                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      MAY 15 1998
                                          PUBLISH

                      UNITED STATES COURT OF APPEALS              PATRICK FISHER
                                                                           Clerk
                                    TENTH CIRCUIT




 IN RE: GRAND JURY SUBPOENAS,
 Jane Roe and John Doe.
 ------------------------------------------------

 INTERVENOR,                                           No. 97-3120

                Appellant,
        v.
 UNITED STATES OF AMERICA,

                Appellee.




         APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF KANSAS
                      (D.C. NO. 97-CV-2181)


James R. Wyrsch (Jacqueline A. Cook, with him on the briefs), Wyrsch Hobbs
Mirakian & Lee, P.C., Kansas City, Missouri, for Appellant.

Tanya J. Treadway, Assistant United States Attorney (Jackie N. Williams, United
States Attorney, with her on the brief), Kansas City, Kansas, for Appellee.
Before ANDERSON and KELLY, Circuit Judges, and BRETT, * District Judge.


ANDERSON, Circuit Judge.




      Intervenor-Appellant 1 appeals from the district court’s order compelling the

testimony of two attorneys, John Doe and Jane Roe, before a federal grand jury.

He argues that the district court erred by: (1) applying the crime-fraud exception

to attorney-client privilege to compel the attorneys’ testimony; (2) applying the

exception too broadly and refusing to review the questions to be asked of the

attorneys before the grand jury; (3) refusing to disclose or to allow rebuttal of the

government’s in camera, ex parte showing that the crime-fraud exception applied;

and (4) prohibiting the attorneys from invoking Intervenor’s Fifth Amendment

right against self-incrimination. The government challenges Intervenor’s standing

to bring the present appeal. We affirm.




      *
       The Honorable Thomas R. Brett, Senior U.S. District Judge, United States District
Court of the Northern District of Oklahoma, sitting by designation.
      1
        Because Appellant is the subject of a grand jury investigation, he is referred to
herein as “Intervenor” pursuant to Fed. R. Crim. P. 6(e). Likewise, the hospital for which
he worked will be referred to as “The Hospital.” The two attorneys involved will be
referred to as “John Doe” and “Jane Roe.”

                                           -2-
                                  BACKGROUND

        Intervenor, several hospitals, doctors, and others are targets of an ongoing

federal grand jury investigation. The Hospital, which employed Intervenor as

President and Chief Executive Officer during the relevant time periods, responded

to the grand jury’s subpoenas duces tecum by producing numerous documents,

some of which implicated the use of attorneys John Doe and Jane Roe to

effectuate the crimes. Doe and Roe provided legal services to The Hospital

during the time of the alleged criminal activity. The Hospital and Intervenor also

sought the advice of other attorneys after the FBI initiated its investigation in

1992.

        The grand jury issued subpoenas seeking the testimony of Doe and Roe

before it on January 21, 1997. The Hospital, Doe, and Roe moved, on January 16,

1997, to quash the subpoenas because of the attorney-client privilege and the

work-product doctrine (referred to hereinafter as “privileges” for convenience)

and because the testimony would violate The Hospital’s Sixth Amendment right to

counsel. That same day, Intervenor moved to intervene and to quash the

subpoenas, asserting the privileges on the basis of his relationship with the

attorneys in his individual capacity, independent of the attorneys’ relationship

with The Hospital and its officers in their official capacities. On January 30,

1997, the government filed a response to the motions, arguing, inter alia, that the


                                          -3-
parties had failed to prove entitlement to the privileges, that The Hospital’s

production of documents waived the privileges, and that the crime-fraud

exception vitiates the privileges. In support of its position, the government

simultaneously filed an in camera, ex parte good faith statement of evidence as to

the alleged criminal activity, which Doe, Roe, The Hospital, and Intervenor have

not been permitted to view.

      The district court conducted a hearing on the motions on February 24,

1997. The court granted Intervenor’s motion to intervene, but found that the

crime-fraud exception to the attorney-client privilege applied because the

government had established a prima facie case that The Hospital had engaged in

criminal or fraudulent conduct, which was furthered by the aid of Roe and Doe.

The court accordingly denied the motions to quash, subject to further

development of the record, including specific questions and answers before the

grand jury. The court refused to permit movants to view the government’s good

faith statement of evidence or to conduct a separate hearing at which movants

could attempt to rebut the evidence, although the court did allow counsel for

Intervenor to present arguments intended to rebut the prima facie showing.

