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In re Matter of Grand Jury Proceeding

October 16, 1995

IN THE MATTER OF GRAND JURY PROCEEDING.

APPEAL OF: MARTY BARTON



Appeal from the United States District Court for the Southern District of Illinois. No. 94 GJ 77 -- Michael M. Mihm, Chief Judge.

Before CUMMINGS, ROVNER and D. WOOD, Circuit Judges.

CUMMINGS, Circuit Judge.

ARGUED SEPTEMBER 6, 1995

DECIDED OCTOBER 16, 1995

Barry Short acted as attorney for appellant Marty Barton in relation to federal grand jury subpoenas issued to Barton in 1991. In his 1994 appearance before the grand jury, Short asserted the attorney-client privilege, refusing to answer five questions regarding the production of documents pursuant to the 1991 subpoena. The district court issued an order granting the government's motion to compel Short's testimony. Barton, as holder of the attorney-client privilege and intervenor in the government's motion, seeks review of the district court's order. We affirm.

I. Facts

In 1991, the United States Department of Labor and a federal grand jury sitting in the Southern District of Illinois began investigating an alleged scheme in which certain union members, including Barton, were paid "retainers" by a lawyer, Stephen Tillery, for referring injured union members to the lawyer. Barton, a layman, maintained throughout that he was employed by the attorney's law firm as an expert in the railroad industry to investigate client matters. Nonetheless, a subpoena duces tecum dated June 26, 1991 was issued to Barton in his personal capacity. The subpoena required production of "Any written correspondence or memorandum between [Barton] and any member, associate or employee of [the law firm], pertaining to any services [Barton] provided to the firm, its members, associates or employees and its clients." Barton moved to quash the subpoena on the grounds that he was the subject of a grand jury investigation and that the Fifth Amendment privilege protected him from producing the documents.

A second subpoena duces tecum was issued to Barton on August 1, 1991, but this time in his capacity as General Chairman of the United Transportation Union. The subpoena sought "Any correspondence sent and prepared by [Barton] in your capacity as General Chairman or Local Chairman, to union members regarding Stephen Tillery" and "Any correspondence received by [Barton] in your capacity as General Chairman or Local Chairman, from Stephen Tillery [and two other members of the law firm]." Barton, through his attorney Short, submitted documents Bates stamped 1 through 35 in response to the second subpoena on August 16.

The district court on April 23, 1992 granted Barton Doe immunity, see United States v. Doe, 465 U.S. 605, for "the act of producing" documents pursuant to the first subpoena and ordered Barton to produce the documents. Barton, again through Short, delivered numerous documents to the government on May 20. The documents produced included the same documents Bates stamped 1 through 35 produced under the second subpoena and additional documents stamped 36 through 48.

On July 22, the grand jury returned two indictments, including one against Barton and others for interstate travel in aid of racketeering, mail fraud, and conspiracy. During the trial, the district court relied on the Doe immunity to deny the government's motion to admit some of the memoranda produced by Barton as false exculpatory evidence. Barton was acquitted on all counts except two, on which the jury was hung. Thereafter, the grand jury initiated an investigation to determine in part whether the documents, Bates stamped 1 through 48, concerning Barton's alleged investigative work with the law firm were false and fraudulent.

After the testimony of two witnesses before the grand jury cast at least some doubt on the authenticity of Barton's documents, Short was called to testify. Short was questioned regarding the production of documents under the two subpoenas; he refused to answer five of the questions based on the attorney-client privilege:

Q. For the purpose of either of those subpoenas did you yourself conduct a search?

A. I did not.

Q. Did you direct someone else ...


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