
USCA1 Opinion

	




          April 25, 1996                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1190                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                CHARLES MARTIN EDGAR,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The opinion of this Court issued on April 19, 1996, is amended  as        follows:            On page 19, delete footnote 9 in its entirety.                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1190                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                CHARLES MARTIN EDGAR,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Selya, Stahl, and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Frances L.  Robinson, with  whom Davis,  Robinson &  White was  on            ____________________             _________________________        brief, for appellant.            James  C. Rehnquist, Assistant  United States  Attorney, with whom            ___________________        Donald K. Stern, United States Attorney, was on  brief, for the United        _______________        States.                                 ____________________                                    April 19, 1996                                 ____________________                      LYNCH,   Circuit  Judge.    Charles  Martin  Edgar,                      LYNCH,   Circuit  Judge.                               ______________            formerly   a  U.S.  Department   of  Commerce  employee,  was            convicted of three  counts of making false  statements on his            federal  workers' compensation  claims, and  of one  count of            mail fraud arising from a  false automobile accident claim to            an insurer.   He was  acquitted on  other charges,  including            bankruptcy fraud.1  Edgar  was sentenced to one year  and one            day plus two years of supervised release and was fined $5000.                      His  appeal argues that  joinder of  the bankruptcy            fraud, workers'  compensation fraud and  insurance fraud  was            improper, as was the  refusal to sever.  He  strongly asserts            reversible error in the testimony of his civil-claim attorney            before  the  grand  jury  which,  he  alleges,  violated  his            attorney-client privilege.  He also  argues that the issue of            materiality of the alleged  false statements should have been            submitted to  the jury  under the  rule established later  in            United States v. Gaudin, 115 S. Ct. 2310 (1995), that denying            _____________    ______            him  discovery   was  error,   and  that  the   evidence  was            insufficient to convict in any event.  We affirm.                      Two arguments merit close discussion.  Edgar argues            that it was improper  and harmful for the government  to have                                            ____________________            1.  The court granted Edgar's motions for acquittal on eleven            counts  of  mail fraud  based  on  the workers'  compensation            claims,  on one count of using a false social security number            in connection with  his bankruptcy, and  on eleven counts  of            bankruptcy  fraud.  The jury returned a verdict of not guilty            on  one count of making false statements to the Department of            Labor and could not reach a verdict on nine other counts.                                         -2-                                          2            joined such disparate charges as workers' compensation fraud,            auto  insurance  fraud and  bankruptcy  fraud  into a  single            indictment, saying the common allegation of fraud is too weak            a thread to sew them all together, and that the counts should            have been severed.  While the argument has some force, he was            acquitted on the bankruptcy charge and we find no harm to him            from its joinder with the other charges.                      Edgar also argues  that the government trampled  on            his attorney-client  privilege and  that this denied  him due            process.  The  government subpoenaed  to the  grand jury  the            lawyer who  had represented Edgar on  the automobile accident            claim.  The lawyer's initial declinations to answer questions            about  Edgar's communications  on grounds  of attorney-client            privilege gave  way in the  face of continued  questioning by            the  prosecutor.    Edgar  says  he  first  learned   of  his            attorney's  grand jury  testimony after  he was  indicted and            before  trial.  While troubled by what happened, we find that            there  was no prejudice to  Edgar at trial  and therefore his            remedy, if any, is not the vacating of his conviction.            Background            __________                      Edgar's  checkered  reporting  on   his  employment            status undergirds all counts  on which he was convicted.   In            1984 Edgar  filed claims  for compensation  to the  Office of            Workers' Compensation Programs ("OWCP") of the Department  of            Labor  based on back injuries suffered in a 1981 plane crash,                                         -3-                                          3            allegedly work-related.   The  claim eventually ripened  to a            claim  of  total  disability  from  1987  on.    The  federal            government paid him benefits, after objecting, for injury for            the period  from 1981 through 1986.   It had balked at paying            beyond 1986, but Edgar again won on appeal and he was paid to            1989.   In  May of  1991, in  an effort  to get  payments for            certain  periods between  1989 and  1991, he  submitted three            forms CA-8 to the OWCP.  These documents formed the basis for            the counts of conviction.  On other dates, he submitted other            forms  CA-8  as well  as forms  EN1032-0389 ("1032").   These            forms are  important to  the OWCP in  considering claims  for            continuing compensation.                      The forms CA-8 required that certain information be            provided  if   the  claimant  was  working.   The  employment            information is  used by OWCP  to determine a  claimant's wage            earning  capacity, and thus the level of his benefits.  Edgar            was in fact working as a self-employed accountant during this            period, but he did not provide the information required.  Nor            did  he mention that he operated and  managed a bar, which he            also  owned, from  1985 to  1990.2   Instead,  Edgar reported            that  he was  neither self-employed  nor employed  by others.            The  forms  include  a  warning that  any  "false  statement,                                            ____________________            2.  During the  time for  which he claimed  disability, Edgar            also attended law school.   He eventually became  licensed to            practice law  in Massachusetts,  but was  suspended following            his conviction in this case.  In the Matter of Edgar, No. 95-                                          ______________________            004BD (Bd. of Bar Overseers Jan. 20, 1995).                                         -4-                                          4            misrepresentation,  [or] concealment  of fact"  could subject            the  submitter to a felony prosecution.  Edgar says the forms            were not material,  as the department had  already turned him            down on  this claim.  But,  based in part on  those forms, he            did receive continuing compensation for the post-1989 period.            All told, he received more than $250,000 in benefits from the            government.                      In January 1987 Edgar was involved in an automobile            accident and asserted he injured his back and could not work.            Attorney  Robert Koditek  represented him  in his  claims for            injury and lost income against the other driver's insurer and            to  his  own  insurance  carrier, Commercial  Union.    