      On March 19, 1997, Ms. Roe appeared before the grand jury and asserted

the attorney-client privilege and the work-product doctrine in response to virtually

every question asked of her. She also vicariously raised Intervenor’s Fifth


                                         -4-
Amendment right against self-incrimination at his request. Mr. Doe appeared

before the grand jury on April 2, 1997, and did the same. On March 25, 1997, the

government moved to compel Ms. Roe’s testimony, and it orally moved to compel

Mr. Doe’s testimony on April 2, 1997. Mr. Doe and Ms. Roe responded to the

motion to compel, and The Hospital and Intervenor moved to intervene.

      The court conducted hearings on the motions on April 2 and 7, 1997, during

which the court heard the testimony of Mr. Doe, Ms. Roe, and Intervenor

regarding any attorney-client relationship between the attorneys and Intervenor in

his individual capacity. The court granted both motions to intervene because “for

purposes of the motion to intervene, . . . the attorney-client privilege has been

sufficiently established, and the Court would find that at relevant times [Ms. Roe

and Mr. Doe] were providing joint representation to [The Hospital and to

Intervenor].” Appellee’s Supplemental App. at 305.

      At the April 7, 1997, hearing, the government presented further in camera,

ex parte evidence of the involvement of Ms. Roe and Mr. Doe in the criminal

activity. The district court found that the crime-fraud exception applied, and the

court orally sustained the government’s motion to compel the testimony of Ms.

Roe and Mr. Doe. The Hospital and Intervenor indicated their intent to file an

appeal and moved to stay the proceedings pending the appeal. Subsequently, on

May 1, 1997, the court entered its written order (1) sustaining the motion to


                                          -5-
compel testimony of Ms. Roe and Mr. Doe; (2) overruling Intervenor’s request

that Ms. Roe and Mr. Doe be allowed to assert Intervenor’s Fifth Amendment

right against self-incrimination; and (3) granting the motion to stay pending

appeal. Intervenor appeals the first two decisions. 2



                                    DISCUSSION

      In general, the granting of a motion to compel testimony is interlocutory in

nature and is not an appealable order. In re Grand Jury Proceedings (Company

X), 857 F.2d 710, 711 (10th Cir. 1988). The present case, however, comes within

an exception to that general rule as announced in Perlman v. United States, 247

U.S. 7 (1918). Because Doe and Roe have indicated their intent to comply with

the order rather than risk contempt, the order is appealable and we have

jurisdiction pursuant to 28 U.S.C. § 1291. See In re Grand Jury Proceedings

(Company X), 857 F.2d at 711-12; In re Grand Jury Proceedings (Vargas), 723

F.2d 1461, 1466 (10th Cir. 1983); see also United States v. Nixon, 418 U.S. 683,




      2
        Mr. Doe and Ms. Roe did not appeal the decision. The Hospital appealed, but,
upon its motion, the appeal was dismissed. Pursuant to a settlement agreement with the
government, The Hospital agreed to waive its prior assertion of the attorney-client
privilege and the work-product doctrine as to any document or information concerning
contracts between it and the doctors from September 1, 1984, to February 1, 1995. See
Appellee’s Supplemental App. at 331-32.

                                          -6-
690-91 (1974); In re Grand Jury Subpoenas Dated December 7 and 8, 40 F.3d

1096, 1099 (10th Cir. 1994).



                   I. Attorney-Client Privilege and Standing

      The government argues that Intervenor lacks standing to bring this appeal

because he was never a client of Doe or Roe in his individual capacity, and,

therefore, he cannot assert the attorney-client privilege. When the district court

granted Intervenor’s motion to intervene, it found that the attorney-client

privilege existed for the limited purposes of moving to quash the testimony of

Roe and Doe and of objecting to the government’s motion to compel the

testimony. See Appellee’s Supplemental App. at 288, 305. At the time of the

court’s decision, The Hospital was still involved in the case and was asserting the

attorney-client privilege in an attempt to prevent Roe and Doe from testifying

before the grand jury. Subsequently, The Hospital and the government reached a

settlement agreement, and The Hospital no longer asserts the attorney-client

privilege for itself or its officers so as to prevent the grand jury testimony of Doe

and Roe. Intervenor, therefore, must prove the existence of an attorney-client

privilege for himself in his individual capacity.

