                                                               [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                    FOR TH E ELEV ENTH C IRCUIT
                                                          FILED
                      ________________________ U.S. COURT OF APPEALS
                                                  ELEVENTH CIRCUIT
                                                      AUGUST 18, 2003
                            No. 01-11553
                                                      THOMAS K. KAHN
                      ________________________            CLERK

                   D. C. Docket No. 97-00054-CR-UUB

UNI TED STA TES OF A MER ICA,

                                                         Plaintiff-Appellee-
                                                           Cross- Appe llant,

                                versus

JUA N AL MEI DA,

                                                      Defendant-Appellant-
                                                           Cross- Appe llee.

                      _______________________

                            No. 01-13235
                      ________________________

                        No. 97-00054-CR-UUB

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,
     versus

JUAN ALMEIDA,

                                                      Defen dant-A ppellant.
                                ________________________

                       Appeals from the United States District Court
                           for the Southern District of Florida
                             _________________________

                                       (August 18, 2003)


Before TJOFLAT and BARKETT, Circuit Judges, and WEINER*, District Judge.

TJOFLA T, Circuit Judge:

                                                 I.

       On March 10, 1998, a federal grand jury sitting in the Southern District of

Florida issued a th irty-coun t superse ding ind ictment alle ging tha t the defen dant in

this case, Ju an Alm eida, com mitted sev eral crime s when he mad e arrang ements to

distribute large quantities of cocaine to New York and Russia. Almeida was

charged in nine of the thirty counts, 1 and he was ultimately convicted on count two

(cocaine conspiracy). The jury returned verdicts of not guilty on the remaining



       *
       Honorable Charles R. Weiner, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
       1
         Almeida was charged with the following: conspiring to engage in a racketeering
conspiracy in violation of 18 U.S.C. § 1962(d) (count one); conspiring to possess with intent to
distribute large quantities of cocaine in violation of 21 U.S.C. § 846 (count two); unlawful use of
a telephone to facilitate the drug conspiracy in violation of 21 U.S.C. § 843(b) (counts sixteen
and nineteen); and interstate and foreign travel with the intent to facilitate the drug conspiracy in
violation of 18 U.S.C. § 1952 (counts twenty, twenty-one, twenty-two, twenty-three, twenty-
four, and twenty-five).

                                                  2
counts, s ave for th ose wh ich the G overnm ent dism issed prio r to trial. 2

       The conspiracy to distribute cocaine allegedly encompassed three ventures

that wer e under taken be tween 1 986 an d 1995 . The firs t venture , the Go vernm ent

contends, took place in the late 1980's when Almeida, along with fugitive co-

conspirator Nelson “Tony” Yester, coordinated the transportation of several

shipments of cocaine from Miami to New York.3 The second venture entailed a

grandiose scheme to acquire a World War II–era Russian submarine for a

Colombian drug cartel. The third venture involved a plan to conceal cocaine inside

Russia-bound shipments of shrimp. The Government’s “star” witness with respect

to the sub marine a nd shrim p ventu res was one Lu dwig “T arzan” F ainberg , a

Russian -speakin g immig rant wh o was c harged in the con spiracy an d ultimate ly

plead gu ilty pursu ant to a ple a agreem ent.

       Almeida and Fainberg each hired their own defense attorneys. They

believed, however, that some coordination might be useful in defeating the

Government’s case – particularly since many of the Government’s exhibits were



       2
           The Government dismissed counts one and twenty.
       3
        The Government’s proof as to this phase of the conspiracy was presented primarily
through the testimony of Alexis de la Nuez and Ricardo Olmedo, both of whom were supposedly
involved in the cocaine deliveries. These alleged cocaine traffickers will appear again in this
opinion, because Almeida claims that an erroneous evidentiary ruling by the district court
precluded him from exposing a de la Nuez-Olmedo conspiracy to fabricate testimony in an effort
to curry favor with the Government and thereby get a reduction in their prison sentences.

