                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-8-2005

USA v. Paz
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1156




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"USA v. Paz" (2005). 2005 Decisions. Paper 1467.
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                                                      NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                      Nos. 04-1156 & 04-1809




                 UNITED STATES OF AMERICA

                                   v.

                          NICHOLAS PAZ,

                              Appellant




ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
           EASTERN DISTRICT OF PENNSYLVANIA

                   (Dist. Court No. 02-cr-00441-1)
          District Court Judge: Honorable Cynthia M. Rufe

                   (Dist. Court No. 03-cr-00629-1)
         District Court Judge: Honorable James T. Giles, C.J.


                 Submitted pursuant to LAR 34.1(a)
                         January 18, 2005

        Before: ALITO, McKEE, and SMITH, Circuit Judges.

                   (Opinion Filed: March 8, 2005)


                    OPINION OF THE COURT
PER CURIAM:

       Defendant Nicholas Paz was convicted in one criminal case for bank robbery and

in another for witness tampering. These two cases were consolidated for purposes of

appeal because Paz’s sentence in the bank robbery case was approximately 13 years

longer than it might have been had he not been convicted in the witness tampering case.

As we write for the parties only, we will not set out the facts. For the reasons set out

below, we find Paz’s claims to be without merit and affirm the two judgments.

                                              I.

       We review the District Courts’ factual findings for clear error, and we exercise

plenary review of the District Courts’ application of the law to those facts. See United

States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002) (standard for motion to suppress);

United States v. Inigo, 925 F.2d 641, 656 (3d Cir. 1991) (standard for claim of privilege);

United States v. Nolan-Cooper, 155 F.3d 221, 229 (3d Cir. 1998) (standard for motion to

dismiss indictment). We review a District Court’s evidentiary rulings for abuse of

discretion. United States v. Givan, 320 F.3d 452, 460 (3d Cir. 2003).

                                             II.

       The Sixth Amendment is “offense specific” in that it attaches only to the specific

offense that has been formally charged. Texas v. Cobb, 532 U.S. 162, 167-168 (2001).

The Sixth Amendment cannot be invoked for all future prosecutions of any offense

whatsoever, nor does it attach until a prosecution is commenced. Id. Even if an



                                              2
uncharged crime is factually related to a charged crime, if the uncharged crime is distinct,

meaning that it requires proof of some element that the other crime does not, the Sixth

Amendment will not attach. Id. at 173. For this reason the FBI did not violate Paz’s

Sixth Amendment rights when it interviewed Paz outside the presence of a defense lawyer

regarding a possible obstruction of justice. The interview occurred on February 19, 2003,

almost a month before Paz was charged with witness tampering, and Paz had not retained

a lawyer to defend him against charges of obstruction of justice or witness tampering.

       Paz’s contention that his statements on February 19, 2003, were protected by the

proffer agreement entered into on May 31, 2002, is unavailing. He terminated any

protections he had under the 2002 agreement when he knowingly and freely signed a

Miranda waiver after being advised of his Miranda rights in oral and written form — all

of which was preceded by the FBI agents’ express declaration that they had not come to

talk about the credit union robbery, but to investigate a potential obstruction of justice.

Nor can Paz argue that he did not know what he was doing when he signed the Miranda

waiver; he testified that he was familiar with Miranda warnings, that he had previously

refused to sign a Miranda waiver (when he was first arrested for robbing the Credit

Union), and that he fully understood that anything he said at the February 19, 2003,

interview could be used against him in court. Finally, the circumstances of the February

19, 2003, interview differed from Paz’s previous three proffers in ways that should have

made Paz aware his proffer agreement would not protect his statements in the February



                                              3
19, 2003, interview. All of the previous proffers took place at the William J. Green

Federal Building, but the February 19, 2003, interview took place at the Federal

Detention Center. Paz did not receive Miranda warnings at any of the previous proffers,

but on February 19, 2003, he did. Before, Paz’s counsel in the bank robbery case and the

case agent in that matter, Agent Rosselli, had always been present — but not on February

19, 2003. And two agents who had not been at the previous proffers attended the

February 19, 2003, interview.

                                            III.

       The government did not violate Pennsylvania Rule of Professional Conduct 4.2,

which concerns communications with persons represented by counsel, when agents

interviewed Paz on February 19, 2003. The purpose of that interview was to investigate a

possible obstruction of justice, and Paz was not represented by counsel for such purposes

at the time.

                                            IV.

       Paz asserts that materials from his attorney’s file were protected by the attorney-

client and work-product privileges and should not have been admitted into evidence. The

only document at issue is one page of Daniel Seal’s handwritten notes. Because Paz

attempted to use his relationship with Seal to further an ongoing crime, his statements to

Seal about, and Seal’s work-product concerning, the ongoing crime are not protected by

any privilege. See Haines v. Liggett Group, Inc., 975 F.2d 81, 95 (3d Cir. 1992)



                                             4
(attorney-client privilege is waived when client uses the attorney-client relationship to

engage in an ongoing crime or fraud or to plan a future crime or fraud); In re Impounded

Case (Law Firm), 879 F.2d 1211, 1214 (3d Cir. 1989) (crime-fraud exception also applies

to materials otherwise protected by the work-product privilege).