      We review the issue of standing de novo. See Committee to Save the Rio

Hondo v. Lucero, 102 F.3d 445, 447 (10th Cir. 1996). We review the factual


                                         -7-
findings underlying the court’s attorney-client privilege ruling for clear error and

purely legal questions de novo. See Frontier Refining Inc. v. Gorman-Rupp Co.,

136 F.3d 695, 699 (10th Cir. 1998).

      “The doctrine of standing ‘is an essential and unchanging part of the case-

or-controversy requirement of Article III.’” Lucero, 102 F.3d at 447 (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). To satisfy the

standing requirement, “a party must establish three elements: (1) injury in fact,

(2) a causal relationship between the injury and the challenged conduct, and (3)

likelihood that the injury will be redressed by a favorable decision.” Wilson v.

Glenwood Intermountain Properties, Inc., 98 F.3d 590, 593 (10th Cir. 1996). In

the present case, Intervenor’s ability to satisfy the elements required for standing

is inextricably tied to his ability to claim the attorney-client privilege. If the

attorney-client privilege does exist between Intervenor in his individual capacity

and Attorneys Roe and Doe, then Intervenor has standing. See Henderson v.

United States, 815 F.2d 1189, 1192 (8th Cir. 1987); Young v. Taylor, 466 F.2d

1329, 1333 (10th Cir. 1972).

      The party seeking to assert the attorney-client privilege has the burden of

establishing its applicability. Motley v. Marathon Oil Co., 71 F.3d 1547, 1550

(10th Cir. 1995). The privilege is governed by the common law and is to be

strictly construed. Trammel v. United States, 445 U.S. 40, 47, 50 (1980); In re


                                           -8-
Grand Jury Proceedings of John Doe v. United States, 842 F.2d 244, 245-46 (10th

Cir. 1988). “The purpose behind the attorney-client privilege is to preserve

confidential communications between attorney and client.” In re Grand Jury

Subpoenas (United States v. Anderson), 906 F.2d 1485, 1492 (10th Cir. 1990).

Where a corporate client is involved, “special problems” arise because, “[a]s an

inanimate entity, a corporation must act through agents.” Commodity Futures

Trading Comm’n v. Weintraub, 471 U.S. 343, 348 (1985). Any privilege

resulting from communications between corporate officers and corporate

attorneys concerning matters within the scope of the corporation’s affairs and the

officer’s duties belongs to the corporation and not to the officer. See United

States v. International Bhd. of Teamsters, 119 F.3d 210, 215 (2d Cir. 1997); In re

Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120, 124 (3d Cir.

1986); see also Weintraub, 471 U.S. at 348-49; Upjohn Co. v. United States, 449

U.S. 383, 394-95 (1981). Thus, Intervenor has no power to assert the attorney-

client privilege except as to confidential communications with Doe and Roe in his

individual capacity, which is unlikely to be anything more than a minute portion

of the total communications sought by the grand jury.

      The Second and Third Circuits have employed the following test to

determine whether an officer may assert a personal privilege with respect to




                                         -9-
conversations with corporate counsel despite the fact that the privilege generally

belongs to the corporation:

            First, they must show they approached [counsel] for the
      purpose of seeking legal advice. Second, they must demonstrate that
      when they approached [counsel] they made it clear that they were
      seeking legal advice in their individual rather than in their
      representative capacities. Third, they must demonstrate that the
      [counsel] saw fit to communicate with them in their individual
      capacities, knowing that a possible conflict could arise. Fourth, they
      must prove that their conversations with [counsel] were confidential.
      And, fifth, they must show that the substance of their conversations
      with [counsel] did not concern matters within the company or the
      general affairs of the company.

International Bhd. of Teamsters, 119 F.3d at 215 (quoting In re Bevill, 805 F.2d

at 123 (quoting In re Grand Jury Investigation, 575 F. Supp. 777, 780 (N.D. Ga.

1983))). A personal privilege does not exist merely because the officer

“reasonably believed” that he was being represented by corporate counsel on an

individual basis. International Bhd. of Teamsters, 119 F.3d at 216. In certain

circumstances, reasonable belief may be enough to create an attorney-client

relationship, but it is not sufficient here to create a personal attorney-client

privilege. See Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1384 (10th Cir. 1994)

(holding, in context of motion to disqualify counsel, attorney-client relationship

exists where party submits confidential information to a lawyer and it does so

with a reasonable belief that the lawyer was acting as its attorney).