                                               3
recordings of Russian conversations and Fainberg was fluent in the language.4 The

co-defe ndants th erefore e ntered in to an ora l joint defe nse agre ement. A ccordin g to

Almeida’s counsel, “countless volumes of attorney-client and work product

information [were] . . . shared between the parties” and “dozens of meetings

(totaling w ell over 1 00 hou rs) wer e held.”

       On February 19, 1999, approximately one month before trial, Fainberg

decided to defect from the united fron t. In return for his testimony against

Almeida, the Government allowed Fainberg to plead to a single count of

racketeering.5 In the Government’s view, this change of heart required the district

court to address two key issues – n amely, the alleged existence of an attorney-

client priv ilege and a possib le conflict o f interest.

       Durin g the G overnm ent’s case in chief, the p rosecuto r inform ed the co urt in


       4
        Almeida had the most to gain from any coordination due to Fainberg’s ability to speak
the Russian language, although Fainberg presumably received some benefits, such as the ability
to coordinate a consistent story with his co-defendant.
       5
       In addition to seeking dismissal of counts two through thirty of the indictment, the plea
agreement also contained the following promise:
      If in the sole and unreviewable judgment of this Office the defendant’s
      cooperation is of such quality and significance to the investigation or prosecution
      of other criminal matters as to warrant the Court’s downward departure from a
      sentence required by the Sentencing Guidelines, this Office may: 1) at or before
      sentencing make a motion . . . recommending that the Court sentence the
      defendant within a guideline range of Level 28; 2) recommend to the appropriate
      federal agencies that the defendant be considered for an S visa, if he meets their
      other criteria; and, 3) recommend to the appropriate federal agencies that the
      defendant and members of his immediate family residing in the United States be
      considered for admission into the Witness Security Program, if appropriate.

                                                4
the absence of the jury that Fainberg would be her next witness and that she

expected him to assert his “attorney-client privilege” with Almeida’s counsel. The

following court-counsel colloquy ensued. The prosecutor said that when Fainberg

spoke to Almeid a’s coun sel in con nection w ith the join t defense , “it was jus t as if

[Fainberg] was talking to his own attorney” and “[t]herefore, the attorney client

privilege wo uld exist.” This, ac cording to th e prosecutor , showed that Almeida ’s

counsel w as impaired b ecause of a co nflict of interest. Ho w could A lmeida’s

attorney e ffectively c ross-ex amine F ainberg when Almeid a’s attorne y essentially

represented Almeida and Fainberg? Almeida’s counsel, the prosecutor asserted,

suffered from a classic “divided loyalty” problem. The prosecutor therefore urged

the district court to (1) prohibit Almeida’s lawyers from using any confidential

information they had obtained from Fainberg during the two years in which the

joint defense privilege was in operation and (2) conduct a Rule 44(c)6 hearing so

that the court could either obtain a conflicts waiver from Almeida or else require

the with drawa l of Alm eida’s cou nsel for p urpose s of cros s-exam ining F ainberg .

       The court apparently thought that Almeida’s attorney was not laboring under



       6
          “The court must promptly inquire about the propriety of joint representation and must
personally advise each defendant of the right to the effective assistance of counsel, including
separate representation. Unless there is good cause to believe that no conflict of interest is likely
to arise, the court must take appropriate measures to protect each defendant’s right to counsel.”
Fed. R. Crim. P. 44(c)(2).

                                                  5
a conflict of interest; it was concerned, however, abo ut the possibility that in cross-

examining Fainberg, the attorney might elicit or make use of privileged

information. The court therefore decided to hear from Fainberg.7 Fainberg took

the stand and Almeida’s attorney asked that Fainberg summarize the information

that he co nveyed to Alm eida’s def ense team . The pr osecuto r, assum ing the rig ht to

act as Fainberg’s attorney, objected on the grounds that such communications

could not be repeated, lest a revelation of the confidential communications in open

court amount to a waiver. Although Fainberg acknowledged that the information

would be useful both in cross-examining him and other witnesses and in locating

defense witness es, the cou rt sustaine d the pro secutor’s objection .

