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United States v. Boender

March 8, 2010

UNITED STATES OF AMERICA
v.
CALVIN BOENDER



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

This opinion follows an in camera evidentiary hearing that was held on March 2, 2010, pursuant to Federal Rule of Evidence 104(a). The hearing was held to determine the admissibility at trial of certain communications between Defendant, Calvin Boender ("Boender"), and his prior attorneys, particularly communications with Attorney Daniel Reidy ("Reidy"). The Court held the hearing after concluding that, on the basis of a detailed proffer set forth in its briefs, the Government had made a threshold showing [see 117] that the crime-fraud exception to the attorney client privilege applies to the communications at issue. See United States v. Zolin, 491 U.S. 554, 566-68 (1989) (trial judge may conduct in camera hearing regarding the crime fraud exception; locating the authority in Fed. R. Evid. 104(a)); In re Grand Jury Proceedings, 220 F.3d 568, 571 (7th Cir. 2000) ("Only when the district court has been exposed to the contested documents and the specific facts which support a finding of privilege under the attorney-client relationship * * * can it make a principled determination as to whether the attorney-client privilege in fact applies").

The hearing lasted for several hours, during which time the Court allowed both parties the opportunity to present evidence and heard from three witnesses-Mr. Reidy, as well as two other lawyers who worked for Mr. Boender, Michael O'Connor ("O'Connor") and Victor Arana ("Arana").*fn1 The testimony at the hearing spoke to two outstanding motions in limine filed by the parties [86, 94]. Those motions, as well as the supporting and response briefs, have been carefully considered. The Court is now prepared to issue its rulings.*fn2

For the reasons set forth below the Government's motion in limine "To Admit Evidence Concerning Document Production, or in the Alternative, to Conduct in Camera Inquiry" [86], is granted. Boender's motion in limine "To Exclude Any and All Testimony, Reference To Testimony, Argument Relating to Testimony, or Evidence Obtained Regarding Dan Reidy" [94] is denied. Boender's filings related to certain issues that are included in his motion are unsupported by evidence. Moreover, the evidence received at the in camera hearing indicates that the allegations directed toward Mr. Reidy and the Government attorneys are not well taken.

I. The Government's Motion in Limine to Admit Evidence Concerning Document Production [86] and its Request Subsequent to the in Camera Hearing

A. Procedural Posture and the Government's Narrowed Request

The Government's motion in limine [86] sought to have provisionally admitted into evidence the following based on the crime-fraud exception: testimony by "Reidy, his colleague James Dunlop, or any other person with knowledge about the document production process * * * to explain how GJ 0000008 [an allegedly fraudulent invoice] came to be discovered, identified, duplicated and labeled as part of a batch of documents to be produced to the grand jury." Pl. Mot. at 4 (emphasis added). The Government also sought a ruling on the admissibility of statements "made by defendant Boender to Mr. Reidy or Mr. Dunlop about [the invoice], specifically statements made for the purpose of transmitting the documents or communicating any information about the document to the government * * * [excluding] privileged communications made for the purpose of obtaining legal advice." Id.

In its post-hearing memorandum [141], the Government has put a finer point on the scope of its request. In particular, the Government has narrowed its request, singling out specific statements and interactions that fall within the Government's broader request. It now seeks to have provisionally admitted into evidence the following testimony, based on the crime-fraud exception to the attorney-client privilege:

 A late February 2008 conversation between Boender and Michael O'Connor regarding a folder of documents, including GJ 0000008 (the "invoice"), to be included in the documents collected in response to a grand jury subpoena;

 A February 25, 2008 conversation between Boender and Reidy regarding the existence of the invoice; and

 A February 27, 2008 conversation between Boender and Reidy, prior to Reidy's meeting with the Government, regarding the authenticity of the invoice.

In addition, as the Government did prior to the in camera hearing (see Pl. Mot. at 4, 10-11), it continues to seek a ruling on the admissibility of an e-mail from Dan Reidy to the Government, dated February 29, 2008. In the e-mail, Reidy stated that the invoice "was not prepared on or about the September 8, 2004 date it bears and was not sent to the named addressee." Pl. Mot., ex. 2 at 1. The Government contends that it should be allowed to offer the e-mail as an admission under Federal Rule of Evidence 801(d)(2)(D).

After the hearing, Mr. Boender filed a "Post Hearing Brief on Attorney-Client Privilege" [142], in which he continues to contend that the attorney-client privilege applies. Boender's motion expresses his "belie[f] that the testimony of Mr. Reidy [was] false." Def. Mem. at 3. The Court respectfully disagrees. As explained below, the evidence received at the hearing served ...


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