Edgar            submitted a form to his own insurer, purportedly executed  by            a company bookkeeper but in fact forged by Edgar, stating, as            to lost income, that his accounting company paid him a yearly            salary of  $45,600.   Attorney  Koditek, representing  Edgar,            submitted a demand letter to Commercial Union  on October 12,            1988,  asserting that  Edgar had  been totally disabled  as a            result of the auto  accident and demanding the  policy limits            be  paid him.   In support of  Edgar's claim  for damages for            lost  income,  the letter  attached  "copies  of Mr.  Edgar's            federal income  tax returns  for  the years  1985, 1986,  and            1987."    Those signed  returns  showed  income for  1985  of            $62,392 and for 1986 of  $61,876.  But Edgar had  never filed            any tax return  in either  1985 or 1986;  so, the  government                                         -5-                                          5            charged, the representation was false.   On January 16, 1989,            Commercial  Union settled Edgar's  claim, paying him $75,000.            Attorney Koditek  testified at trial that  Edgar had supplied            him  with the copies of  the tax returns  given to Commercial            Union to support his claim.            Joinder and Denial of Motion for Severance            __________________________________________                      The  37 count  indictment  returned  against  Edgar            charged  three  fraudulent  schemes.   The  first  24  counts            charged  Edgar  with  mail  fraud, alleging  that  Edgar  had            wrongfully  obtained money  through the  mails (specifically,            the disability checks)  and had made false statements  to the            Department of Labor.   These counts were  premised on Edgar's            falsely representing  his employment and earning  capacity in            connection  with  his disability  claim  from  1989 to  1992.            Another count  involved Edgar's submission,  through Attorney            Koditek, of false  documents and a demand letter making false            statements to his automobile insurer in 1988.   The remaining            twelve  counts charged Edgar with filing documents containing            false  statements   in  1991   in  connection  with   Edgar's            bankruptcy.    The scheme  alleged  was  that  Edgar filed  a            bankruptcy  petition  in  California,   falsely  representing            California was his state of domicile, listing a false  social            security  number and  concealing assets  and income  from his            former wife and other creditors.                                         -6-                                          6                      Edgar argues that  the counts charging these  three            schemes  should  not  have  been  joined  because  they  were            insufficiently  similar.   He argues  that the  single common            characteristic,  misrepresentation of material facts, was not            enough  to satisfy the standards for joinder.  He also argues            that  evidence of  one scheme  would not  be admissible  in a            trial  on another scheme and  thus the jury  could infer from            the evidence  of  one fraud  that  Edgar was  predisposed  to            engage in another fraud.                      Edgar's argument that there was an improper joinder            of claims against  him in the indictment, which  the district            court refused  to undo,  raises two  concerns.   Edgar argues            first  that there  was  not sufficient  similarity among  the            counts  of   conviction  to  permit  joinder.     Second,  he            postulates a harmful spillover effect from all of the counts,            even those on  which he was  acquitted, which prejudiced  him            and led to his  conviction.  He also claims that,  apart from            the initial wrongful joinder,  the district court should have            allowed his motion for severance.                      The standard for joinder is set forth in Rule 8(a),            Fed. R. Crim. P., which provides:                      Two or more  offenses may  be charged  in                      the same indictment . . . if the offenses                      charged . . . are  of the same or similar                      character . . . .            "Similar" does not mean "identical," United States v. Werner,                                                 _____________    ______            620  F.2d 922,  928 (2d  Cir. 1980),  and similarity  must be                                         -7-                                          7            analyzed  in terms of how the  government saw its case at the            time  of indictment.  United States v. Natanel, 938 F.2d 302,                                  _____________    _______            306 (1st Cir. 1991), cert. denied,  502 U.S. 1079 (1992).  As                                 ____________            Judge Friendly commented in Werner, under the mandate of  the                                        ______            Speedy Trial Act,  joinder serves the purposes  of economy of            resources.  620  F.2d at 928.  Denial of  a motion for relief            from misjoinder  is  reviewed  de novo.    United  States  v.                                                       ______________            Chambers,  964  F.2d  1250  (1st  Cir.  1992).    Further,  a            ________            misjoinder is  not reversible  if it  was  harmless.   United                                                                   ______            States v. Lane, 474 U.S. 438, 444-50 (1986); United States v.            ______    ____                               _____________            Randazzo, __  F.3d __, __,  No. 95-1489,  slip op. at  6 (1st            ________            Cir. Apr. 8, 1996).                      Edgar also argues that  even if joinder was proper,            his motion  to sever the  different schemes should  have been            granted.   Under Rule 14, Fed. R.  Crim. P., "[i]f it appears            that a defendant . . . is prejudiced by a joinder of offenses            .  . ., the court may order . . . separate trials of counts."            The denial of a motion for severance is reviewed for abuse of            discretion, and must  be affirmed unless  there is a  "strong            showing of  evident prejudice."   United States  v. O'Bryant,                                              _____________     ________            998 F.2d 21, 25 (1st Cir. 1993).                      In  determining whether counts are properly joined,            this court considers such factors as "whether the charges are            laid  under the  same statute,  whether they  involve similar            victims, locations, or modes of operation, and the time frame                                         -8-                                          8            in which the  charged conduct  occurred."   United States  v.                                                        _____________            Taylor,  54 F.3d 967, 973 (1st Cir. 1995) (internal citations            ______            omitted).3  The government argues  that the test is satisfied            because  the workers'  compensation fraud and  the automobile            accident fraud  involved the  same modus operandi  of claimed                                               ______________            total disability following an asserted injury to the back, an            asserted  loss of  income, the  submission of  false official            forms, and the misrepresentation of other employment in order            to   rake  in  large  sums.    As  to  timing,  the  workers'            compensation  fraud  overlapped  the  auto  insurance  fraud.            Witnesses and testimony  would also overlap.  Evidence  as to            the  auto  accident  fraud  would  be  used  on  the  claimed            disability  from a back injury  from the plane  crash, and to            establish that Edgar misrepresented  his earnings and earning            capacity.    We believe  there  were  sufficient similarities            between the workers' compensation and insurance fraud schemes            to permit joinder of those counts.                                            ____________________            3.  An earlier  case in this circuit applied an arguably more            stringent standard  for the  government to  join two  or more            offenses under Rule 8(a).   See United States v.  Yefsky, 994                                        ___ _____________     ______            F.2d  885, 895 (1st Cir. 1993)  (finding proper joinder where            there  was "'substantial identity  of facts or participants'"            underlying  two charged  schemes,  quoting  United States  v.                                                        _____________            Levine, 546 F.2d 658, 662 (5th Cir. 1977)).  Given that Edgar            ______            used  the  same  basic  mechanism,   misrepresenting  earning            capacity in  seeking compensation lost due to  a back injury,            in both  the workers' compensation and  auto insurance fraud,            we  believe  that  joinder  of the  counts  underlying  these            schemes would have been proper even under the test applied in            Yefsky.  Given  our disposition  of this issue,  we need  not            ______            decide  whether Yefsky set a  more rigid test  for joinder of                            ______            offenses than the language of Rule 8(a) warrants.                                         -9-                                          9                      However, like the district court,  we are disturbed            by  the  joinder of  the bankruptcy  fraud.4   We  discern no            "common scheme  or plan."  See  Randazzo, __ F.3d at  __, No.                                       ___  ________            95-1489,  slip op.  at  5.    The bankruptcy  fraud  charges,            relating  to events  in  1991, were  brought under  different            statutes  and the  supposed victim  was Edgar's  ex-wife (and            possibly  other unspecified  creditors).    The location  was            different.  The bankruptcy filings were all with the court in            California, while  the other  frauds took place  primarily in            Massachusetts.  The  modes of operation  were different.   In            the  workers' compensation  and automobile  insurance frauds,            Edgar asserted an injury  to his back, which resulted  in the            loss  of  earnings.   The  alleged bankruptcy  fraud  did not            involve  an attempt to obtain payment for an injury.  Rather,            it was allegedly an  attempt to avoid obligations to  his ex-            wife, with whom  he had an  acrimonious relationship, and  to            force her to press her claim in an inconvenient forum.                      Edgar claims he was prejudiced because the evidence            for  each scheme had a harmful spillover effect, and the jury            convicted him  not because  of specific evidence  showing his                                            ____________________            4.  The district judge, in  granting the motion for acquittal            on the bankruptcy charges  after the government had presented            its case,  noted the potential  problems with the  joinder of            the bankruptcy  fraud.  He  said, "[T]his type  of indictment            looks  like you are  piling it on .  . . ."   He also thought            that "th[e] bankruptcy case was transferred here to  boost up            the  other  false statement  cases"  and  that  there was  an            "unusual" number of schemes alleged.                                         -10-                                          10            guilt,  but because of its perception that he was a dishonest            man.5    Specifically,  Edgar  posits  that  the  jury  heard            evidence that (1) he collected  $75,000 in settlement for the            auto  insurance claim;  (2) he  had an  extremely acrimonious            divorce; (3) he  filed for bankruptcy in  California and made            false  statements that  he  resided there;  (4) he  has owned            various properties  and has  established trusts  at different            times; (5) he filed false information in the bankruptcy court            regarding his assets and social security number.                      Even assuming the  bankruptcy count was  improperly            joined, any error was harmless.  It did not result in "actual            prejudice"  because  it  did  not  have  a  "substantial  and            injurious  effect  or  influence in  determining  the  jury's            verdict."    Lane,  474  U.S.  at  449  (internal  quotations                         ____            omitted);  see also O'Neal v.  McAninch, 115 S.  Ct. 992, 995                       ________ ______     ________            (1995).  Edgar was  acquitted by the court of  the bankruptcy            fraud and of  several counts  of mail fraud  in the  workers'            compensation scheme before the  matter went to the jury.   Of            the remaining thirteen workers' compensation counts, the jury            proved itself  capable of making distinctions:   it acquitted            Edgar of one, could not reach a verdict on nine and convicted                                            ____________________            5.  Edgar also  claims that, had the schemes been severed, he            may have testified for one, but  not another.  Edgar does not            expand  upon this  claim of  prejudice, and  an "unexplicated            assertion" that he would  have testified at one trial  is not            enough to  establish prejudicial  joinder.  United  States v.                                                        ______________            Werner, 620 F.2d 922, 930 (2d Cir. 1980).            ______                                         -11-                                          11            on three.   The jury  thus showed itself  clearly capable  of            discriminating  among the evidence  applicable to each count,            even within  the workers' compensation  fraud, thus  reducing            the  risk of  any prejudice from  evidence on  the bankruptcy            count.  See  United States  v. Stackpole, 811  F.2d 689,  694                    ___  _____________     _________            (1st Cir.  1987) (jury's acquittal  on one of  several counts            suggests jury not  confused by joinder).  Moreover, the court            gave appropriate limiting  instructions.6  See Chambers,  964                                                       ___ ________            F.2d at 1251; United  States v. Attanasio, 870 F.2d  809, 815                          ______________    _________            (2d Cir. 1989) (misjoinder can be rendered harmless by proper            limiting instruction);  cf. Lane, 474 U.S.  at 450 (analyzing                                    ___ ____            joinder of defendants  under Fed.  R. Crim. P.  8(b)7).   The            exhibits relating solely to the bankruptcy fraud were struck.                                            ____________________            6.    The court instructed  the jurors that  they should "put            out  of [their]  minds any  reference or  evidence concerning            Counts 1 through 11 charging mail fraud and Counts 26 through            36  charging bankruptcy fraud and  the use of  a false Social            Security number,  because [the court has] ruled,  as a matter            of  law, that the  government has failed to  prove all of the            necessary  elements of  each of  those charges."   The  court            further instructed, "You must decide the remaining charges as            if those charges that I have removed from your consideration,            mail fraud and bankruptcy fraud, were never made and as if no            evidence was submitted in support of those charges.  You must            limit your  consideration. . .  .  And you  must determine if            the  government has sustained  its burden  of proof  beyond a            reasonable doubt,  excluding all  references  to or  evidence            concerning Counts 1 through 11 and 26 through 37."             7.  Fed.  