       To invoke the crime-fraud exception, the government must make a two-part

showing. First, the government must make a prima facie showing that reasonably suggests

the defendant was engaging or intended to engage in criminal conduct at the time of the

attorney-client communication. Second, the government must show that the attorney-

client communications were related to this continuing or intended criminal activity. See

In re Grand Jury Subpoena, 223 F.3d 213, 217 (3d Cir. 2000); see also In re Grand Jury

Subpoena, 604 F.2d 798, 803 (3d Cir. 1979) (on the issue of timing). The content of any

contested communications can be considered to determine whether the crime-fraud

exception applies. See United States v. Zolin, 491 U.S. 554, 556-557(1989).

       The evidence at trial established that Seal, at the direction of Paz, had urged

Clanton to lie to the government. The evidence showed that Seal met with Paz three

times: on July 1, 2002, August 6, 2002, and December 19, 2002. At the first meeting,

Seal presented Clanton with a note containing the signature of Paz and encouraging

Clanton “to do his part.” On or about July 9, 2002, Clanton received a letter from Paz

further encouraging him to go along with Paz’s plan to lie to the government in the hope

of obtaining a reduced sentence. Based on this evidence, the District Court did not err by



                                              5
finding that Seal’s notes of his meeting with Clanton, a portion of which was shown to

Clanton, fell under the crime-fraud exception to the attorney-client and work-product

privileges. Accordingly, the District Court was right to conclude that no privilege applied

and that the one-page document was admissible.

                                             V.

       Paz asserts that Clanton should not have been permitted to testify as to his

understanding of the phrase “do a Frank Hannon on Ligambi,” which was contained in a

letter Paz sent Clanton. Specifically, Paz asserts that Clanton’s testimony as to the

meaning of the phrase was not relevant. But relevance is not a difficult condition to

satisfy under the Federal Rules of Evidence. Under Rule 401, evidence is relevant if it

has “any tendency” to make more probable “any fact that is of consequence to the

determination of the action.” Clanton’s testimony therefore easily satisfies Rule 401. His

understanding of what the phrase meant was probative of what Paz intended to say, and

thus of whether Paz meant to persuade Clanton to lie to the government. Nor was there

any undue prejudice to Paz on this matter, as counsel for Paz was free to (and did) cross-

examine Clanton as to the accuracy of Clanton’s understanding of the phrase.

                                            VI.

       In FBI Agent Jeffrey Huber’s testimony before the second grand jury in the

witness tampering case, he did not mention any details about the July 30, 2002, proffer.

Huber testified only that, during an interview on February 19, 2003, and after a signed



                                             6
waiver of rights, Paz said he participated in a proffer regarding a drug deal with Joseph

Ligambi:

       Q:     [D]id you actually interview Nicholas Paz about six months ago?
       A:     Yes, February 19, 2003.
       Q:     And did he tell you during that interview that — at a proffer that he
              participated in, a proffer about a drug deal with Ligambi?
       A:     Yeah, he did.
       Q:     And so one of his proffers occurred on July 30[,] [2002]?
       A:     Correct.

App. 290. That Paz said such things at the February 19, 2003, interview was properly

before the grand jury in order to establish the background for the witness tampering; it

illustrates that Paz told the government his Ligambi story at a time when he was seeking

leniency from the prosecution on the bank robbery charges, and it helps establish why Paz

would want Clanton to support the Ligambi story.

       Agent Huber also testified, in response to a grand juror’s question, that Paz

participated in three proffer sessions, each with a different subject:

       GRAND JUROR: I thought I heard multiple proffers in there.
       BY MS. WOLF:
       Q:  How many proffers did Nicholas Paz participate in?
       A:  I believe there were approximately three proffers. And the reason there was
           multiple is a lot of the time they’ll have the proffer session regarding the
           bank robbery, the crime at hand that they were charged with, then there
           were other bank robbers [sic] that Nicholas Paz might not have been
           charged with but he talked about. And as well as the time they talked about
           the Joe Ligambi drug deal story, the FBI sometimes separates these in order
           of the different subjects.

App. 317.

       Once again, Agent Huber did not tell the grand jury any statements by Paz that

                                              7
were protected by a proffer agreement. The transcript does not even support the claim

that Agent Huber was attempting to sneak in any protected statements. His statement was

an on-point response to a grand juror’s question and merely explained why the multiple

proffers did not make the case unusual or especially significant. Furthermore, and

contrary to Paz’s complaint, this testimony does not amount to Huber’s telling the grand

jury that Paz “admitted to being a serial bank robber.” At all events, the government’s

multiple instructions to the grand jury that it should not focus on bank robbery, but on

witness tampering, were more than sufficient to cure whatever undue prejudice might

have resulted from Huber’s brief reference to the bank robberies.

       For the above reasons, we affirm.