                                          -10-
      The district court heard the testimony of Intervenor, Ms. Roe, and Mr. Doe

concerning the existence of a personal attorney-client privilege. Each of them

testified that Intervenor sought the advice of the attorneys in his individual

capacity and that confidential communications occurred between them as to his

personal situation. Doe and Roe testified that they recognized a potential conflict

of interest. The court concluded that “for purposes of the motion to intervene, . .

. the attorney-client privilege has been sufficiently established, and the Court

would find that at relevant times [Ms. Roe and Mr. Doe] were providing joint

representation to [The Hospital and to Intervenor].” Appellee’s Supplemental

App. at 305. In making this finding, the district court necessarily relied on the

credibility of the witnesses before it and on facts which have not been

demonstrated to us to be clearly erroneous.

      Accordingly, adopting and applying the test employed by the Second and

Third Circuits, we conclude that a limited attorney-client privilege exists between

Intervenor and Roe and Doe. Our holding is an extremely limited one and does

not extend to communications made while third parties were present nor does it

extend to communications in which both corporate and individual liability were

discussed. It includes only that very small portion of communications in which

Intervenor sought legal advice as to his personal liability without regard to any




                                         -11-
corporate considerations. To the limited extent there is a privilege then,

Intervenor has standing.



                   II. Application of Crime-Fraud Exception

      Next, we address, whether, in light of the limited attorney-client privilege,

that privilege is vitiated by the crime-fraud exception. We review the district

court’s granting of the motion to compel and its determination that the crime-

fraud exception applies for abuse of discretion. In re Grand Jury Proceedings

(Company X), 857 F.2d at 712. We will not disturb the court’s exercise of its

discretion unless we have a “definite and firm conviction that the lower court

made a clear error of judgment or exceeded the bounds of permissible choice in

the circumstances.” Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994)

(quotation omitted).

      The importance and sanctity of the attorney-client privilege is well

established. See Upjohn v. United States, 449 U.S. 383, 389 (1981). Yet, the

privilege is not worthy of protection “at all costs” as Intervenor suggests.

Appellant’s Br. at 49. Because it “‘withhold[s] relevant information from the

factfinder,’” United States v. Zolin, 491 U.S. 554, 562 (1989) (citation omitted),

the “‘attorney-client privilege does not apply where the client consults an attorney

to further a crime or fraud.’” Motley v. Marathon Oil Co., 71 F.3d 1547, 1551


                                        -12-
(10th Cir. 1995) (quoting In re Grand Jury Proceedings (Company X), 857 F.2d

710, 712 (10th Cir. 1988)). “It is the purpose of the crime-fraud exception to the

attorney-client privilege to assure that the ‘seal of secrecy,’ between lawyer and

client does not extend to communications ‘made for the purpose of getting advice

for the commission of a fraud’ or crime.” Zolin, 491 U.S. at 563 (citations

omitted). The crime-fraud exception applies to both the attorney-client privilege

and the work-product doctrine. In re Grand Jury Proceedings (Vargas), 723 F.2d

1461, 1467 (10th Cir. 1983).

      To invoke the crime-fraud exception, the party opposing the privilege must

present prima facie evidence that the allegation of attorney participation in the

crime or fraud has some foundation in fact. Motley, 71 F.3d at 1551; In re Grand

Jury Proceedings (Vargas), 723 F.2d at 1467. The evidence must show that the

client was engaged in or was planning the criminal or fraudulent conduct when it

sought the assistance of counsel and that the assistance was obtained in

furtherance of the conduct or was closely related to it. See In re Grand Jury

Investigation (Schroeder), 842 F.2d 1223, 1226 (11th Cir. 1987). The exception

does not apply if the assistance is sought only to disclose past wrongdoing, see

Zolin, 491 U.S. at 562, but it does apply if the assistance was used to cover up

and perpetuate the crime or fraud. See In re Grand Jury Proceedings (Company

X), 857 F.2d at 712; see also In re Grand Jury Proceedings (Doe), 102 F.3d 748,


                                         -13-
749-51 (4th Cir. 1996) (applying exception where client used lawyers, without

their knowledge, to misrepresent or to conceal what the client had already done);

In re Richard Roe, Inc., 68 F.3d 38, 40 (2d Cir. 1995) (noting that exception

applies where “communication with counsel or attorney work product was

intended in some way to facilitate or to conceal the criminal activity”); In re

Sealed Case, 754 F.2d 395, 402 (D.C. Cir. 1985) (“To the limited extent that past

acts of misconduct were the subject of the cover-up that occurred during the

period of representation, however, then past violations properly may be a subject

of grand jury inquiry.”).

