United States v. Schwimmer

924 F.2d 443 (1991)

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United States v. Schwimmer

United States Court of Appeals for the Second Circuit
924 F.2d 443 (1991)

  • Written by Sharon Feldman, JD

Facts

Schwimmer and Renda (defendants) were indicted for offenses relating to certain commissions. Before indictment, Schwimmer and Renda each retained counsel who agreed to cooperate in matters related to the investigation and the defense of any charges. The lawyers hired an accountant to analyze the financial transactions relating to the commissions. Schwimmer provided information to the accountant with the understanding that the conversations would be protected by attorney-client privilege. Schwimmer was convicted and argued on appeal that his Sixth Amendment right to counsel was violated when the government (plaintiff) obtained attorney-client privileged information from the accountant. The court of appeals remanded the case to the district court for an evidentiary hearing to determine whether the government’s case was derived from a violation of privilege. The evidentiary hearing established: (1) the accountant met with the government three times and provided a copy of the accountant’s workpapers; (2) two of the meetings were held to determine a forfeiture amount for Renda; (3) the agent who obtained the workpapers told the assistant U.S. attorney (AUSA) there was nothing new in the workpapers, and the other agent never possessed or discussed the workpapers; (4) the AUSA cautioned the accountant not to disclose any information regarding conversations with Schwimmer; (5) the AUSA looked at the workpapers for the first time the day of the hearing; (6) the cross-examinations of witnesses at trial were conducted by a different AUSA who had not seen or discussed the workpapers; (7) the government was ready for trial before the workpapers were obtained; and (8) the alterations on the government’s spreadsheets were based on negotiations regarding Renda’s forfeiture and information provided by a business associate of Renda. The district court concluded that the information derived from the meetings with the accountant was not used to prepare for Schwimmer’s prosecution and there had been no derivative use of the information contained in the workpapers. Schwimmer appealed.

Rule of Law

Issue

Holding and Reasoning (Miner, J.)

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