In re Sealed Case, 162 F.3d 670 (1998) 333 U.S.App.D.C. 245, 50 Fed. R. Evid. Serv. 731 grand jury subpoenas connected with investigation of client. 162 F.3d 670 United States Court of Appeals, Cases that cite this headnote District of Columbia Circuit. IN RE: SEALED CASE [2] Federal Courts Persons Entitled to Seek Review or Nos. 98–3052, 98–3053 & 98–3059. Assert Arguments; Parties; Standing | One to whom a subpoena is directed may not Decided May 26, 1998. appeal the denial of a motion to quash that | subpoena but must either obey its commands Ordered Unsealed Dec. 1, 1998. or refuse to do so and contest the validity of Attorney moved to quash grand jury subpoenas seeking the subpoena if he is subsequently cited for documents and attorney's testimony in connection contempt on account of his failure to obey. with investigation of attorney's client and others for Cases that cite this headnote potential subornation of perjury, obstruction of justice, intimidation of witnesses, and other violations of federal law in civil case against president of the United States. The [3] Federal Courts United States District Court for the District of Columbia, Particular persons Johnson, Chief Judge, ordered attorney to comply Client could appeal from district court order with subpoenas except to the extent that compliance requiring attorney to comply with grand jury would require disclosure of materials that could not subpoenas issued in course of investigation of be revealed without violating client's Fifth Amendment client and others for potential subornation of rights. Attorney and client appealed, and government perjury, obstruction of justice, intimidation of cross-appealed. The Court of Appeals, Randolph, Circuit witnesses, and other violations of federal law Judge, held that: (1) Court lacked jurisdiction over in civil case against president of the United attorney's appeal, but had jurisdiction over client's appeal; States, which excluded only materials that (2) client's statement in civil case was “material” within could not be revealed without violating client's meaning of perjury statute; (3) government sufficiently Fifth Amendment rights; client was holder established elements of obstruction of justice by client to of attorney-client privilege, and attorney support application of crime-fraud exception to attorney- made sworn declaration that he would give client privilege; and (4) district court should have denied testimony if ordered. U.S.C.A. Const.Amend. motions in their entirety because there was no valid claim 5. of attorney-client privilege. 1 Cases that cite this headnote Affirmed in part, reversed in part, and remanded. [4] Perjury Materiality in general West Headnotes (11) A statement is “material,” under perjury statute, if it has a natural tendency to influence, or was capable of influencing, the [1] Federal Courts decision of the tribunal in making a particular Preliminary proceedings; depositions and determination. 18 U.S.C.A. § 1623(a). discovery Court of Appeals lacked jurisdiction over 2 Cases that cite this headnote attorney's appeal from district court order which denied attorney's motion to quash [5] Perjury Materiality in general © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 In re Sealed Case, 162 F.3d 670 (1998) 333 U.S.App.D.C. 245, 50 Fed. R. Evid. Serv. 731 The central object of any materiality inquiry, under perjury statute, is whether 3 Cases that cite this headnote the misrepresentation or concealment was predictably capable of affecting, that is, had [9] Grand Jury a natural tendency to affect, the official Relation of inquiry to illegally-obtained decision. 18 U.S.C.A. § 1623(a). evidence 1 Cases that cite this headnote No grand jury witness may refuse to answer questions on the ground that the questions are based on illegally obtained evidence. [6] Perjury Materiality of affidavits and statements Cases that cite this headnote therein Witness's statement in affidavit that she had [10] Witnesses not had sexual relationship with president Privilege as to production of documents of the United States, which was made in Documents transferred from the accused to connection with third party's civil action his attorney are obtainable without personal against president, was “material” to civil compulsion on the accused, and hence action within meaning of perjury statute, as the accused's Fifth Amendment privilege is witness's statements were predictably capable not violated by enforcement of subpoena of affecting decision in civil action, since directed toward his attorneys, regardless of witness filed her affidavit for that very whether the Amendment would have barred purpose. 18 U.S.C.A. § 1623(a). a subpoena directing the accused to produce 1 Cases that cite this headnote the documents while they were in his hands. U.S.C.A. Const.Amend. 