      Although the exact quantum of proof necessary to meet the prima facie

standard has not been decided by the Supreme Court, see Zolin, 491 U.S. at 563-

64 & n.7, several circuits have attempted to define precisely what the standard

requires. See, e.g., In re Richard Roe, Inc., 68 F.3d 38, 40 (2d Cir. 1995)

(probable cause to believe a crime or fraud has been committed); Haines v.

Liggett Group Inc., 975 F.2d 81, 95-96 (3d Cir. 1992) (evidence that if believed

by the fact finder would be sufficient to support a finding that the elements of the

crime-fraud exception were met); In re International Sys. & Controls Corp. Sec.

Litig., 693 F.2d 1235, 1242 (5th Cir. 1982) (evidence such as will suffice until

contradicted and overcome by other evidence); United States v. Davis, 1 F.3d

606, 609 (7th Cir. 1993) (evidence presented by the party seeking application of


                                         -14-
the exception is sufficient to require the party asserting the privilege to come

forward with its own evidence to support the privilege); In re Grand Jury

Proceedings (Corporation), 87 F.3d 377, 381 (9th Cir. 1996) (reasonable cause to

believe attorney was used in furtherance of ongoing scheme); In re Grand Jury

Investigation (Schroeder), 842 F.2d 1223, 1226 (11th Cir. 1987) (evidence that if

believed by the trier of fact would establish the elements of some violation that

was ongoing or about to be committed); In re Sealed Case, 107 F.3d 46, 50 (D.C.

Cir. 1997) (evidence that if believed by the trier of fact would establish the

elements of an ongoing or imminent crime or fraud). We need not articulate the

exact quantum of proof here because under any of these announced standards, the

government has made a prima facie showing.

      The court below found that the government had “established by substantial

and competent evidence a prima facie case that [The Hospital and Intervenor]

have committed a crime, that [The Hospital and Intervenor] used the legal

services of Roe and Doe in furtherance of that crime, and that Roe and Doe were

aware of the criminal conduct.” Appellant’s App. Vol. II at 226. We have

reviewed the record, including the government’s ex parte, in camera submission,

and conclude that the district court did not abuse its discretion. The evidence

presented constitutes a prima facie showing that the services of Mr. Doe and Ms.

Roe were used both to effectuate the crime or fraud and to conceal it. Thus, the


                                         -15-
crime-fraud exception vitiates the limited attorney-client privilege between

Intervenor and Roe and Doe. 3



                    III. Scope of the Crime-Fraud Exception

      Intervenor asserts that even if the exception does apply, the district court’s

application of the exception lacked specificity and was overly broad. The court

held that because the exception applies, Roe and Doe could not “avoid testifying

as to any act, communication, document or other matter concerning the

relationships and agreements (whether formal or informal, written or unwritten,

executed or proposed) between [The Hospital and the doctors, two of their

companies, its officers or employees] during the time period September 1, 1984

through 1994.” Appellant’s App. Vol. II at 226-27.

      Intervenor argues that the time period defined by the court is arbitrary and

covers too great a period and that, as a result, it may include communications that

do not fall within the crime-fraud exception. Given our review of the record, we

disagree. The court properly delineated a reasonable time period and further

narrowed the focus to questions regarding the relationship at issue. Accordingly,




      3
        We by no means imply that Doe and Roe are guilty of any crimes or that they
were, in fact, culpable in any way. Indeed, no charges have been filed against them.

                                          -16-
we conclude that the court did not err in defining the scope of the crime-fraud

exception.

      Similarly, Intervenor contends that the district court’s decision to apply the

crime-fraud exception was error because it refused to review, in camera, the

government’s proposed questions to Doe and Roe. Without such a review, he

argues, the court could not have properly determined whether some of the

questions—and their answers—would fall outside the scope of the exception.

      In In re Grand Jury Proceedings (Vargas), 723 F.2d at 1467, we held that

“once the trial judge has concluded that the privilege does not apply because the

government has made such a prima facie showing, the trial court need only

conduct an in camera inspection of the documents if there is a possibility that

some of them may fall outside the scope of the exception to the privilege.” We

have not addressed whether it is appropriate for a similar “inspection” to be made

of testimony to be presented to a grand jury.