       Referring to the prosecutor’s privilege claim, the court found that a joint

defense agre ement existed a nd conclud ed that this agreem ent precluded Almeida’s

counsel from using any information obtained from Fainberg in connection with the

joint defense. T he court no t only barred co unsel’s use of F ainberg’s

communications during cross-examination,8 but also the derivative use of the


       7
        The district court received testimony from Fainberg when it conducted a hearing to
ascertain (a) the existence of a joint defense agreement and (b) the extent to which the parties to
the agreement believed that communications would remain confidential.
       8
         Suppose, for example, that Fainberg made proclamations of Almeida’s innocence during
the joint defense strategy sessions. Such hypothetical statements would have been inconsistent
with the position Fainberg maintained while on the witness stand and might have revealed the
existence of bias stemming from the Government’s offer to advocate a reduction in Fainberg’s
sentence. To be sure, evidence of a plea agreement might, standing alone, tend to show bias. But

                                                 6
communications. 9 Defense counsel’s response to the court’s ruling was that the

court would be committing error if it severely limited their ability to cross-examine

Fainberg. Four days later, the court issued a written order (hereinafter “Order”)

that essentially reiterated its ruling from the bench, asserting that “[i]t is a matter of

ethics” and that “[i]n the absence of Fainberg’s attorney, the governm ent, as a

party with an interest, may make objections or arguments to the end of protecting

the privile ge.” 10 Faced with the court’s ruling, Almeida’s counsel advised the court

that they h ad “every intention of follow ing the co urt’s ord er” and w ould “ten d to

ask que stions tha t are not w ithin any a rea that co uld be p rivileged .” The co urt did

not, how ever, req uire the su bstitution of new counse l as the G overnm ent urge d.

Indeed, the court never undertook a Rule 44(c) hearing to ascertain the existence of

a conflict o f interest.

       What testimony wo uld have been presented bu t for the Order? O rdinarily,

such a sweeping order would have prevented any sort of proffer, and a reviewing


the existence of a plea agreement in conjunction with an inconsistent story would be much more
effective in establishing bias. The defense might also have been able to point out inconsistencies
between Fainberg’s analyses of the tape recordings made during joint defense strategy sessions
(e.g., identification of certain speakers) and those made during trial.
       9
        For example, the district court prohibited the use of confidential communications for the
purpose of “identifying and locating defense witnesses.” The court further prohibited the use of
information provided by Fainberg for the purpose of “identifying voices [and] interpreting
conversations heard in the intercepted communications.”
       10
         The Government ordinarily lacks standing to assert the attorney-client privilege for a
witness. See United States v. Ortega, 150 F.3d 937, 942 (8th Cir. 1998).

                                                7
court co uld only speculate as to wh at might h ave been revealed to the jury . In this

case, however, the post-verdict stage of the litigation provides tremendous insight

into the likely effect of the court’s ruling. After the jury found him guilty of count

two of the indictm ent, Alm eida mo ved the c ourt for a new tr ial. Arm ed with

Fainberg’s signed waiver of any privileges, he asked the court to lift the

restrictions contained in the Order. The court, citing Fainberg’s waiver, lifted the

restrictions. The court also indicated that its trial ruling had been mistaken and that

once Fainberg defected to the prosecutorial camp, he had no privilege with respect

to Alm eida’s cou nsel.

       Our first glim pse into wh at would h ave been rev ealed but for th e court’s

exclusionary r uling come s in the form o f Fainberg ’s recantination. H ad Almeid a’s

counsel been able to reveal the statements made by Fainberg during the joint

defense strategy sessions, Fainberg’s statements might have been similar to the

story he told after the jury rendered its verdict. In a post-trial deposition, Fainberg

denied conspiring with Almeida to buy or sell submarines. He claimed that

Almeida was “not gu ilty” of the charges and that the Governm ent concocted a case

based upon Fainberg’s “macho talk” that “nobody believed.” Fainberg recalled

that he related this position to one of Almeida’s lawyers du ring a joint defense

strategy se ssion, bu t that he ha d to chan ge his testim ony in o rder to g et himself



                                              8
“out of the situation.”

