United States of America, Plaintiff-appellee, v. Alfredo Flores, Defendant.in the Matter of Robert L. Thorp, Witness-appellant, 628 F.2d 521 (9th Cir. 1980)

Appellant, an attorney, appeals from an order of the district court committing him as a recalcitrant witness, pursuant to 28 U.S.C. § 1826, for his willful disobedience of an order of the court to answer certain questions during a pretrial hearing in the matter of United States v. Alfredo Flores, C.R. No. 79-320 SW. Appellant is at liberty on his own recognizance pending this appeal. We affirm.

Facts

In 1978 appellant was employed with a law office that was consulted by a group of people, many of whom were members or associates of the Hell's Angels Motorcycle Club, about filing of a large, joint civil rights action. After interviewing approximately seventy clients and potential plaintiffs, appellant prepared approximately fifteen administrative claims, one of which was for an Alfredo Jiminez Flores and which is set forth in full in the margin.¹  In this claim Flores alleged that his residence had been searched and property, including a firearm, was seized. In due course, the contemplated civil rights action was filed by an attorney not associated with the appellant or the law office in which he worked.²  An Alfredo Flores is a named plaintiff, although the attorney who filed the action has stated in his affidavit that Flores did not authorize him to file the action on behalf of Flores.

On September 12, 1979, Flores was indicted for a violation of 18 U.S.C.App. § 1202 (felon in possession of a firearm). The government seeks to introduce the administrative claim filed by the appellant on behalf of an Alfredo Flores to show that the accused Flores possessed a firearm. Prior to trial Flores filed a motion-in-limine to exclude the civil claim, inter alia, as hearsay. On April 16, 1980, appellant was called to take the stand by the government to establish a foundation for admission of the claim as an authorized statement of an agent of Flores. Rule 801(d) (2) (C) and (D), Fed.R.Evid. The pertinent portion of the transcript of this effort by the government is set forth in the margin.³  The critical questions asked by the court are as follows:

"Was that (the information in the claim) given to you by the client, that information?

"Did the person named Flores give that to you?"

"In this case, was it obtained from another source?"

"Was the other source a client?"

As the transcript reveals, appellant refused to answer on the ground that the attorney-client privilege required his silence.

The court ordered appellant to respond to the questions. Following his refusal to answer, the court recessed to give the appellant an opportunity to obtain counsel and the matter was set for a hearing to show cause on contempt. On April 25, 1980, appellant moved to dismiss the contempt charge and submitted an affidavit, the pertinent portions of which we set forth in the margin.⁴  In substance, appellant's affidavit states that the information set forth in the claim he filed on behalf of Alfredo Flores came from "more than one client," including, but not limited to, clients X and Y. The affidavit leaves open the question whether any information came from appellant's client Alfredo Flores.

On May 15, 1980, at the show cause hearing, appellant's affidavit was presented and no further information was divulged. The court adjudged appellant in civil contempt under 28 U.S.C. § 1826 and ordered that appellant be committed to the custody of the U. S. Marshal until he obeys the order to testify or the expiration of the matter of United States v. Alfredo Jiminez Flores, and in any event no longer than eighteen months. Appellant was released on his own recognizance pending appeal of the contempt judgment. This appeal was timely filed.

Appellant does not argue that his April, 1980 affidavit was adequately responsive to the questions asked. Nor could he do so. He has neither acknowledged that any information in the claim was supplied by his client Flores nor has he denied that Flores supplied some of the information. In addition, he has not stated that he does not remember whether Flores supplied any information. It follows that appellant's success on this appeal depends upon the force of other contentions. Appellant advances three such contentions. First, he insists that his failure to respond completely is justified by the attorney-client privilege. Next he contends that the questions and desired answers have for reasons set forth later ceased to be relevant to the criminal proceeding against Flores, and finally, he asserts that contempt is improper because he presently is unable to comply with the district court's order to testify and, in any event, the sentence was excessive under the circumstances. We reject each of these contentions and affirm the judgment of contempt and the sentence imposed.

THE ATTORNEY-CLIENT PRIVILEGE

Our decisions make clear the elements necessary to the successful invocation of the attorney-client privilege and the locus of the burden of proof with respect to the application of the privilege to specific facts. See Matter of Fischel, 557 F.2d 209, 211 (9th Cir. 1977) (elements of privilege); United States v. Landof, 591 F.2d 36, 38 (9th Cir. 1978) (burden of proof). These authorities establish that the appellant must show that he is being ordered to disclose communications obtained from a client during the course of the client's search for legal advice from the appellant in his capacity as a lawyer which were made in confidence by the client to the appellant, and that the privilege with respect to these communications has not been waived.

Responsive answers to the questions put by the court would not be within the attorney-client privilege. Appellant's failure to carry his burden is attributable to the fact that the circumstances set forth in the administrative claims obviously were not intended to remain confidential and to the long established proposition that the identity of the client is not a confidential communication. In re Michaelson, 511 F.2d 882, 887-89 (9th Cir.), cert. denied, 421 U.S. 978, 95 S. Ct. 1979, 44 L. Ed. 2d 469 (1975). Nor does there appear to exist any reason why the authority of an attorney to file a claim on behalf of a client cannot be ascertained by the type of questions asked by the court in this case. Obviously it cannot be seriously urged that, because of the privilege the existence of authority on the part of an attorney to file a public document on behalf of a client cannot be required to be revealed. The questions asked by the court sought no more than an affirmation or denial, as the case may be, of that authority.