      We recognize the need to balance the confidentiality of privileged

information outside the scope of the crime-fraud exception and the conservation

of judicial resources. We have encouraged the district courts not to allow the

determination of the applicability of the crime-fraud exception to turn into mini-

trials that would waste resources and delay the grand jury proceedings. See In re

Grand Jury Proceedings (Company X), 857 F.2d at 712; In re Grand Jury


                                        -17-
Proceedings (Vargas), 723 F.2d at 1467. Accordingly, we will not require that the

district court conduct a detailed review of all questions and answers prior to their

presentation to the grand jury. Instead, district courts should define the scope of

the crime-fraud exception narrowly enough so that information outside of the

exception will not be elicited before the grand jury. However, if, before ordering

testimony in front of the grand jury, the district court, within its discretion,

believes an in camera examination of the witness or the questions to be asked of

the witness is needed to ensure the scope of the inquiry will not be too broad, it

may do so. 4 See In re Richard Roe, Inc., 68 F.3d at 41.

           At the April 7, 1997, hearing in this case, the court did hear objections to

specific questions that had been asked before the grand jury previously. The

court concluded that not only did they fall within the scope of the crime-fraud

exception, but also that much of the information sought did not even relate to

anything that could be considered privileged. Appellee’s Supplemental App. at

309-29. In addition, the court’s order makes it clear that it had, in fact, reviewed

the questions already asked of Roe and Doe. Appellant’s App. Vol. II at 226.


       4
        We recognize that in one case, the D.C. Circuit required the district court to
engage in a question-by-question determination of the scope of the crime-fraud exception
“given the nebulous distinction in this case between prior acts that remain protected by
the attorney-client privilege and prior acts forming the basis of the ongoing cover-up.” In
re Sealed Case, 754 F.2d 395, 402-03 (D.C. Cir. 1985). We believe, as the Second
Circuit did in In re Richard Roe, Inc., 68 F.3d at 41, that the narrow scope of the district
court’s order makes such a mandatory review unnecessary.

                                            -18-
      Given the court’s review of the questions and its limited definition of the

scope of the crime-fraud exception, we do not believe it abused its discretion in

failing to set forth, question by question, what could and could not be asked of

Doe and Roe. The court’s order appropriately requires Roe and Doe “to answer

the questions previously posed [before the grand jury], as well as any other

questions on those topics.” Appellant’s App. Vol. II at 227.



             IV. Rebuttal to Government’s Prima Facie Showing

      Intervenor next alleges that the district court erred because it believed it

had no discretion (1) to disclose to Intervenor the government’s ex parte, in

camera submission, and (2) to hear rebuttal evidence from Intervenor as to the

government’s prima facie showing of the crime-fraud exception.

      In In re Grand Jury Proceedings (Vargas), 723 F.2d 1461 (10th Cir. 1983),

we faced Intervenor’s present argument, minus the allegation of the district

court’s misperception of its authority. We stated as follows:

      Petitioner . . . argues that certain procedures must be followed,
      including an opportunity for the attorney and client to rebut the prima
      facie evidence and to be present at any hearing which is intended to
      establish such a prima facie foundation. Petitioner misconstrues the
      law in this circuit. As this court held in its opinion In re September
      1975 Grand Jury Term, 532 F.2d 734 (10th Cir. 1976), “[t]he
      determination of whether the government shows a prima facie
      foundation in fact for the charge which results in the subpoena lies in
      the sound discretion of the trial court.” Id. at 737. In particular,
      that determination can be made ex-parte and a “preliminary

                                        -19-
         minitrial” is not necessary. Id. at 737-38. Furthermore, the prima
         facie foundation may be made by documentary evidence or good faith
         statements by the prosecutor as to testimony already received by the
         grand jury.

In re Grand Jury Proceedings (Vargas), 723 F.2d at 1467 (emphasis added)

(citations to the record omitted). Such expedited procedures do not violate due

process. See In re Grand Jury Proceedings, Thursday Special Grand Jury, 33 F.3d

342, 352-53 (4th Cir. 1994); In re John Doe, Inc., 13 F.3d 633, 637 (2d Cir.

1994).

