winckelmann factors, our decision does not result in a dramatic change in the penalty landscape as appellant's maximum exposure to confinement is reduced by only one year. Id. at 15-16. Because appellant was sentenced by a military judge as opposed to members, we are more likely to be certain of how the military judge would have sentenced appellant had he acquitted him of indecent exposure. Id. at 16. While the gravamen of the criminal conduct is reduced without the specification dismissed by our decision today, we have the familiarity and experience with the remaining offenses and can reliably determine what sentence would have been imposed at trial. Id. Furthermore, appellant received the benefit of his pretrial agreement, which limited his possible confinement to thirteen months. Based on the entire record and appellant's course of conduct, we can conclude the military judge would have imposed a sentence of at least that which was adjudged.

Reassessing the sentence based on the noted error and the entire record, we AFFIRM the approved sentence. All rights, privileges, and property, of which appellant has been deprived by virtue of that portion of the findings set aside by this decision are ordered restored.

Judge HERRING and Judge PENLAND concur.

U.S. v. Entzminger, supra

Aggravated Sexual Assault, Due Process and the Social-networking Websites

This post examines a recent opinion from the Court of Appeals of Texas – Houston: Whitfield v. State, 2017 WL 946757 (2017). The court begins the opinion by explaining that

Herman Ray Whitfield was convicted by a jury of aggravated sexual assault. See Tex. Pen. Code § 22.021(a)(2)(A)(iv) (West 2015). Appellant elected to have the trial court assess his punishment and pleaded true to the two felony enhancements alleged in his indictment. The trial court sentenced him to confinement for life. Appellant filed a motion for new trial, which the trial court denied after a hearing.

Whitfield v. State, supra.

Whitfield raised two issues in his appeal, but this post only examines one of them. The other issue was that the trial court judge should have sustained his objections based on his Sixth Amendment right to confrontation and Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), under circumstances where the State presented an expert DNA analyst who testified regarding her DNA comparison results instead of presenting all the technicians involved in the DNA testing process. 

Whitfield v. State, supra.

In his other issue, Whitfield argued that “the State's actions related to posting on social media about his trial were so egregious that they amounted to a denial of due process.” Whitfield v. State, supra. The Court of Appeals began its analysis of both of the issues Whitfield raised on appeal by explaining why, and how, he came to be charged with the crimes listed above.

Whitfield v. State, supra.

The opinion goes on to explain that

[t]rial evidence showed that on June 11, 2008, J.B., a high school student, took a bus over to her best friend's apartment in the Sunnyside area of Houston, Texas. They hung out for a few hours. After J.B.'s mother called her to return home, J.B. left the apartment. While J.B. was walking along a trail back to her bus stop, a man grabbed her and put a pocket knife to her neck. The man had dark skin, wore sunglasses and a baseball cap, and appeared to be in his 30's or 40's. The man forced J.B. under barbed wire fencing into the nearby grassy woods and slammed her body onto the ground, face down. The man forced down J.B.'s shorts and sexually assaulted her, then ran away, leaving J.B. in the grassy woods.

J.B.—shoeless, crying, shaking, scratched, and disheveled—returned to her friend's apartment. Her friend called 9–1–1 to report what had happened. HPD Officer Chillis responded. Chillis and J.B. returned to the grassy woods, where they located J.B.'s shoes. J.B. then was transported to the hospital, where she was examined by a sexual assault nurse examiner. The nurse examiner collected evidence from J.B., including the articles of clothing worn during the attack and a buccal swab from the inside of J.B.'s mouth. HPD Officer Landrum collected this evidence from the hospital. The investigation was assigned to HPD Officer McMurtry. McMurtry obtained J.B.'s statement, and a description of the suspect was released to the public.

Starting in 2010, the HPD Crime Lab began working through a large backlog of rape kits and evidence that needed to be tested for DNA, including evidence from J.B.'s case. In 2013, HPD Officer Whitlock became involved with the investigation. Whitlock obtained a search warrant for appellant's DNA and collected a buccal swab from him. Appellant was ultimately charged with the aggravated sexual assault of J.B. Appellant's indictment also alleged two prior felony convictions.