       We also have a glimpse at what sort of evidence was missing from the jury

room due to the “derivative” component of the Order. Fainberg once advised an

investigator11 that one Armando Fernandez 12 had information about Ricardo

Olmedo and Alexis de la Nuez – the two witnesses instrumental to the

Gove rnmen t’s case con cerning the alleged New York distributio n consp iracy.

After the ban on Almeida’s counsel was lifted, Almeida’s team visited Fernandez,

who claimed that he had seen Olmedo and d e la Nuez colluding to present false

testimony about Almeida in ord er to obtain sentence reductions. 13 Defense counsel

further proffered the corroborating testimony of as many as fifteen other inmates

who allegedly saw Olmedo and de la Nuez “openly talking about Juan Almeida,

and getting the[ir] stories straight” and later “bragging to them about how they lied

against M r. Alme ida.” 14 But for the district court’s exclusionary ruling, the



       11
        The investigator, retired FBI Agent Robert Whiting, was retained by the joint defense
team. Fainberg’s communications to Whiting about Fernandez could not be utilized by
Almeida’s counsel because of the Order.
       12
         In the fall of 1998 or early 1999, Armando Fernandez was incarcerated in Miami, along
with Fainberg, Omedo, and de la Nuez.
       13
          Fernandez also claimed that he revealed the potential perjury of Olmedo and de la Nuez
to the prosecutor and that the prosecutor suggested that he keep quiet.
       14
        Defense counsel also proffered testimony of various businessmen who had received
telephone calls from Olmedo and de la Nuez just before they testified at trial in order to get
background information about Almeida.

                                                9
defense might have elicited testimony about possible collusion between Olmedo

and de la Nuez to commit perjury – either from Fernandez15 or the fifteen other

witnesses.

                                                 II.

       Review ing the d istrict cour t’s eviden tiary ruling s for abu se of disc retion, see

United States v. M arshall, 173 F .3d 131 2, 1314 n.3 (11 th Cir. 1999) (citation

omitted), we hold that the court abused its discretion when it precluded Almeida

from utilizing the communications that Fainb erg made to Almeida’s attorneys

while operating under the joint defense agreement. We believe that Fainberg

waived the privile ge wh en he ag reed to p lead guilty and testify against A lmeida in

exchange for the Government’s dismissal of several counts in the indictment. The

district cou rt was co rrect wh en it conc eded in its order d enying a new tria l that its

exclusio nary rulin g was e rroneo us, althou gh the co urt incor rectly con cluded th at its

error was harmless. 16

       15
           It is not entirely clear whether Fernandez would have testified. According to
Fernandez’s attorney, the prosecutor warned him that “if Mr. Fernandez would testify as a
defense witness to impeach the government witness, he would be committing perjury, and an
investigation would ensue as to whether he perjured himself if he testified as a defense witness.”
It is not surprising, then, that Fernandez’s lawyer advised his client to assert his Fifth
Amendment privilege rather than testify in a post-verdict hearing. Even so, Almeida’s attorneys
claim that Fernandez agreed to testify. Moreover, the Government would be guilty of
misconduct if this threat were actually made. See United States v. Schlei, 122 F.3d 944, 991-93
(11th Cir. 1997); United States v. Heller, 830 F.2d 150, 152-54 (11th Cir. 1987).
       16
         The district court ultimately held that its error was harmless in light of the “withering”
cross-examination of Fainberg.

                                                 10
                                                 A.

        Like the Government’s contention at trial, Almeida’s principal argument on

appeal fo cuses up on the co nflict of in terest that alle gedly inte rfered w ith the ability

of Alm eida’s cou nsel to eff ectively rep resent the ir client. It is tru e that the S ixth

Amendment right to have the effective assistance of counsel encompasses the right

to have c ounsel u ntainted b y conflicts of interes t. See Holloway v. Arkansas, 435

U.S. 4 75, 98 S . Ct. 117 3, 55 L . Ed. 2d 426 (1 978); Cuyler v. Sullivan, 446 U.S.