         This framework is grounded in the importance of a properly functioning

grand jury. As the Supreme Court has stated, “[a]ny holding that would saddle a

grand jury with minitrials and preliminary showings would assuredly impede its

investigation and frustrate the public’s interest in the fair and expeditious

administration of the criminal laws.” United States v. Dionisio, 410 U.S. 1, 17

(1973); see also In re September 1975 Grand Jury Term, 532 F.2d at 737.

Moreover, the reasons for keeping a tight lid on in camera documents containing

grand jury testimony and on evidence gathered during criminal investigations are

legion and obvious. See, e.g., In re Grand Jury 95-1, 118 F.3d 1433, 1439 (10th

Cir. 1997).

         Accordingly, the district court has the discretionary authority to do as

Intervenor requests, and we believe the court understood that authority.

Intervenor points to the February 24, 1997, hearing to show that the court did not

                                           -20-
understand it had discretionary authority. There, the district court queried, “if I

let you see the contents of [the government’s] showing, [aren’t you] just setting

this up to get me involved in having the sort of mini trial on the criminal

allegations that the courts have said I shouldn’t be involved in?” Appellant’s

App. Vol. II at 240. Unfortunately for Intervenor, the court’s question implies

that it understood it had authority, pursuant to the familiar Fed. R. Crim. P. 6(e),

to make the submission available to Intervenor. Our review of the record also

indicates that the court understood it had the authority to hear rebuttal evidence.

      The district court did not abuse its discretion in refusing to allow

Intervenor to review the contents of the government’s ex parte, in camera

submission and in refusing to hear rebuttal evidence. The court reviewed the

many briefs that had been filed and actually entertained some of counsel’s

arguments intended to rebut the government’s prima facie showing. See, e.g.,

Appellant’s App. Vol. II at 241-51. After reviewing the briefs, hearings, and the

government’s submission, we find no abuse in either the district court’s refusal to

conduct a separate rebuttal hearing or its refusal to reveal the contents of the

government’s submission.




                                         -21-
       V. Vicarious Assertion of Intervenor’s Fifth Amendment Rights

      Finally, Intervenor claims that Roe and Doe should be allowed to assert his

Fifth Amendment right against self-incrimination. We review the district court’s

denial of this claim de novo because it involves a question of standing. See

United States v. Anderson, 778 F.2d 602, 606 n.3 (10th Cir. 1985); United States

v. Skolek, 474 F.2d 582, 584 (10th Cir. 1973); see also Committee to Save the

Rio Hondo v. Lucero, 102 F.3d 445, 447 (10th Cir. 1996).

      “There is no constitutional right not to be incriminated by the testimony of

another. . . . The privilege against self-incrimination is solely for the benefit of

the witness and is purely a personal privilege of the witness, not for the protection

of other parties.” Skolek, 474 F.2d at 584. The Fifth Amendment protects

against “‘compelled self-incrimination, not (the disclosure of) private

information.’” Fisher v. United States, 425 U.S. 391, 401 (1976) (quoting United

States v. Nobles, 422 U.S. 225, 233 n.7 (1975)). Thus, a “‘party is privileged

from producing evidence but not from its production.’” Fisher, 425 U.S. at 399

(quoting Johnson v. United States, 228 U.S. 457, 458 (1913)). The relevant

question for our analysis, then, is whether the information was obtained through

compulsion, not whether the information was private.

      In certain circumstances, where an attorney is being compelled to produce

documents that his or her client could personally bar from production under the


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Fifth Amendment, “the attorney to whom they are delivered for the purpose of

obtaining legal advice should also be immune from subpoena.” Fisher, 425 U.S.

at 396. However, the instant case is different because the information sought is

the content of oral statements made by Intervenor that were not compelled. In re

Feldberg, 862 F.2d 622, 629 (7th Cir. 1988); In re Grand Jury Proceedings

(Wilson), 760 F.2d 26, 27 (1st Cir. 1985). Compulsion of the attorneys’

testimony as to voluntary statements made by the client does not, therefore,

implicate the Fifth Amendment’s protection of the client against “compulsory

self-incrimination.” Feldberg, 862 F.2d at 629. The statements might be

protected by the attorney-client privilege, but not where, as here, the crime-fraud

exception applies.

      Thus, because there is no indication that Intervenor’s statements to his

attorney were compelled and because the crime-fraud exception vitiates any

attorney-client privilege, the district court correctly ordered that Ms. Roe and Mr.

Doe could not vicariously assert Intervenor’s Fifth Amendment rights before the

grand jury.



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the district court.




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