R. Crim. P.  8(b) allows for the  joinder of two or            more defendants if "they are alleged to have  participated in            the same  act or transaction or in the same series of acts or            transactions constituting an offense or offenses."                                         -12-                                          12                      Some  of  the evidence  as  to  the bankruptcy  and            insurance   schemes  was  admissible   as  to   the  workers'            compensation  scheme, thus  resulting in  no prejudice.   See                                                                      ___            Stackpole,  811  F.2d  at 694;  cf.  Lane,  474  U.S. at  450            _________                       ___  ____            (analyzing  joinder  of defendants  under  Rule  8(b)).   Any            statements that Edgar filed with the bankruptcy court stating            his  income  for  the   years  encompassed  by  the  workers'            compensation fraud  would have been admissible  on the latter            issue.   The  statements  made to  the  insurance company  in            connection with  the insurance  fraud were admissible  on the            workers'  compensation issue, particularly as they related to            Edgar's back injury and his loss of earnings.  Finally, there            was  substantial  independent  evidence   on  the  counts  of            conviction.  The fraud against  the insurance company and the            three  counts  of  submitting  falsified   documents  to  the            Department of  Labor were supported by  evidence unrelated to            the bankruptcy.                      Thus, Edgar  cannot  meet  his  burden  of  showing            prejudice on the denial of the motion for severance as to any            of the counts.  Garden-variety arguments of spillover -- such            as  if the jury found defendant guilty of A, that alone would            lead to  the conclusion that  he was  guilty of B  -- without            more, are insufficient to require severance.  Taylor, 54 F.3d                                                          ______            at 973.  Appellants must demonstrate actual prejudice.   That            is a particularly difficult burden for Edgar to meet, because                                         -13-                                          13            the spillover from his acquittal on  the bankruptcy count and            certain  of the  workers' compensation  counts could  just as            easily be posited to have worked  to his benefit.  The law of            severance  and  joinder is  a  stricter  master than  Edgar's            claimed error.  See Natanel, 938 F.2d at 307-08.                            ___ _______            The Grand Jury Testimony            ________________________                      On June  1, 1993, Attorney Koditek  testified under            subpoena  before the grand jury.  Edgar says that neither the            government nor  Attorney  Koditek notified  him that  Koditek            would testify under subpoena.                      Edgar  complains that he did not learn of the grand            jury testimony of  his civil-claim lawyer until  after he was            indicted.  Even then, the prosecution denied Edgar's requests            for a copy of  Attorney Koditek's testimony.  Ten  days prior            to   trial,  the   new  prosecutor   assigned  to   the  case            appropriately provided the transcript to the defendant.  This            is what the transcript8 showed:                      AUSA:     Do  you recall  at some point  making, as                                part  of your  claim to  Commercial Union                                Insurance   Company  --   submitting  tax                                returns  to  commercial Union  evidencing                                Mr. Edgar's income for the years prior to                                the accident?                      KODITEK:  I may have.                      AUSA:     Well, what's your recollection, sir?                      KODITEK:  I don't recall.                      AUSA:     Mr. Koditek,  if you'd look at Exhibit 22                                [the October 12, 1988, demand letter] and                                            ____________________            8.  The  district court  allowed the  government's motion  to            disclose certain  portions of Attorney  Koditek's grand  jury            testimony for purposes of responding to this appeal.                                         -14-                                          14                                if  you  could  read  that  carefully  to                                yourself.                      KODITEK:  (Witness looking at document)                      AUSA:     Have   you   looked   at  that   document                                carefully, sir?                      KODITEK:  Yes, I have.                      AUSA:     Does  that  refresh your  recollection at                                all  as  to  whether  you  submitted  tax                                returns  to  Commercial  Union  Insurance                                Company  as evidence of Mr. Edgar's wage-                                earning ability?                      KODITEK:  It appears that I did.                      AUSA:     Do  you recall  any discussions  with Mr.                                Edgar concerning those tax returns?                      KODITEK:  Any  discussions would be  subject to the                                attorney/client privilege.                      AUSA:     Well, what I'm asking you is not what, in                                fact,  was said,  but I'm  asking whether                                the subject of the tax returns ever  came                                up.                      KODITEK:  I would presume the subject came up.                      AUSA:     Did Mr. Edgar  say to you at any time, in                                connection with your submission  of those                                tax returns to Commercial Union Insurance                                Company, that those tax returns were not,                                in fact, identical to the ones filed with                                the Internal Revenue Service?                      KODITEK:  Any  conversation would be subject to the                                attorney/client privilege.                      AUSA:     Well, I  think  that in  this  particular                                instance, sir, they would not.   What I'm                                asking you is whether Mr. Edgar indicated                                to you, in substance  or in fact, that he                                was  submitting or  having you  submit to                                the  Commercial  Union Insurance  Company                                tax  returns  which  were  not  the same.                                That is  to say that they were fraudulent                                tax  returns that  were not  submitted to                                the Internal Revenue Service.                      KODITEK:  No, he never said that to me.                      AUSA:     Was it your  understanding, sir, that the                                tax  returns that  he submitted  were, in                                fact, genuine tax  returns as filed  with                                the Internal Revenue Service?                      KODITEK:  That would be my understanding.                      What  is   clear  is  that   Attorney  Koditek  was            questioned about the substance  of his conversations with his                                         -15-                                          15            client,  that  he asserted  attorney-client  privilege twice,            that the prosecutor responded that the matter was not covered            by  privilege  and that  Koditek  then  answered.   This  was            apparently done without the client, Edgar, being aware of the            testimony.   Nor was there any judicial review of whether the            testimony was indeed privileged.                      At trial  Edgar did object on  grounds of attorney-            client privilege to any testimony from Attorney Koditek.  The            court  rejected  the  privilege  claim.     