335, 100 S. Ct. 170 8, 64 L. Ed. 2d 33 3 (1980). But the case law d oes not address

the much more tenuous claim of ineffective representation that arises in the joint

defense agreem ent scena rio. In the prototyp ical case, an attorney in itially

represents two defendants and is forced to cross-examine one of them in the same

proceeding or a successive proceeding. In such a case, the attorney owes each

client a duty of loyalty. The attorney faces an impossible choice: he can either

vigorously cross-examine the client-turned-witness and thereby violate his duty of

loyalty to the client on the witness stand, or he can temper his cross-examination

and risk violating his duty o f loyalty to th e client on trial. 17

        When co-defendants enter into a joint defense agreement, by contrast, each



        17
         The duty of loyalty sometimes continues even after the attorney-client relationship
ceases to exist, and so conflicts of interest can still arise even if the attorney represents only one
party.

                                                  11
defendant retains his own attorney. As we discuss below, confidential

comm unication s made d uring jo int defen se strategy sessions are privile ged. See

Wilson A. Abraham Const. Co. v. Armco Steel Corp., 559 F .2d 250 , 253 (5 th Cir.

1997) ; United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). A duty of

loyalty, ho wever , does no t exist in this situation a nd it is ther efore im proper to

conclud e that all of th e attorney s in the join t defense strategy se ssion rep resent all

of the participating defendants. Any potential conflict of interest arises solely from

the fact tha t when defend ant B becomes a witness for the state, the attorney for

defend ant A must make sure that the attorney-client privilege is respected and that

confidential communications are not revealed. The mere inability to utilize the

privilege d comm unication s is not itself a manife station of a conflict o f interest,

because no lawyer in the w orld could utilize those communications. 18 Rather, the

potential c onflict of interest stem s from th e fact that d efendan t A’s lawyer might be

so tongue-tied (due to his fear of revealing the confidential communications made

by defen dant B) that his re presenta tion of d efendan t A suffers.19 Since the degree



       18
          Almeida seems to miss this pont. He argues that his attorneys’ inability to reveal and
utilize Fainberg’s communications were the “actual effects” of a conflict of interest. This is
incorrect; if the communications were privileged (a point that we reject, infra), then no attorney
could reveal Fainberg’s communications.
       19
          Unlike the present case, the attorneys in United States v. Henke, 222 F.3d 633, 638 (9th
Cir. 2000), “told the district court that this was not a situation where they could avoid reliance on
the privileged information and still fully uphold their ethical duty to represent their clients.”

                                                 12
to whic h defen dant A’s lawyer is impaired may be de minimis, the rules announced

by Cuyler and Holloway might b e inapplic able (or s ubject to m odificatio n) in this

scenario. We need not decide the issue, however, because we hold that Fainberg

waived his attorney-client privilege when he turned state’s evidence, thereby

entirely rem oving th e possib ility of a con flict of inter est from the case.



                                              B.

       The attorney-client privilege is intended to encourage “full and frank

communications between attorneys and their clients and thereby promote broader

public interests in the observance of law and administration of justice.” Upjohn

Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584

(1981). More broadly, the privilege is grounded “in the interest and administration

of justice, o f the aid o f person s having know ledge of the law a nd skilled in its

practice, which assistance can only be safely and readily availed of when free from

the consequences or the apprehension of disclosure.” Hunt v. Blackburn, 128 U.S.

464, 47 0, 9 S. C t. 125, 12 7, 32 L . Ed. 48 8 (188 8).