5. [7] Obstructing Justice 1 Cases that cite this headnote Knowledge or intent Obstruction of justice statute is satisfied [11] Grand Jury whenever a person, with the intent to influence Privilege judicial or grand jury proceedings, takes District court should have denied in their actions having the natural and probable effect entirety motions to quash grand jury of doing so. 18 U.S.C.A. § 1503. subpoenas directed to attorney, rather than 2 Cases that cite this headnote excepting materials that could not be revealed without violating client's Fifth Amendment right against self-incrimination, absent valid [8] Grand Jury claim of attorney-client privilege. U.S.C.A. Privilege Const.Amend. 5. Government sufficiently established, through grand jury testimony and documents, 4 Cases that cite this headnote elements of obstruction of justice by witness to support application of crime-fraud exception to attorney-client privilege claimed by witness, as to materials and testimony that were *671 **246 Appeals from the United States District subject to grand jury subpoenas directed to Court for the District of Columbia (98ms00068). attorney in connection with investigation of Attorneys and Law Firms witness for her actions taken during third party's civil action against president of the Nathaniel H. Speights filed the briefs for appellant United States. 18 U.S.C.A. § 1503. Monica Lewinsky. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 In re Sealed Case, 162 F.3d 670 (1998) 333 U.S.App.D.C. 245, 50 Fed. R. Evid. Serv. 731 4. Response of the United States of America to Motion Charles J. Ogletree, Jr. filed the briefs for appellant Francis for Extension of Time to File Opposition to Motion for D. Carter, Esq. Summary Dismissal and Motion to Set Briefing Schedule (May 5, 1998); Robert J. Bittman, Deputy Independent Counsel, filed the briefs for cross-appellant the United States. *672 **247 5. Order of this Court granting motion to BEFORE: GINSBURG, RANDOLPH, and TATEL, expedite and setting briefing schedule (May 5, 1998); Circuit Judges. 6. Brief of Cross–Appellant United States (May 11, 1998); ORDER 7. Cross–Appellant's Appendix (May 11, 1998); PER CURIAM 8. Brief for Appellant Francis D. Carter, Esq. (May 11, 1998); Upon consideration of the responses of Francis D. Carter and of the United States of America, acting through the 9. Appendix for Appellant Francis D. Carter, Esq. (May Office of the Independent Counsel, to the Court's order 11, 1998); to show cause why the opinion in this case should not be unsealed, it is 10. Opening Brief of Appellant Monica Lewinsky (May 11, 1998); ORDERED, that the opinion in this case is no longer protected from public disclosure by Rule 6(e), 11. Appendix of Appellant Monica Lewinsky (May 11, FED.R.CRIM.P., in view of the public release, by the 1998); House Committee on the Judiciary, of Mr. Carter's grand jury testimony transcript, see H.R. Doc. 105–316, at 393– 12. Request for Judicial Notice by Appellant Monica 433 (Sept. 28, 1998); and it is further Lewinsky (May 11, 1998); ORDERED, that the judgment and opinion of this Court 13. Brief of Appellee United States (May 14, 1998); in In re: Sealed Case, No. 98–3052 (D.C.Cir. May 26, 1998), shall be unsealed; and it is further 14. Brief for Cross–Appellee Francis D. Carter, Esq. (May 14, 1998); ORDERED, that the order to show cause is discharged; and it is further 15. Reply Brief for Appellant Francis D. Carter, Esq. (May 15, 1998); ORDERED, pursuant to this Court's Local Rule 47.1(c), that the following materials also shall be unsealed: 16. Reply Brief of Appellant Monica Lewinsky (Lodged May 15, 1998); 1. Motion of the United States of America for Summary Dismissal of Appeal of Francis D. Carter, Esq., for Want 17. Reply Brief of Cross–Appellant United States (May of Jurisdiction (May 1, 1998); 15, 1998); 2. Motion of the United States of America to Expedite 18. Motion to Night File Reply Brief of Monica Lewinsky Consideration of the Appeal and for an Abbreviated (May 19, 1998); Briefing Schedule (May 1, 1998); 19. Order of this Court granting leave to file lodged reply 3. Motion of Francis D. Carter for Extension of Time to brief out of time (May 26, 1998); File Opposition to Motion for Summary Dismissal and Motion to Set Briefing Schedule (May 5, 1998); 20. Order of this Court to show cause why the opinion in this case should not be unsealed (Nov. 16, 1998); © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 In re Sealed Case, 162 F.3d 670 (1998) 333 U.S.App.D.C. 245, 50 Fed. R. Evid. Serv. 731 intimidated witnesses, or otherwise violated federal law ... 21. Response of the United States of America to the in dealing with witnesses, potential witnesses, attorneys, November 16, 1998 Order to Show Cause (Nov.