Attorney  Koditek            testified that  he represented  Edgar in connection  with the            Commercial  Union  claim,  that   he  wrote  two  letters  to            Commercial Union in  connection with the claim,  and that the            tax  returns were enclosed with one of the letters.  Attorney            Koditek authenticated the letters,  but declined to answer on            grounds  of  privilege  the  question  of  who  gave him  the            material (including the  tax returns) to be enclosed with the            demand  letter to the insurer.  The district court ruled that            because  the  tax returns  were  disclosed  to the  insurance            company,  the fact that Edgar gave the returns to Koditek was            not privileged.   Attorney Koditek answered  that he received            the  tax returns from Mr.  Edgar.  Edgar  chose not to cross-            examine  on this point and never asserted a defense of advice            of  counsel   or  that   the  attorney's  actions   were  not            authorized.   At trial, Attorney Koditek  did not testify, as            he did to  the grand jury, about whether Edgar  had ever told                                         -16-                                          16            him that the  tax returns submitted  to Commercial Union  had            not  been submitted  to the IRS.   The government  did put on            independent evidence that these returns were never filed with            the IRS.                      Edgar   filed   several   motions   regarding   his            attorney's  testimony.   He argued  a fruit-of-the-poisonous-            tree  theory that  Attorney  Koditek's  testimony before  the            grand  jury  was  illegal  and so  the  indictment  should be            dismissed  or  evidence  should  be  suppressed.    There  is            precedent  for  an  argument  that  a   court  may  quash  an            indictment  based  upon evidence  directly  obtained from  or            derived from  breach of  the attorney-client privilege.   See                                                                      ___            United States v. Omni International Corp., 634 F. Supp. 1414,            _____________    ________________________            1421  (D.  Md. 1986)  (but  doubting  that dismissal  was  an            appropriate remedy under United  States v. Morrison, 449 U.S.                                     ______________    ________            361 (1981));  People v. Fentress, 425  N.Y.S.2d 485 (Dutchess                          ______    ________            Co. Ct. 1980); Baltes  v. Doe I, 57 U.S.L.W. 2268  (Fla. Cir.                           ______     _____            Ct.  1988).    Some federal  courts  have  held  that if  the            prosecutor   induces  the  breach,  suppression  of  evidence            derived  from the  breach is  the appropriate  remedy, unless            prejudice would remain,  in which case the  indictment may be            dismissed.   See, e.g.,  United  States v.  Rogers, 751  F.2d                         _________   ______________     ______            1074, 1079 (9th  Cir. 1985) (no dismissal  when any prejudice            to  defendant  could be  neutralized  by  excluding at  trial            confidential   communications    wrongfully   obtained   from                                         -17-                                          17            defendant's former  attorney).   But "[w]hen a  federal court            uses  its  supervisory  power  to dismiss  an  indictment  it            directly encroaches  upon the  fundamental role of  the grand            jury.   That power is appropriately  reserved, therefore, for            extremely  limited  circumstances."    Whitehouse  v.  United                                                   __________      ______            States  Dist.  Ct.,  53  F.3d  1349,  1359  (1st  Cir.  1995)            __________________            (internal citation  omitted).  Indeed, the  Supreme Court has            said that prejudice is required to dismiss  an indictment for            prosecutorial  misconduct.   Bank  of Nova  Scotia v.  United                                         _____________________     ______            States,  487  U.S.  250,  263  (1988).    Edgar  also  sought            ______            discovery as  to whether the proper  procedures were followed            to  subpoena  Attorney Koditek.    And,  he argued  that  the            government  had failed  to  follow the  procedures in  United                                                                   ______            States v. Zolin, 491 U.S. 554 (1989).  Those motions were all            ______    _____            denied.            Attorney-Client Privilege and Due Process Arguments            ___________________________________________________                      Edgar  argues on  appeal  that the  questioning  of            Attorney Koditek before the grand jury violated his rights to            due  process and  to  the assistance  of  counsel.   We  will            assume, arguendo, that  Edgar did not waive his  rights under                    ________            the  attorney-client privilege  and  that  those rights  were            violated  by  Attorney Koditek's  testimony before  the grand            jury.  But  even with  those assumptions it  does not  follow            that the appropriate remedy is to vacate his conviction.                                         -18-                                          18                      Contrary to Edgar's  arguments, no Sixth  Amendment            right to  counsel  is even  implicated  here, as  the  lawyer            called to  the grand jury  was not criminal  defense counsel.            See,  e.g., Rogers, 751 F.2d at 1077-78.  Nonetheless, we are            ___   ____  ______            troubled  by what  happened  and seek  guidance  in case  law            discussing the district court's adoption of Rule 3:08  of the            Rules of the  Supreme Judicial Court of Massachusetts, and in            the teachings of United States v. Zolin, 491 U.S. 554 (1989).                             _____________    _____                      A  long  simmering  dispute in  Massachusetts  over            prosecutors serving grand jury subpoenas on counsel  resulted            in  the affirmance by this court, equally divided en banc, of            a district  court opinion that  approved the Local  Rule that            adopted the disciplinary rules of the Supreme Judicial Court,            particularly S.J.C. Rule 3:08, Prosecutorial Function 15 ("PF            15").   See United States v. Klubock,  832 F.2d 664 (1st Cir.                    ___ _____________    _______            1987) (en banc  by an equally  divided court) ("Klubock  II")                                                            ___________            (plaintiff prosecutors sought a declaratory  judgment against            the  Board  of Bar  Overseers that  the  rule was  invalid as            applied to federal prosecutors),  aff'g 639 F. Supp.  117 (D.                                              _____            Mass. 1986).  The  net effect is that federal  prosecutors in            Massachusetts must comply with PF 15, which provides:                      It  is  unprofessional   conduct  for   a                      prosecutor to  subpoena an attorney  to a                      grand   jury   without   prior   judicial                      approval   in  circumstances   where  the                      prosecutor    seeks    to   compel    the                      attorney/witness   to  provide   evidence                      concerning a person who is represented by                      the attorney/witness.                                         -19-                                          19            S.J.C. Rule 3:08, PF 15.                      The  prosecutor here  argues  that PF  15 does  not            literally  apply as  Edgar  was represented  in  the past  by                                        ___            Attorney  Koditek, but was not represented by him at the time            of  the  subpoena,  as  the   language  of  PF  15  requires.            