Whitfield v. State, supra.

The Court of Appeals went on to outline what happened at Whitfield’s trial:

[T]he State presented expert testimony from Lloyd Halsell and Amy Castillo regarding the DNA testing conducted in this case. Both Halsell and Castillo testified that at the HPD Crime Lab, DNA testing is conducted in an assembly-line or batch process. At the time, Halsell was a DNA analyst and supervisor at the HPD Crime Lab. He testified that, at the lab, technicians extracted, quantified, and amplified DNA from appellant's buccal swab. A portion of this amplified DNA was inserted into a lab instrument for analysis. The instrument `separate[d] out and visualize[d] the data,’ generating a known DNA profile for appellant. Halsell explained how positive and negative controls, as well as flushing protocols, are used to ensure that the instrument is not subject to cross-contamination among samples. Halsell further explained that the DNA profile consists of numerical code data on 15 individual short tandem repeat locations plus a sex-determining marker. The DNA profile or allele chart is unique to each individual except for identical twins. Halsell interpreted the DNA profile generated from appellant's buccal swab and determined that it reflected a complete male DNA profile from one known individual. According to Halsell, once DNA profiles are generated from known references, they can be compared to DNA profiles generated from evidentiary items.

At the time, Castillo also was a DNA analyst and supervisor at the HPD Crime Lab. Castillo testified that lab technicians performed DNA extraction, quantification, amplification, and separation from the buccal swab in J.B.'s rape kit, generating a known DNA profile for the victim J.B. In addition, evidence from J.B.'s rape kit and the clothing collected from J.B. were screened for potential body fluids. They tested negative for semen. However, lab technicians were able to extract, quantify, amplify, and separate out DNA from a bloodstain on J.B.'s shorts, generating an unknown DNA profile.

Whitfield v. State, supra. The opinion goes on to explain that

Castillo interpreted the known DNA profile generated from J.B.'s buccal swab and determined that it was a full DNA profile from a female single source. Castillo also interpreted the unknown DNA profile and determined that it was a full DNA profile from a male single source. As a result, Castillo was able to eliminate J.B. as the contributor of the blood on her shorts. Castillo then compared the allele charts for appellant's known DNA profile and for the unknown male DNA profile and determined that they were the same. Castillo concluded that appellant could not be excluded as the source:

The conclusion that we drew on that comparison is that Herman Whitfield cannot be excluded as a possible contributor to the profile from that item. We then do statistics to show the odds that another random individual could be included as a contributor to that profile, and what was calculated was 1 in 310 quintillion for Caucasian, 1 in 1.5 sextillion for African Americans, and 1 in 130 sextillion for southwest Hispanics.

Castillo explained that there are 21 zeros in a sextillion versus 9 zeros in a billion. According to Castillo, based on a world population of 7.7 billion, one would have to test `multiples of the world's population” “to find somebody else to include as a contributor to that profile.’

Whitfield v. State, supra.

The Court of Appeals went on to explain that the

jury returned a `guilty’ verdict. Appellant elected to have the trial court instead of the jury determine his punishment. Appellant entered into a stipulation of evidence with regard to the two prior felony convictions and pleaded true to both. The trial court sentenced appellant to life in prison.

Whitfield v. State, supra.

And that brings us to the issue this post examines. The opinion goes on to explain that,

[d]uring appellant's trial, the Harris County District Attorney's Office posted about appellant on its official Facebook and Twitter pages. The Facebook post included appellant's image and described him as the `Sunnyside Rapist’ `who has allegedly been tied to some 21[ ] sexual assaults in the Houston area.’ The Twitter post also included appellant's image and stated: `Herman Whitfield aka the sunnyside rapist is on trial this week. We are seeking justice for all his victims # trials.’ Appellant filed a motion for new trial, arguing that the State's use of social media violated the Texas Rules of Disciplinary Conduct, denied appellant due process, and caused an unfair trial. The trial court held a hearing. During the hearing, all of the jurors testified. They confirmed that they did not see any of the posts, that social media was not discussed during deliberations, and that they based their verdict solely on the trial evidence. The trial court denied appellant's motion.

