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A federal judge has ordered a criminal defense lawyer to testify against one of his former clients at an upcoming trial after finding that the woman waived her right to attorney-client privilege by testifying at her first trial — which ended with a hung jury — that she never had any conversations about certain issues with the lawyer. In his 10-page opinion in United States v. Pinho, U.S. District Judge R. Barclay Surrick of the Eastern District of Pennsylvania found that Maria Pinho waived her attorney-client privilege when she was on trial for obstruction of justice and admitted in her testimony that she had fabricated documents while working for BEF Inc., but denied knowing that the company intended to submit the documents to a grand jury, and said she had never talked with her lawyer about any grand jury subpoena for the documents. Surrick found that the 3rd U.S. Circuit Court of Appeals has never addressed the question of whether a client waives the attorney-client privilege by testifying that she did not have a conversation with her attorney about a specific subject. But the 4th Circuit did tackle the issue, Surrick found, in a case that was factually similar to Pinho’s, and held that the privilege is waived if the client agrees to answer a question about communications with her lawyer by denying that any such conversation occurred. Surrick found that the 4th Circuit’s holding in Hawkins v. Stables was correct because the client could have invoked the privilege and refused to answer the question at all. As a result, Surrick ruled that prosecutors can call attorney Thomas Suddath as a witness in Pinho’s second trial to question him about whether he ever had discussions with her about a grand jury subpoena and documents that would be submitted to the grand jury. According to the indictment, BEF, which is based in Allentown, Pa., is in the business of refurbishing and selling used 24-hour photo developing machines. The company came under scrutiny by the U.S. Customs Service because many of its clients are foreign and it was therefore required to file SED forms (shipper’s export declaration forms). Pinho appeared before the grand jury in April 2002 and testified that BEF at times prepared “customs invoices” for international customers that understated the price of BEF’s products so that the customers could pay lower import duties to their respective governments. The indictment alleged that, one month after her grand jury testimony, Pinho fabricated documents that “accounted for the difference in price between the real and ‘customs’ invoices, and were intended by defendant Pinho to attribute the discrepancy to a legitimate business purpose.” Soon after the fabricated documents were created, the indictment alleged, Pinho submitted them to the grand jury. At her first trial, Pinho testified that a few weeks after she appeared at the grand jury, someone from BEF told her to fabricate invoices. She also testified that she did as she was told because she felt it was her job. At the time, Pinho testified that she did not know a subpoena had been issued or that the fabricated invoices were being prepared to be submitted to the grand jury. Although she said that she knew the documents were going to the lawyers, she also said she did not understand why the lawyers needed them, and she did not ask. Under questioning by her own lawyer, Robert Donatoni, Pinho testified specifically that she never had any contact with Suddath about the grand jury subpoena for the documents. “Did you call Tom Suddath?” Donatoni asked. When Pinho said she had not, Donatoni asked “Why not?” “Because at the time I didn’t think I did anything wrong; I just did what I was told,” Pinho said. After the jury in Pinho’s first trial declared that it was unable to reach a verdict, Assistant U.S. Attorney Christopher Hall filed a motion asking for permission to call Suddath as a witness in the second trial. In his motion, Hall argued that “Pinho waived her right to assert any privilege with respect to communications with Mr. Suddath. She voluntarily testified concerning the nature of those communications at her first trial. She cannot now claim they are confidential.” In response, Donatoni argued that Pinho had never truly waived the privilege because her trial testimony “is absolutely devoid of the substance of any communications between Mr. Suddath and her.” Donatoni argued that Hall’s motion was an “extraordinary attempt to invade the attorney-client privilege on the eve of re-trial.” He also complained that Hall’s motion was filed nearly two months after the first trial concluded. “If a waiver occurred, which is expressly denied, one wonders why the government did not seize upon it during the first trial,” Donatoni wrote. But Surrick found that the law was on Hall’s side. “If defendant was telling the truth and no conversations occurred, she would have nothing to claim privilege over because one cannot claim attorney-client privilege if no communication occurred,” Surrick wrote. “However, assuming that a conversation did occur, defendant’s denial of the conversation included enough substantive information about her communications with her attorney to constitute a waiver of her attorney-client privilege on that subject,” Surrick wrote. When Pinho testified that none of her conversations with Suddath included any discussions about the grand jury subpoena, Surrick said, “she was, in fact, testifying to the content of all conversations that she had with her attorney regarding the specific subject.” Surrick found that Pinho had repeatedly testified that Suddath never contacted her about the grand jury subpoena and that they had never discussed it. “It was defendant who purposefully injected this lack of communication with counsel into the first trial. It would make little sense to now permit her to assert attorney-client privilege with regard to this subject,” Surrick wrote. As a result, Surrick concluded that the government has the right to call Suddath as a witness because his testimony could impeach Pinho’s original testimony. “Assuming that [Suddath] would testify that he told [Pinho] about the subpoena or that the documents were going to be submitted to the grand jury, those statements would directly contradict the factual assertions that Defendant made in her direct examination about the contents of her communications with her attorney,” Surrick wrote. But Surrick emphasized that his ruling had a narrow scope. “We will not permit the government to use this waiver as a fishing expedition into all of defendant’s confidential communications with her attorney during their relationship,” Surrick wrote. In his order, Surrick ruled that the government “is permitted to question defendant’s former attorney, Tom Suddath, on any and all communications that he had with defendant concerning whether a grand jury subpoena had issued and concerning whether the documents fabricated by defendant were to be submitted to the grand jury.”

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