United States v. Evans

113 F.3d 1457 (7th Cir. 1997)

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Nature of the Case

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Facts

D was indicted on charges of racketeering (including acts of extortion, accepting bribes, and official misconduct), filing false tax returns, and obstruction of justice. After learning that his long-time friend and occasional client had been implicated in the investigation, attorney John Holden, who is also a Chicago police officer, contacted D and spoke with him about D's interviews with FBI agents. Holden arranged for and scheduled D to meet with three criminal defense attorneys so that D could explain his situation, seek legal advice, and decide which of the three attorneys, if any, to retain. After scheduling an appointment on D's behalf with attorney James Koch, Holden took Evans to Koch's office where the three conferred. Koch testified that Holden phoned and informed him that D was going to be indicted and needed legal representation, and asked if D and he could come and meet with Koch regarding Koch's possible representation. There was no mention, however, of any business or legal relationship between D and Holden. The three men met later that morning. Koch testified that prior to any sort of substantive discussions regarding the nature of the charges against D, he expressed concerns about Holden's presence in the room and its consequences as to the confidentiality of the conversation. Koch was told that Holden was a police officer and a friend, that he was there in that capacity, that he was there as a potential character witness should that ever come to light. D said he understood the nature of what Koch was telling him and that D wanted Holden to be present for the conversation. Koch added that he had requested that Holden leave the conference room, but that D requested that he stay. Koch also testified that Holden never indicated that he was there as an attorney for D, rather, 'he indicated he was there as a friend and, as I said, a potential character witness.' P moved in a pretrial motion in limine to admit the testimony of Koch which D asserts is protected by attorney client privilege. The court ruled against D and D took this interlocutory appeal.