Whitfield v. State, supra. The opinion then noted that “[a]ppellant timely appealed.” Whitfield v. State, supra.

As noted above one of the issues Whitfield raised on appeal was that

the State's use of social media in his case resulted in a denial of his due process rights and that he is entitled to a new trial. Appellant contends that the State's posting and `tweeting’ on social media about his trial violated rules 3.06(a)(2), 3.07(a), and 3.09(e) of the Rules of Disciplinary Conduct. See Texas Disciplinary R. Prof'l Conduct 3.06(a)(2) (“A lawyer shall not seek to influence a venireman or juror concerning the merits of a pending matter by means prohibited by law or applicable rules of practice or procedure.’), 3.07(a) (`In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.’), 3.09(e) (prosecutor should `exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07’).

Whitfield v. State, supra.

The court goes on to explain that

Appellant also contends that the State's actions constituted an attempt to violate article 36.22 of the Texas Code of Criminal Procedure, entitled “Conversing with jury.” See Tex.Code Crim. Proc. art. 36.22 (West 2015) (`No person shall be permitted to converse with a juror about the case on trial except in the presence and by permission of the court.’). Appellant acknowledges that the State was `unsuccessful’ in communicating to this jury in this case but nevertheless contends that `as a policy matter’ this court should reverse to put an end to the State's practice of posting about pending cases on social media.

Whitfield v. State, supra.

The Court of Appeals then noted that the

State's posting on social media about pending cases might present serious ethical and procedural concerns and might even compromise a defendant's due-process rights. However, our task is narrow: we are charged with reviewing whether the trial court abused its discretion in refusing to grant appellant a new trial in this case. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We do not substitute our judgment for that of the trial court but instead consider only whether the trial court's decision was arbitrary or unreasonable. See id. The trial judge is the fact finder at a hearing on a motion for new trial; we will not second-guess the trial court's judgment concerning the credibility of witnesses. See id.

Whitfield v. State, supra.

The court went on to explain that the

`touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.’ Benefield v. State, 389 S.W.3d 564, 571 (Tex. App.–Houston [14th Dist.] 2012, pet. ref'd) (quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). For an accused to receive a fair trial consistent with due process of law, the jury must determine his guilt or innocence solely on the basis of the evidence admitted at trial and not on the basis of facts or allegations appearing in the media. Narvaiz v. State, 840 S.W.2d 415, 428 (Tex. Crim. App. 1992).

Here, during voir dire, the trial court instructed the jury:

`[W]e want you to get all of the information here in the courtroom and not from any outside source. I don't know if there will be any publicity about this case or not, but I'm going to instruct you not to read any newspapers, not to watch the TV news, don't listen to the radio news.’

`If any of you are sports nuts or weather nuts, somebody can call you when the weather or sports come on; and you can watch that. Otherwise, you have to save the newspapers until another time. So, please don't listen to anything or read anything about the case.’

Whitfield v. State, supra.

The Court of Appeals also pointed out that the trial court judge "specifically instructed the jury":

`Also, when I say do not communicate about the case, that includes social media. So, just like you cannot talk to anyone about the case, you also can't put anything about it on your blog or your Facebook page. Don't tweet about it. Don't text about it. Don't e-mail about it.

That is the same as talking about it. So, we really mean don't communicate at all about the case.’. . .

`Should anyone contact you about the case or should you receive information from any source other than in the courtroom, be sure and let the bailiff know right away; and she will bring it to my attention.’

Whitfield v. State, supra.