       When a defendant conveys information to the lawyer of his co-defendant, as

opposed to his own lawyer, the justification for protecting the confidentiality of the

information is weak. The policy of fostering frank communication with an



                                              13
attorney is already facilitated by privileging those communications made to the

defendant’s own attorney; little can be gained by extend ing the privilege those

communications made to attorneys that do not represent the defendant. On the

other hand, in light of the vast resources of the government, it is perhaps

appropriate that co-defendants be given the opportunity to collaborate on defense

tactics and exchange information in a confidential fashion without forcing the

defend ants to hir e the sam e attorney – a situatio n that is alm ost alwa ys ripe w ith

real conflicts of interest. Therefore, many courts have held that the attorney-client

privilege gives rise to a conc omitant “jo int defen se privileg e” whic h “serves to

protect the confidentiality of communications passing from one party to the

attorney for another party where a joint defense effort or strategy has been decided

upon and undertaken by the parties and their respective counsel.” Schwimmer, 892

F.2d at 243. As the Second Circuit observed, “The need to protect the free flow of

information from client to attorney logically exists whenever multiple clients share

a common interest about a legal matter.” Id. at 243-44 (citation and quotation

marks omitted).

       The attorney-client privilege is riddled with many exceptions, two of which

are mos t relevant to this case. M any jurisd ictions, inc luding th e forme r Fifth

Circuit, have held that where “the same attorney acts for two or more parties



                                             14
having a common interest, neither party may exercise the privilege in a subsequent

controversy with the other.” Garner v. Wolfinbarger, 430 F .2d 109 3, 1103 (5th

Cir. 197 0). A lea ding trea tise furthe r explain s that “[w ]hen tw o or mo re perso ns . .

. jointly consult an attorney . . and [subsequently] become engaged in a

controversy in which the communications at their joint consultation with the

lawyer may be vitally material,” then it “is clear that the privilege is inapplicable.”

John W . Strong et al., McCormick on Evidence § 91 (5 th ed. 1999). The treatise

asserts tha t there are tw o rationa les for the rule:


       In the first place the policy of encouraging disclosure by holding out
       the promise of protection seems inapposite, since as between
       themselves neither would know whether he would be more helped or
       handicapped, if in any dispute between them, both could invoke the
       shield of secrecy. And secondly it is said that they had obviously no
       intention of keeping these secretes from each other, and hence as
       betwee n thems elves it w as not inte nded to be conf idential.

Id.

       It is also an ancient rule in many jurisdictions that “where an accomplice

turns state’s evidence and attempts to convict others by testimony w hich also

convicts himself, he thereby waives the privilege against disclosing

communications between himself and counsel.” See W.R. Habeeb, Annotation,

Party’s Waiver of Privilege as to Communications with Counsel by Taking Stand

and Testifying, 51 A.L.R.2d 521 § 4 (1957). In the nearly 150-year-old case of

                                              15
Alderm an v. Pe ople, 4 Mich. 414 (Mich. 1857) (internal citations omitted), for

example, the court said as follows:


       But there is a broader ground upon which the admission of the
       excluded evidence may be based, and that is, the witness . . . was an
       accomplice in the crime for which the defendants, his associates, were
       on trial. He had been led to give evidence for the people under an
       express or implied promise of pardon, or that he should not be
       prosecu ted, on co ndition th at he sho uld mak e a full and fair
       confession of the truth. It is a rule of law, that no witness shall be
       required to answer any question that may tend to criminate himself,
       yet the accomplice, when he enters the witness box with a view of
       escaping punish ment him self, by a b etrayal of h is co-w orkers in
       crime, yield s up and leaves tha t privilege behind him. H e contrac ts to
       make a full statement, to keep back nothing, although in doing so he
       may bu t confirm his ow n guilt an d infam y. If he fails to do so in full,
       if he knowingly keeps back any portion of the history of the crime he
       undertakes to narrate, he forfeits his right to pardon, and may be
       proceeded against and convicted upon his own confession, already
       made. We think an accomplice who makes himself a witness for the
       people s hould b e require d to give a full and comple te statemen t of all
       that he and his associates have done or said, relative to the crime
       charged , no matte r when or wh ere don e, or to w hom sa id. He sh ould
       be allow ed no p rivileged comm unication s. These he has v oluntarily
       surrend ered. Th e enforc ement o f such a r ule may b e the only
       protectio n the par ty on trial h as left – the only me ans rem aining to
       him to meet, it may be, the perjury of the criminal upon the w itness
       stand.

