10-2652 U.S. v. Boender

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Criminal Procedure
Attorney-client privilege; crime-fraud exception; in camera hearings

It was not an abuse of discretion for the district court to hold an adversarial in camera hearing to determine whether the crime-fraud exception permitted the admission of attorney-client communications.
“[W]e hold that the decision of how to structure in camera hearings is properly within the discretion of the district court. So long as the government meets its threshold burden justifying an in camera hearing, the district court is free to hold adversarial hearings when it determines that the benefit of those hearings outweighs the risk of compromising matters legitimately subject to the attorney-client privilege. And here, the district court did not abuse its discretion in holding an adversarial in camera hearing to determine the existence of the crime-fraud exception. As we noted above, there was ample evidence to suggest that an in camera hearing would help clarify whether the crime-fraud exception would apply. The district court noted the strength of the evidence the government presented in its detailed proffer, but rather than decide whether the crime-fraud exception applied on the basis of that evidence alone, it ordered an in camera hearing. This is not a case of the government fishing for clues amid otherwise privileged information; rather, the purpose was to confirm what was strongly suggested by the evidence, that the crime-fraud exception would apply. Moreover, when Boender’s attorney objected to the presence of the government, the judge explained that he did not think an ex parte proceeding would be as useful nor that he would be able to resolve the matter without an adversarial hearing. Finally, the risk of misuse of privileged information was virtually nill: there was already compelling evidence that Reidy’s testimony was not privileged, and the court reasonably concluded that sealing the transcript of the hearing and ordering the government not to use anything that is privileged would ‘obviate any possible prejudice to the defendant.’”

Affirmed.

10-2652 U.S. v. Boender

Appeal from the United States District Court for the Northern District of Illinois, Dow, J., Manion, J.

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