The judge also instructed the jury that,

`[d]uring your deliberations in this case, you must not consider, discuss, nor relate any matters not in evidence before you. You should not consider nor mention any personal knowledge or information you may have about any fact or person connected with this case which is not shown by the evidence.’

The Court of Appeals then began the process of articulated its ruling in the case:

We generally presume that the jury followed the trial court's instructions. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998); Simon v. State, 374 S.W.3d 550, 552 (Tex. App.–Houston [14th Dist.] 2012, pet. ref'd). The record does not otherwise indicate that the jury did not follow the trial court's admonishments to avoid communications on social media and to base its verdict solely on the evidence.

In addition, during the hearing on the motion for new trial, each of the jurors testified. None of them saw or discussed any social media posts about the trial. All of the jurors stated that the verdict they rendered against appellant was based on the trial evidence. The trial court considered this testimony and was entitled to be the sole judge of the jurors' credibility. See Lewis, 911 S.W.2d at 7.

Appellant has not shown that the trial court abused its discretion in denying his motion for new trial. Therefore, we overrule appellant's second issue.

Whitfield v. State, supra.

Since the Court of Appeals had already rejected Whitfield’s Confrontation Clause argument, it affirmed the trial court’s judgment finding Whitfield guilty and sentencing him “to confinement for life.” Whitfield v. State, supra.

The Lawyer, His Business Associate and the Email

This post examines a recent opinion from the U.S. Court of Appeals for the 3rd Circuit: In re Grand Jury Matter #3, 847 F.3d 157 (2017). The court begins the opinion by explaining that

[t]his appeal presents an unusual question of appellate jurisdiction: May we continue to exercise jurisdiction over an appeal of an evidentiary ruling in a grand jury proceeding even after the grand jury has returned both an indictment and a superseding indictment? We conclude that, so long as the grand jury investigation continues, we retain jurisdiction and thus can resolve the controversy.

With jurisdiction, we turn to an important question involving the limits of the exception to the confidentiality normally afforded to attorney work product. It loses protection from disclosure when it is used to further a fraud (hence the carve-out is called the crime-fraud exception). The District Court stripped an attorney's work product of confidentiality based on evidence suggesting only that the client had thought about using that product to facilitate a fraud, not that the client had actually done so. 

In re Grand Jury Matter #3, supra.

The opinion goes on to explain that

Company A, John Doe, his lawyer, and Doe's business associate are the subjects of an ongoing grand jury investigation into an allegedly fraudulent business scheme. After the Government obtained access to an email Doe claims was privileged, it asked the District Court for permission to present it to the grand jury. The Court granted permission, finding that, although the email was protected by the work-product privilege, the crime-fraud exception to that privilege applied. Doe then filed an interlocutory appeal, requesting that our Court reverse the District Court's order.

While the appeal was pending, the grand jury viewed the email in question. It then indicted, his lawyer, and Doe's business associate for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (`RICO’), conspiracy to commit fraud, mail fraud, wire fraud, and money laundering. Thereafter the grand jury was discharged and a new grand jury was empaneled. It too saw the disputed email, and in December 2016 returned a superseding indictment that did not contain new charges but revisions to the previous ones. The grand jury investigation, however, continues still. What follows fleshes out this factual and procedural backdrop.

In re Grand Jury Matter #3, supra.

The court goes on to explain that

Doe was the sole owner of Company A and its president. Nonetheless a November 2008 document purports to memorialize Doe's sale of 100% of the shares of Company A to Company B for $10,000. Doe's business associate is the sole owner of Company B. Following this purchase agreement, Doe claims that the business associate engaged Doe to be responsible for Company A's day-to-day operations. However, numerous filings and tax documents suggested that Doe maintained control and ownership of Company A evenafter Doe's stock in it was purportedly transferred.