Nonetheless,  the  prosecution  represented to  the  district            court that it had complied with PF 15 and had obtained  prior            judicial approval  to  serve the  subpoena.   But,  as  Edgar            points out, the record is devoid of proof on this point.                      The  subpoena  here  did  not go  to  the  target's            criminal  defense counsel and so does not raise the issues of            potential abuse specific to  that situation.  See Whitehouse,                                                          ___ __________            53 F.3d  at 1354.   But  Edgar and Attorney  Koditek were  at            least  potentially  placed  in  the   hypothetical  situation            described in the panel opinion vacated by Klubock II9:                                                      __________                      The  serving of  a  subpoena  under  such                      circumstances  will  immediately drive  a                      chilling      wedge      between      the                      attorney/witness  and  his client.   This                      wedge  is  the  natural   consequence  of                      several  underlying  factors  created  by                      this anomalous situation.   Most  obvious                      is the fact that the client  is uncertain                      at  best, and  suspicious at  worst, that                      his  legitimate trust in his attorney may                                            ____________________            9.  The  court in  Klubock  II produced  for publication  the                               ___________            vacated panel opinion, United States v. Klubock, 832 F.2d 649                                   _____________    _______            (1st  Cir. 1987) ("Klubock I"), because the members of the en                               _________            banc  court referred to the  panel opinion.   Klubock II, 832                                                          __________            F.2d  at  665.   The  opinion  in  Klubock  II affirming  the                                               ___________            district  court did refer to the portions of Klubock I quoted                                                         _________            here, id. at 667,  although neither Klubock I nor  Klubock II                  ___                           _________      __________            is controlling precedent, Whitehouse, 53 F.3d at 1354.                                      __________                                         -20-                                          20                      be subject to betrayal.   And because the                      subpoenaed  attorney/witness may  himself                      feel  intimidated, this may  in fact take                      place   if  there  is  not  even  minimal                      ethical     control    regulating     the                      subpoenaing  of  an  attorney/witness  to                      seek evidence against his client.                           More   subtle,   but  perhaps   more                      important in terms of the ethical setting                      within  which PF  15  is  framed, is  the                      immediate  conflict of  interests created                      between  the   attorney/witness  and  his                      client  by the  serving of a  subpoena in                      the context of what is contemplated by PF                      15.  As  a witness, the  attorney/witness                      has   separate    legal   and   practical                      interests apart from those of his client.                      These interests may  or may not  coincide                      with  those  of the  attorney/witness and                      his client.  The mere possibility of such                      a  conflict is  sufficient  to  create  a                      problem.    A   minimal  overview  by  an                      impartial observer, as is provided  by PF                      15, can go far in preventing the creation                      of  these  ethical conflicts  between the                      attorney/witness and his client.            United  States v.  Klubock,  832 F.2d  649, 652-53  (1st Cir.            ______________     _______            1987)  (footnote omitted)  ("Klubock I").   We  believe these                                         _________            considerations apply to the relationships with former counsel            as well as with present counsel.                      There  may be  an implicit  threat to  the attorney            called to testify about a  client to the grand jury that  the            attorney   will  become   a  target   himself10  should   the            prosecutor  think  he knowingly  participated  in  the fraud.                                            ____________________            10.  Indeed, at trial Attorney Koditek indicated an intent to            assert the right under the Fifth Amendment not to incriminate            himself  if called  to  testify.   By  the time  of  Attorney            Koditek's trial  testimony, he  had been granted  immunity by            the prosecution.                                         -21-                                          21            This is  particularly so  where the prosecution  asserts that            the  privilege must  give way  to the  crime-fraud exception.            The lawyer may be  tempted to reveal privileged conversations            in order  to avoid  becoming  a target  himself.11   Ideally,            counsel receiving a subpoena will give notice to a client and            consistently  assert the  privilege  on behalf  of a  client.            Ideally, a prosecutor faced with an assertion of privilege by            an  attorney witness  will seek  a judicial  determination of            whether the  privilege is valid.   But we  do not live  in an            ideal  world.  See Jerome  Frank, If Men  Were Angels (1942).                           ___                ___________________            We  are loath  to say  the prosecutor  here crossed  over the            line.   But we are  equally loath to  say, as  the government            urges, that there is no line and there is never a remedy.12                                            ____________________            11.  While an attorney  may, under the  self-defense doctrine            set forth  in S.J.C. Rule  3:07, Code of  Prof. Resp.,  DR 4-            101(C)(4),  reveal information  without prior  notice  to the            client,  the  doctrine does  not  apply  unless there  is  an            "accusation"  of  wrongful  conduct.   We  do  not  think the            prosecutor  here made  an  "accusation" against  counsel that            would have triggered this provision.            12.  Indeed,  other  courts  have  concluded that  there  are            limits  to  how  far   government  investigators  may  go  in            attempting   to  induce  a   breach  of  the  attorney-client            privilege.    In  Omni,  the  district  court  chastised  the                              ____            government for interviewing an  attorney's secretary.  634 F.            Supp. at 1431, 1439.  See also United States v. Valencia, 541                                  ________ _____________    ________            F.2d 618  (6th Cir.  1976)  (improper for  government to  pay            attorney's  secretary for  information  about the  attorney's            clients).    But,  attorneys are  themselves  responsible for            protecting  the client  by  asserting the  privilege when  it            applies.   See, e.g., United States v. Rasheed, 663 F.2d 843,                       _________  _____________    _______            854  (9th Cir.  1981), cert.  denied,  454 U.S.  1157 (1982);                                   _____________            Omni, 634 F. Supp. at 1422-23, 1431.            ____                                         -22-                                          22                      The  first  line  of  defense  to  protect  Edgar's            privilege lay  in the hands of  his lawyer.  A  lawyer has an            obligation  not to  reveal client  confidences.   S.J.C. Rule            3:07, Code  of Prof. Resp., DR  4-101.  