Similarly, in the venerable case of Jones v . State , 3 So. 379, 380 (1888) (internal

citations omitted), the court described the waiver that occurs when an accomplice

testifies on behalf of the state:

       While th e privileg e may be waived by the clien t, it is genera lly held

                                            16
       that he do es not do so mere ly by beco ming a w itness and testifying in
       his own behalf. But when one jointly indicted with others turns
       state’s evidence, and attempts to convict others by testimony which
       also con victs him self, the ru le must b e differen t, and he h as no rig ht to
       claim any privilege concerning any of the facts pertinent to the issue,
       nor any exemp tion from the broa dest latitud e of cros s-exam ination.
       He thereby waives all privilege against criminating himself, and
       against disclosing communications between himself and his counsel
       touching the offense charged. Both client and counsel may, in such
       case, be compelled to disclose such comm unications.

       Both exceptions to the attorney-client privilege are open to criticism. By

finding implied w aivers, co urts risk e roding the pub lic’s confid ence that th eir

comm unication s will rem ain conf idential so long as c ommu nicated to a lawyer .

See, e.g., Sutton v. State, 16 Tex. App. 490 (1884) (criticizing the accomplice-

turned-state’s-evidence exception because it erodes the privilege). For this reason,

we do not hold that accomplices always waive the privilege when they testify on

behalf of the government; nor do we hold that persons represented by the same

attorney always waive the privilege in the event that one o f them becomes a

government witness against the other.20 In the join t defense agreem ent conte xt,

however, the policy rationales behind the two exceptions outweigh the minimal

benefit of the attorney-client privilege. As one court recently explained:

             Although a limitation on confidentiality between a defendant
       and his own attorney w ould pose a severe threat to the true attorney-


       20
         We do not foreclose such holdings in a future case. The facts of this case, however, do
not require us to establish such a sweeping rule.

                                               17
       client relationship, making each defendant somewhat more guarded
       about the disclosures he makes to the joint defense effort does not
       significan tly intrude on the fu nction o f joint def ense agr eements . . . .

             . . . .Co-defendants may eliminate inconsistent defenses without
       the same degree o f disclosu re that w ould be required for an atto rney to
       adequately represent her client. The legitimate value of joint defense
       agreements will not be significantly diminished by including a limited
       waiver of confidentiality by testifying defendants for purposes of
       cross-examination only.

United States v. Stepney, 246 F. Supp. 2d 1069, 1086 (N. D. Cal. 2003).

                                               III.

       We hold that when each party to a joint defense agreement is represented by

his own attorney, and when communications by one co-defendant are made to the

attorneys of other co-defendants, such communications do not get the benefit of the

attorney-client privilege in the event that the co-defendant decides to testify on

behalf of the government in exchange for a reduced sentence.21 The district cou rt’s

error pr evented the introd uction o f crucial ev idence th at wou ld have s ignifican tly

undermined the credibility of three of the G overnment’s key witnesses. Th ere is a

reasonable possibility that the jury would not have convicted Almeida but for the



       21
          In the future, defense lawyers should insist that their clients enter into written joint
defense agreements that contain a clear statement of the waiver rule enunciated in this case,
thereby allowing each defendant the opportunity to fully understand his rights prior to entering
into the agreement. See, e.g., Stepney, 246 F. Supp. 2d at 1084-86 (requiring that a written joint
defense agreement include a provision that the attorney-client privilege is waived in the event
that a co-defendant takes the stand against his accomplice, and citing the model joint defense
agreement prepared by the American Law Institute and American Bar Association).

                                                18
district court’s erroneous exclusionary ruling. The error was not harmless, and

Almeida’s conviction is therefore VACAT ED and the case is REMAN DED for a

new tria l.22



       SO ORDERED.




       22
            We find it unnecessary to address the parties’ other alleged points of error.

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