Over the last decade and a half multiple individuals have sued Doe and his businesses in state courts around the country based on Doe's business practices. One such lawsuit was a class action filed against Company A in Indiana state court. In it the plaintiffs alleged that Company A's business practices violated various Indiana state laws. They sought to hold Doe accountable for these violations. However, during this litigation Doe stated in a deposition in 2014 that he had transferred ownership of Company A to Company B. Doe's business associate then represented that Company A was no longer in business and had limited assets. Shortly after Doe's deposition, the Indiana plaintiffs settled their claims for approximately $260,000, about 10% of the value attorneys for the plaintiffs had put on them.

Thereafter the Government empaneled a grand jury to investigate Doe and his business associate. Its theory is that Doe owned Company A but tricked the plaintiffs into thinking that he had sold it to his business associate to encourage the plaintiffs to settle for a lower value. This relies on the premise that Doe has deep pockets but his business associate does not.

In re Grand Jury Matter #3, supra.

The opinion then explains how, and why, the case arose:

In the course of its investigation, the grand jury subpoenaed Doe's accountant requesting that he provide the Government with Doe's personal and corporate tax returns. Among other things, these tax documents revealed that Doe had claimed 100% ownership of Company A every tax year from 2008 through 2012. The accountant also told an IRS agent that, at some time in 2013, Doe's lawyer informed him that Doe had sold Company A in 2008. He also informed investigators that he might have taken notes on this conversation. The Government requested them, and the accountant's attorney sent the Government three documents.

One of the documents was an email Doe had sent to the accountant on July 16, 2013, forwarding an email that Doe's lawyer had sent to Doe four days earlier that referenced an ongoing litigation. The attorney email advises Doe of the steps he needed to take to correct his records so that they reflect that the business associate, not Doe, owned Company A since 2008. When Doe forwarded this email to his accountant, he simply wrote: `Please see the seventh paragraph down re; my tax returns. Then we can discuss this.’ There is no evidence that Doe ever amended his returns or did anything else, apart from forwarding the email, to follow up on his attorney's advice. Indeed, the accountant's recollection is that Doe's attorney later said not to go through with the amendments by telling the accountant to `stand by’ for further guidance. It never came.

The day after the accountant provided this email to the Government, the accountant's attorney sought to recall it on the ground that it was privileged and had been inadvertently included in his client's production. The accountant's counsel, however, also told the Government that his client believed the email was asking the accountant to perform an accounting service, not a legal service. The Government argued that under these circumstances Doe waived any privilege that might have otherwise attached to his lawyer's email. It did, however, temporarily refrain from presenting it to the grand jury and asked the District Court in January 2015 for permission to do so, which Doe opposed.

The Court ruled in the Government's favor. Its rationale was that Doe did not forward the email to his accountant to seek legal advice. Lacking that precondition, no attorney-client privilege attached to the document. However, the Court did find that the attorney work-product privilege attached to the email because the accountant could not be considered an adversary. It then concluded that the crime-fraud exception to the work-product privilege applied. On this basis, the Government could present the email to the grand jury.

In re Grand Jury Matter #3, supra.

This section of the opinion goes on to explain that

[i]mmediately after the District Court made its decision, Doe filed an interlocutory appeal requesting that we reverse its order. As noted above, while the appeal to our Court was pending the grand jury saw the email and later returned a 17–count indictment charging Doe, his lawyer, and Doe's business associate with RICO conspiracy, conspiracy to commit fraud, mail fraud, wire fraud, and money laundering.

In re Grand Jury Matter #3, supra.

The government argued that the court should not

exercise jurisdiction because the first grand jury returned an indictment and the succeeding grand jury returned a superseding indictment.

The grand jury proceedings have yet to conclude, however. On at least two occasions we have continued to exercise jurisdiction even after grand juries returned indictments. In the first case, the Government appealed an adverse ruling on a grand jury subpoena. At the outset of the appeal, our jurisdiction was clear because Congress had specifically given the Government the right to seek immediate review. See In re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1040 (3d Cir. 1980) (citing 18 U.S.C. § 3731). As the appeal was pending, however, the grand jury returned an indictment. We nonetheless concluded that, as long as the indictment did not render the appeal moot, we had jurisdiction to reach the merits. Because in that case the indictment `did not bring the grand jury's proceedings to [their] conclusion,’ a live controversy remained and our jurisdiction was intact. Id.