A lawyer  also has an            obligation to assert privilege  on behalf of a client.   Id.;                                                                     ___            see also In re Impounded Case (Law Firm), 879 F.2d 1211, 1213            ________ _______________________________            (3d  Cir. 1989).  Generally, an attorney has an obligation to            assert  the  privilege on  behalf of  the  client and  not to            disclose  confidential information until  there is a judicial            determination that  there is  no privilege.   ABA/BNA Lawyers                                                          _______________            Manual on  Professional Conduct  55:1307-08 (1989).   Even if            _______________________________            there  is an assertion that there is no privilege because the            crime-fraud exception  applies, the  attorney is  required to            give notice to  the client.  S.J.C. Rule 3:07,  Code of Prof.            Resp.,  DR  7-102(B)(1).    If the  attorney  violates  these            duties,  he is at risk at least  of a malpractice suit and of            professional discipline.                      Concomitantly, a prosecutor has certain obligations            beyond  zealous  representation  of the  government  when the            prosecutor interrogates witnesses before the grand jury.  For            example,  if a  witness invokes  the privilege  against self-            incrimination, the prosecutor should cease  questioning as to            the particular subject to  which the privilege was addressed.            United  States v. Mandujano, 425  U.S. 564, 581  (1976).  But            ______________    _________                               ___            see  United States v. Benjamin,  852 F.2d 413,  420 (9th Cir.            ___  _____________    ________                                         -23-                                          23            1988)  (testing  validity   of  reliance  on  privilege   not            prosecutorial misconduct unless prosecutor  harangued witness            or improperly  commented on assertion  of privilege), vacated                                                                  _______            on other grounds,  490 U.S.  1043 (1989).   Thus, the  second            ________________            line  of defense is that  the prosecutor will  not harangue a            witness, but will promptly bring the issue to a court.                        The  third  line  of  defense is  that  there  will            ultimately be a  disinterested judicial determination of  the            issue.13  In  United   States   v.  Zolin,   491   U.S.   554                          _______________       _____            (1989),  the  Supreme  Court  set  forth  the  procedure  for            obtaining judicial review when the  attorney-client privilege            is  consistently asserted  and  the  government  opposes  the            privilege.   Id. at 572.  The government may obtain in camera                         ___            review of  the information alleged  to be privileged,  at the            discretion  of the court, upon a "'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. (quoting Caldwell v. District Court,                                 ___          ________    ______________            664 P.2d 26, 33  (Colo. 1982)).  Apparently, no  such showing            was made  in this  case because  Attorney Koditek  so quickly                                            ____________________            13.  The judicial protection of rights inherent in PF 15 does            not  resolve this  situation.   That  a  judge has  ex  parte                                                                _________            authorized issuance of  a subpoena to  counsel does not  mean            that  a determination  has  been made  that any  assertion of            privilege before  the  grand jury  has  been decided  in  the            prosecution's favor.                                         -24-                                          24            succumbed to  the prosecutor's  questioning.  Under  Zolin, a                                                                 _____            prosecutor  may  not  obtain  disclosure,  or  even  judicial            review, of the privileged information upon a simple assertion            that  the crime-fraud  exception applies, as  happened before            the grand jury here.  See id. at 571.                                  ___ ___                      Nevertheless, Edgar  ultimately had the  benefit of            that third line of defense.  On the facts of this case we see            no  prejudice,   and  therefore   no  basis  to   vacate  the            conviction.   See Fed.  R. Crim. P. 52;  Bank of Nova Scotia,                          ___                        ___________________            487 U.S. at 254-55 (requiring prejudice).  Edgar does not now            assert  that  the  trial  testimony by  Koditek  invaded  his            privilege.   The district court instructed  the prosecutor to            limit his questions  to what was  disclosed to the  insurance            company  and to  avoid the  communications between  Edgar and            Attorney Koditek.   On the  significant point  as to  whether            Edgar had or had not confided to Koditek that the tax returns            to  be provided to Commercial  Union had not  been filed with            the IRS, Attorney Koditek did not so testify at trial, as  he            had to the  grand jury.   Indeed, the  evidence that the  tax            returns  had  not  been filed  was  introduced  independently            through a Certification of Lack  of Record from the custodian            of federal tax returns.  On the point that Edgar provided the            tax  returns to  Attorney Koditek,  Edgar does  not claim  on            appeal that the trial court erred in holding that information            was not privileged.                                         -25-                                          25                      Edgar  argues there  was prejudice  in that  he was            deprived of the choice as  to whether to assert an  advice of            counsel  defense.  Edgar chose  not to assert  that the false            tax returns were prepared and submitted on advice of counsel.            He was free to have made  such an argument, if supported,  at            trial, whatever Koditek's grand jury testimony.  Had  he made            such an argument, of  course, he would have waived  any claim            that   the   attorney-client   privilege    protected   those            discussions.   See  Glenmede Trust  Co. v. Thompson,  56 F.3d                           ___  ___________________    ________            476,  486-87 (3d  Cir.  1995); Saint-Gobain/Norton  Indus. v.                                           ___________________________            General  Elec.  Co., 884  F. Supp.  31,  33 (D.  Mass. 1995).            ___________________            Moreover, there  was no  argument or evidence  that Koditek's            actions  in  connection  with  the  demand  letter  were  not            authorized.   The choice as to whether to make such arguments            was not foreclosed to him and was a strategy choice  by trial            counsel.                      Nor is this a fruit-of-the-poisonous-tree situation            that would  require suppression  of evidence or  quashing the            indictment.  Cf. Rogers,  751 F.2d at 1078-79.  Edgar has not                         ___ ______            convinced us that he would not have been indicted but for his            attorney's testimony.  Edgar argues  that the only reason the            government  knew  that  Attorney  Koditek  obtained  the  tax            returns  from  Edgar  was  because of  Koditek's  grand  jury            testimony.     However,  that  inference   was  self-evident.            Further, the  Koditek letter  and attached returns  came from                                         -26-                                          26            Commercial  Union's  claim  file  and there  was  independent            evidence identifying the signature on the unfiled tax returns            as  Edgar's.    