In Re Grand Jury No. 94-1, 76 F.3d 386 (9th Cir. 1996)

MEMORANDUM^*** 

This is an appeal of the district court's order compelling an attorney to testify before a grand jury. The attorney had invoked the attorney-client privilege before the grand jury. The district court ruled that the crime-fraud exception applies. We agree and affirm.

We have held that the attorney-client privilege does not extend to "communications which solicit or offer advice for the commission of a crime or fraud." In re Grand Jury Subpoena 92-1(SJ), 31 F.3d 826, 829 (9th Cir. 1994) (internal quotation omitted). To invoke the crime-fraud exception to the privilege, the government must make a prima facie showing "that the attorney was retained in order to promote intended or continuing criminal or fraudulent activity." United States v. De La Jara, 973 F.2d 746, 748 (9th Cir. 1992) (internal quotations omitted). An in camera review of privileged information may be used to establish whether the crime-fraud exception applies. United States v. Zolin, 491 U.S. 554, 572 (1989). The government must merely make a threshold showing "of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies." Id. (internal quotation and citation omitted).

We agree with the district court that the government made a sufficient showing to support a reasonable good-faith belief that review of the privileged documents could reveal evidence to establish the crime-fraud exception. We also agree that the government established the prima facie evidentiary showing necessary to invoke the crime-fraud exception. The district court found that the public and in camera materials suggest that the attorney "was contacted with the specific purpose of assisting in further crime." This is precisely what the government was required to demonstrate. See De La Jara, 973 F.2d at 748.

We reject the argument that the district court's in camera review violates due process. See In re Grand Jury Proceedings, 867 F.2d 539, 541 (9th Cir. 1989) (district court's in camera inspection of materials upon which the government based its showing of the crime-fraud exception does not violate due process); see also In re Grand Jury Proceedings, 33 F.3d 342, 351-53 (4th Cir. 1994) (same); In re John Doe, Inc., 13 F.3d 633, 635-37 (2d Cir. 1994) (same).

AFFIRMED.