In re Grand Jury Matter #3, supra. The opinion goes on to explain that because, in another, similar case in which the issue related to “the still-ongoing review of his emails (thus giving us a live controversy), we continued to exercise jurisdiction . . . even after the indictment. Id.

In re Grand Jury Matter #3, supra.

The Court of Appeals went on to explain that

[w]hen we are able to dismiss an appeal for lack of jurisdiction as soon as it is filed, the process continues uninterrupted in the trial court, and we are able to wait until all the appellate issues are wrapped up after a final judgment. But because in limited circumstances we take pre-indictment appeals and begin to decide them, we should not reflexively dismiss those appeals—wasting the parties' effort as well as ours—simply because an indictment is filed. Instead, if grand jury proceedings continue, we may still exercise jurisdiction in order to remedy future harm. Consider our case, which has been on our docket since June 2015. By the time Doe was indicted nearly ten months had passed, and the parties had fully briefed the case and presented oral arguments to us. If we then send the case back to the District Court on the rationale that our jurisdiction was pulled by the indictment, we would do so with it likely that the issue would return if there is a conviction. And if Doe is convicted and files an appeal, the parties will need to re-brief and re-argue the same issue that we could have resolved already. Thus in cases where we accept an appeal when it is filed, efficiency favors finishing what we started. 

In re Grand Jury Matter #3, supra.

The court went on to explain that

[h]aving concluded that our appellate jurisdiction continues, we now address the merits and hold that the crime-fraud exception to the attorney work-product doctrine does not apply to the email at issue. One of the exception's two requirements—the use of the communication in furtherance of a fraud—is lacking. The use-in-furtherance requirement provides a key safeguard against intrusion into the attorney-client relationship, and we are concerned that contrary reasoning erodes that protection.

Without the crime-fraud exception allowing the Government to show it to the grand jury, the email from Doe's lawyer is protected by the attorney work-product doctrine. That doctrine (often referred to as a privilege from or exception to disclosure), which is a complement to the attorney-client privilege, preserves the confidentiality of legal communications prepared in anticipation of litigation. Shielding work product from disclosure `promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients.’ Westinghouse Elec. Corp. v. Republic of Phil., 951 F.2d 1414, 1428 (3d Cir. 1991). Though Doe waived the attorney-client privilege by forwarding the email to his accountant, the document still retained its work-product status because it was used to prepare for Doe's case against those suing him. See id.

In re Grand Jury Matter #3, supra.

The opinion goes on to explain that

[y]et work-product protection, though fundamental to the proper functioning of the legal system, is not absolute. As relevant here, the crime-fraud exception operates to prevent the perversion of the attorney-client relationship. It does so by allowing disclosure of certain communications that would otherwise be confidential. `[A] party seeking to apply the crime-fraud exception must demonstrate that there is a reasonable basis to suspect (1) that the [lawyer or client] was committing or intending to commit a crime or fraud, and (2) that the ... attorney work product was used in furtherance of that alleged crime or fraud.’ ABC Corp., 705 F.3d at 155.

The Government can readily satisfy the first requirement. Though ultimately it will be up to a jury to determine whether Doe committed fraud, there is at least a reasonable basis to believe he did. Even setting aside the email, the Government has a recording where Doe allegedly brags about defrauding the class action plaintiffs in the Indiana suit. He purportedly admits in that recording to telling his associate—the same one who was supposed to have already purchased Company A—`I'll pay you ten grand a month if you will step up to the plate and say that you [own the company] and upon the successful completion of the lawsuit [I'll] give you fifty grand.’