There  being   no  prejudice,  there  was  no            reversible error.  Fed. R. Crim. P. 52.            Sufficiency of Evidence of Materiality            ______________________________________                      In  his reply  brief14  in this  court Edgar  makes                              _____            the  argument  for  the first  time  that  the  jury was  not            permitted to decide the issue of materiality of his allegedly            false statements, in violation of the principles announced by            the Supreme Court in United States v. Gaudin, 115 S. Ct. 2310                                 _____________    ______            (1995).   Gaudin was decided  after his trial  but before his                      ______            appeal.  The issue,  not having been raised in  his principal            brief  to  this  court, is  waived.    See  United States  v.                                                   ___  _____________            Gabriele, 63 F.3d 61,  67 n.9 (1st Cir. 1995);  United States            ________                                        _____________            v. DeMasi,   40 F.3d 1306,  1318 n.12 (1st Cir.  1994), cert.               ______                                               _____            denied,  115 S. Ct. 947 (1995); United States v. Brennan, 994            ______                          _____________    _______            F.2d 918, 922  n.7 (1st  Cir. 1993).   Had  Edgar raised  the            Gaudin issue initially on appeal, this court would review the            ______            failure to submit  materiality to  the jury  under the  plain            error  test because Edgar also  failed to raise  the issue in            the district  court.  See  Randazzo, __ F.3d  at __, No.  95-                                  ___  ________                                            ____________________            14.  Edgar  filed  a  motion with  this  court  for  leave to            present a claim  under United  States v. Gaudin,  115 S.  Ct.                                   ______________    ______            2310 (1995), in  his reply  brief.  The  motion was  granted,            "without  prejudice, however,  to the  government's right  to            argue, or the court's right to conclude, that the issue ha[d]            been waived."                                         -27-                                          27            1489,  slip op. at 17; see  also United States v. Collins, 60                                   _________ _____________    _______            F.3d  4, 8  (1st Cir.  1995).   Edgar  argues that  we should            nonetheless review the district court's failure to submit the            element  of materiality to the jury for "plain error" just as            though  the  issue were  raised in  his  initial brief.   See                                                                      ___            Randazzo,  __  F.3d  at __,  No.  95-1489,  slip  op. at  17.            ________            However,  we  think a  higher standard  must  be met,  and as            review for "plain error" lies "within the sound discretion of            the Court of Appeals,"  we decline to apply that  standard in            the  circumstances  of this  case.15   See  United  States v.                                                   ___  ______________            Olano, 113 S. Ct. 1770, 1779  (1993); Fed. R. Crim. P. 52(b);            _____            Taylor,  54  F.3d  at  972  ("appellate  courts  will  notice            ______            unpreserved    errors    only   in    the    most   egregious            circumstances").                      Edgar  did  properly preserve  an objection  to the            sufficiency of the  evidence on materiality, but that we also            reject.  Edgar argues that  the evidence was insufficient  to            establish that his omissions from the forms CA-8 for which he            was convicted were material.   A statement is material  if it            has  a  natural  tendency  to  influence  or  is  capable  of            affecting  or  influencing  a government  function.    United                                                                   ______            States v. Arcadipane, 41 F.3d 1,  7-8 (1st Cir. 1994).  Edgar            ______    __________                                            ____________________            15.  Even if we were to apply  the plain error test, we would            find  Edgar had  not met his  burden.   In light  of the very            strong  evidence  of  guilt, we  do  not  think  there was  a            "miscarriage of justice" that would warrant correction of any            error.  United States v. Olano, 113 S. Ct. 1770, 1779 (1993).                    _____________    _____                                         -28-                                          28            argues that because  the decision not  to grant him  benefits            had  already been made and because the forms were filed late,            his  failure  to  set   forth  his  self-employment  was  not            material.   However,  the standard is  not whether  there was            actual influence,  but whether  it would  have a  tendency to            influence.  The district director for the OWCP testified that            on a claim for disability, whether one may work or has worked            has  considerable  influence   on  the  amount  of   benefits            warranted.  Thus, the  district court did not err  in finding            Edgar's false statements to be material.   See id. (affirming                                                       ___ ___            a finding  of materiality for false  statements of employment            on a Form 1032).            Fair Credit Reporting Act            _________________________                      Edgar's last  claim of error  is that there  was an            abuse of discretion in the denial of his motion for discovery            of the government's compliance with the Fair Credit Reporting            Act, 15 U.S.C.     1681-1681t.  Edgar claimed to  have needed            this information  in order to  determine whether a  motion to            dismiss the indictment or  a motion to suppress  evidence was            warranted.   Even assuming  that the government  violated the            FCRA   by  improperly   acquiring  data   concerning  Edgar's            finances, Edgar has  not shown  how any use  of the  acquired            information could  have prejudiced him  in the grand  jury to            support dismissal of the indictment.  See, e.g., Bank of Nova                                                  ___  ____  ____________            Scotia  v. United  States, 487  U.S. 250  (1988).   Nor would            ______     ______________                                         -29-                                          29            suppression  be  required  for   a  violation  of  the  FCRA.            Suppression of the  evidence is not a mentioned  remedy under            the FCRA, nor is discovery of whether the government complied            with  the Act.  See 15 U.S.C.    1681n; cf. United States  v.                            ___                     ___ _____________            Kington,  801 F.2d  733,  737 (5th  Cir.  1986) (refusing  to            _______            suppress  records  obtained  in  violation of  the  Right  to            Financial Privacy Act  when Congress did not provide for that            remedy in statute), cert. denied,  481 U.S. 1014 (1987);  cf.                                ____________                          ___            also  United  States  v. Payner,  447  U.S.  727,  735 (1980)            ____  ______________     ______            (evidence otherwise  admissible may not be  suppressed on the            ground that  it was  seized unlawfully from  a third  party);            United  States  v. Caceres,  440  U.S.  741 (1979)  (evidence            ______________     _______            obtained  in   violation  of  IRS  regulation   need  not  be            suppressed).   There was thus  no abuse of  discretion in the            denial of the motion.                      Affirmed.                      _________                                         -30-                                          30