It by no means follows, however, that an inquiry concerning authority to file a public document can be employed as a device to pierce the privilege. Thus, an attorney's affirmation or denial cannot be tested by cross-examination regarding the confidential communications to him by his client that led him to conclude that authority did, or did not, exist. Compare Chirac v. Reinicker, 24 U.S. (11 Wheat) 280, 6 L. Ed. 474 (1826). The court's questions in this case do not invade that territory, however.

Appellant, reasoning by analogy, argues that the exception to the general rule that the identity of the client is not privileged, which was employed by this court in Baird v. Koerner, 279 F.2d 623, 630 (9th Cir. 1960), is applicable here. Specifically, he points out that Baird held that, when disclosure of the identity of the client creates a strong probability that the client will be implicated in the very criminal activity for which legal advice was sought, the privilege may be invoked to avoid disclosure of the client's identity. To reveal whether Flores authorized the filing of the claim, appellant argues, will implicate Flores in criminal activity and thus should be within the privilege.

We hold that the Baird exception is not applicable to this case. In the first place, the consultation by Flores was not with respect to criminal activity. Its purpose was to file a civil claim against the City of San Jose. Second, under the facts as they exist on this record, it is by no means clear that appellant's answer would implicate Flores in any manner. It must be remembered that it is possible that clients X and Y, not Flores, authorized the filing of the claim. Finally, at worst the claim is only circumstantial evidence that the Alfredo Flores charged in United States v. Alfredo Flores, C.R. No. 79-320 SW is the same Alfredo Flores named in the administrative claim.III.

RELEVANCE OF QUESTIONS

Appellant also argues that the district court's judgment of contempt and sentence is invalid because the questions no longer are relevant to the government's proceeding against Alfredo Flores. Lack of relevance is predicated upon the district court's ruling that the claim filed by the appellant is admissible notwithstanding appellant's refusal to answer the questions with which we are concerned. It is true that refusal to answer a question which is of no assistance to the interrogator does not constitute a material obstruction of justice. Grudin v. United States, 198 F.2d 610 (9th Cir. 1952). In this case, however, the appellant's response to the questions posed by the government would either strengthen or weaken its case against Alfredo Flores because, if authorized, the administrative claim becomes an authorized admission within the meaning of Rule 801(d) (2) (C) and (D), Fed.R.Evid., and far more damaging to Alfredo Flores than would be an unauthorized claim admitted merely as circumstantial evidence of a connection between Flores and the claim. Evidence is relevant when it tends to make any fact of consequence more or less probable, as the case may be, than it would be without the evidence. Rule 401, Fed.R.Evid. It follows, therefore, that the questions posed to the appellant sought relevant evidence.

ABILITY OF APPELLANT TO COMPLY WITH COURT'S ORDER AND

LEGALITY OF SENTENCE

Building on his argument pertaining to relevance, appellant insists that because the district court has determined that the claim is admissible the proceeding in which he refused to answer has terminated. Its termination renders it impossible to respond in that proceeding and this impossibility extinguishes his contempt. See Maggio v. Zeitz, 333 U.S. 56, 76, 68 S. Ct. 401, 411, 92 L. Ed. 476 (1948); Shillitani v. United States, 384 U.S. 364, 371, 86 S. Ct. 1531, 1536, 16 L. Ed. 2d 622 (1966).

We would agree with the appellant were his minor premise (viz., that the proceeding out of which appellant's contempt sprang has terminated) a correct statement of the facts. We hold that it is not. The proceeding against Alfredo Flores has not been concluded, and it remains relevant whether the claim was authorized. It is not necessary for us to determine at what point the proceedings in which appellant refused to obey the district court's order will terminate. It is enough to hold that the district court's decision to admit the claim in the motion-in-limine hearing and the conclusion of that hearing did not terminate the proceedings in which appellant refused to obey a proper order of the district court.

Finally, appellant argues that because of his lack of experience in the practice of law, his meager resources, and the necessity to support his family, his sentence should be reduced to a small fine or conditional volunteer work. Any more severe sanction exceeds that "minimally necessary" to obtain compliance, the appellant argues.

We acknowledge that the district court "should apply the least coercive sanction (e. g., a monetary penalty) reasonably calculated to win compliance with its orders." Matter of Grand Jury Impanelled January 21, 1975 (Freedman), 529 F.2d 543, 551 (3d Cir.), cert. denied, 425 U.S. 992, 96 S. Ct. 2203, 48 L. Ed. 2d 816 (1976). However, it is also true that we defer considerably to the judgment of the district court in fashioning the appropriate sentence because of its proximity to the events out of which the contempt springs. Its judgment will be disturbed only if it has abused its discretion. United States v. Asay, 614 F.2d 655, 660 (9th Cir. 1980); Shibley v. United States, 236 F.2d 238 (9th Cir.), cert. denied, 352 U.S. 873, 77 S. Ct. 98, 1 L. Ed. 2d 125 (1956). We find no abuse of discretion here. The district court could reasonably conclude that only the sentence imposed could reasonably be expected to secure compliance.

Affirmed.