This evidence is strong, but it is not sufficient by itself to pierce the work-product protection. We have been clear that `evidence of a crime or fraud, no matter how compelling, does not by itself satisfy both elements of the crime-fraud exception.’ In re Chevron Corp., 633 F.3d 153, 166 (3d Cir. 2011). Rather, the second requirement—use in furtherance—exists for the same reason that certain conspiracy statutes require proof that a defendant engaged in an overt act to further the crime. In both settings we want to make sure that we are not punishing someone for merely thinking about committing a bad act. Instead, as Justice Holmes noted in the conspiracy context, we ask for evidence that the plan `has passed beyond words and is [actually] on foot.’ Hyde v. United States, 225 U.S. 347, 388 (1912) (Holmes, J., dissenting).

In re Grand Jury Matter #3, supra.

The court goes on to point out that,

[t]o illustrate, if a client approaches a lawyer with a fraudulent plan that the latter convinces the former to abandon, the relationship has worked precisely as intended. We reward this forbearance by keeping the work-product protection intact. If, by contrast, the client uses work product to further a fraud, the relationship has broken down, and the lawyer's services have been `misused.’ In re Grand Jury Investigation, 445 F.3d 266, 279 (3d Cir. 2006). Only in that limited circumstance—misuse of work product in furtherance of a fraud—does the scale tip in favor of breaking confidentiality.

Here the only purported act in furtherance identified by the District Court was Doe forwarding the email to his accountant. If he had followed through and retroactively amended his tax returns, we would have no trouble finding an act in furtherance. Even if Doe had told the accountant to amend the returns and later gotten cold feet and called off the plan before it could be effected, there might still be a case to be made. That is because the Government `does not have to show that the intended crime or fraud was accomplished, only that the lawyer's advice or other services were misused.’ Id. (quoting In re Public Defender Serv., 831 A.2d 890, 910 (D.C. 2003)).

In re Grand Jury Matter #3, supra.

The court goes on to explain that

[b]ut none of that happened. Doe merely forwarded the email to the accountant and said he wanted to `discuss’ it. There is no indication he had ever decided to amend the returns, and before the plan could proceed further the lawyer told the accountant to hold off. Thus Doe at most thought about using his lawyer's work product in furtherance of a fraud, but he never actually did so. What happened is not so different than if Doe merely wrote a private note, not sent to anyone, reminding himself to think about his lawyer's suggestion. The absence of a meaningful distinction between these scenarios shows why finding an act in furtherance here lacks a limiting principle and risks overcoming confidentiality based on mere thought.

The District Court gave two reasons for its conclusion that Doe used his lawyer's work product in furtherance of a fraud. First, it suggested that Doe, in forwarding the email to his accountant, `took [his lawyer's] advice’ about amending the tax returns. J.A. 16. It is not clear what the Court meant by this because, as it acknowledged, Doe `never followed through with amending’ the returns. Id. Second, the Court said that the failure to follow through `is of no consequence’ as long as Doe intended, as of the time he forwarded the email, to amend the returns. Id. This is no doubt an accurate statement of the law. See ABC Corp., 705 F.3d at 155. The problem is that there is simply no record evidence suggesting that Doe had ever made up his mind.

None of this should suggest that, in the event Doe is convicted (based on the superseding indictment) and appeals, he should automatically get a new trial because the Government used the protected work product. That is because the Government could avoid a retrial by showing the error was harmless. Bankof Nova Scotia v. United States, 487 U.S. 250, 255–56 (1988). We express no opinion on that question.

In re Grand Jury Matter #3, supra.

The court ended the opinion with this paragraph:

Many appeals involving grand jury proceedings will become moot after the return of an indictment. But the presence of a new grand jury that is continuing to investigate even after issuing a superseding indictment makes this case out-of-lane. As a live controversy remains, an indictment does not automatically preclude us from deciding it. When we do so, we conclude that the crime-fraud exception to the attorney work-product privilege does not apply to the email at issue. We therefore reverse the decision allowing the breach of that privilege.

In re Grand Jury Matter #3, supra.