Case Document 40 Filed 01/21/15 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION UNITED STATES OF AMERICA v. CRIMINAL NO. 14-00291-CG KIMBERLY SMITH HASTIE and RAMONA MCARDLE YEAGER MOTION FOR RULING ON ADMISSIBILITY OF EVIDENCE Comes now the United States, by and through the United States Attorney for the Southern District of Alabama, and ?les this motion requesting that the Court rule that a defense attorney?s legal opinion be deemed admissible evidence were it offered by the United States against Hastie at trial. Hastie allegedly arranged for payment of a lobbying ?rm, Strategy, Inc., with money from a segregated account known as the $1.25 account held at the License Commission (Doc. 1, ?ll?ll 23-25). Such payment was allegedly in violation of Alabama law. On July 16, 2014, the FBI executed a search warrant at the License Commission. On July 17, 2014, the FBI interviewed Jonathan Gray, a consultant who received a payment drawn from the License Commission?s $1.25 account for his services to Hastie. Mr. Gray returned the payment to the License Commission days after being interviewed by the FBI. On August 5, 2014, one of Hastie?s lawyers, Buzz Jordan, provided her a legal opinion concerning the payment. (Exhibit A). Addressed to Hastie, the letter says in relevant part that ?Strategy, Inc. was not eligible to be paid from the $1.25 account.? 15L Mr. Jordan represented Hastie at the time he rendered the Opinion. In the letter, Mr. Jordan courtesy copied certain Case Document 40 Filed 01/21/15 Page 2 of 6 individuals he did not represent, one of whom subsequently provided a copy of the letter to the United States. The United States seeks to introduce the letter at trial as evidence of Hastie?s criminal conduct.1 Discussion A. Mr. Jordan?s letter is not protected by the attorney-client privilege ?The attorney-client privilege exists to protect con?dential communications between client and lawyer made for the purpose of securing legal In re Grand Jurv Subpoena of Slaughter, 694 F.2d 1258, 1260 (11th Cir. 1982). The privilege belongs to the client, not the attorney. United States v. Noriega, 917 F.2d 1543, 1551 (11th Cir. 1990). The privilege is not absolute. 1; An attorney-client communication will be protected by the privilege only if the communication is: intended to remain con?dential a_nd (2) under the circumstances was reasonably expected and understood to be con?dential.? 1g, (quoting United States v. Bell, 776 F.2d 965, 971 (11th Cir. 1985) (emphasis in original?; @3153 UM States V. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991) (?The party invoking the attorney? client privilege has the burden of proving that an attorney-client relationship existed and that the particular communications were con?dential?). If disclosed to third parties, attorney-client are not con?dential and are not protected by the attorney-client privilege. United States v. Suarez, 820 F.2d. 1158, 1160 (11th Cir. 1987) the point where attorney- client communications are no longer con?dential, where there has been a disclosure of a privileged communication, there is no justi?cation for retaining the privilege?). 1 The letter and the issues surrounding the $1.25 account primarily concern Hastie, not Yeager. While Yeager did share signature authority over the account, the indictment?s allegations regarding the $1.25 account are directed towards Hastie. 2 Case Document 40 Filed 01/21/15 Page 3 of 6 Rule 502(b) of the Federal Rules of Evidence explains when disclosures of communications are not waivers of the attorney-client privilege: When made in a federal proceeding or to a federal of?ce or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder took reasonable steps to rectify the error. Fed.R.Evid. 502(b). Mr. Jordan?s letter to Hastie is not protected by the attomey-client privilege. In the letter, he courtesy copied several individuals who were not his clients. Thus, the letter was neither ?intended to remain con?dentia nor was ?reasonably expected and understood to be con?dentia Bell, 776 F.2d at 971. Mr. Jordan?s letter was intended as a non?con?dential communication. The situation was not one where the communication was initially con?dential and then became non-con?dential through an unauthorized disclosure. Rather, the letter authorizes (in plain View to Hastie) a disclosure to third parties, one of which later provided a copy of the letter to the United States. Whether Hastie knowingly waived her attorney-client privilege with Mr. Jordan is a non?issue, since the letter itself was never protected by the privilege. Hastie may not assert a privilege over a communication that was not, and cannot, be protected by the attorney-client privilege. No privilege was lost or waived, since no privilege ever existed with respect to the letter. FRE 502(b) does not apply to Mr. Jordan?s letter. His disclosure of the letter to third parties was not inadvertent, as he courtesy cepied non-clients in the letter. Furthermore, to the United States? knowledge, Hastie took no steps to prevent the disclosure or correct any perceived Case Document 40 Filed 01/21/15 Page 4 of 6 B. The letter is admissible as a non-hearsay statement per FRE 801(d)(2) FRE 801(d)(2) outlines when a statement against an opposing party is not hearsay: (2) An Opposing Party's Statement. The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the party?s agent or employee on a matter within the scope of that relationship and while it existed; or (E) was made by the party's. coconspirator during and in furtherance of the conspiracy. The statement must be considered but does not by itself establish the declarant's authority under the existence or scope of the relationship under or the existence of the conspiracy or participation in it under (E). Fed.R.Evid. 801(d)(2). The Eleventh Circuit permits the admission into evidence of statements made by attorneys in a representational capacity. Hanson v. Waller, 888 F.2d 806, 814 (11th Cir. 1989) (letter from plaintiffs attorney to defense attorney was properly admitted as an admission of a party opponent). Other circuits have ruled similarly. See. United States mMargiotta, 662 F.2d 131, 142 (2d Cir. 1981) (?Statements made by an attorney concerning a matter within his employment may be admissible against the party retaining the attorney?); United States v. McKeon, 738 F.2d'26, 30 (2d Cir. 1984); United States v. Amato, 356 F.3d 216 (2d Cir. 2004) (former attorney's letter was admissible against defendant under hearsay exception for statements of agent in course of representation); Purgess v. Sharrock. 33 .3d 134 (2d Cir. 1994) (statement made by defense lawyer was properly admitted as admission of a party, where defense lawyer made statement in a legal brief while acting in authorized capacity); United States V. Martin, 773 F.2d 579 (4th Cir. 1985) (statements made by attorney to government agent that his client had unreported income was admissible where statement was made by attorney during course of his Case Document 40 Filed 01/21/15 Page 5 of 6 representation of client); United States v. Oiala, 544 F.2d 940, 946 (8th Cir. 1976); Williams v. Union Carbide Co., 790 .2d 552, 555?56 (6th Cir. 1986). Mr. Jordan?s letter is a non-hearsay statement made in the course of his legal representation of Hastie that falls within the FRE 801(d)(2)(C) exclusion. C. The United States intends to use the letter as evidence of Hastie?s criminal conduct. The United States seeks to use Mr. Jordan?s letter at trial as non-hearsay evidence of Hastie?s criminal conduct. The United States will offer the letter for the truth of the matter asserted, namely, that ?Strategy, Inc. was not eligible to be paid from the $1.25 account? and that Strategy, Inc. did in fact ?reimburse the Mobile County License Commissioner?s $1.25 account.? (Exhibit A). The letter is relevant because it tends to make a fact of consequence (whether Hastie impermissiny withdrew and spent funds from a segregated account) more probable. The letter is not barred by FRE 403 or any other rule of evidence. The United States plans on introducing the letter through any witness who has personal knowledge of the letter per FRE 602 and FRE 901. Such a witness may be any person courtesy copied in the letter, provided he or she received and reviewed the letter. Conclusion For the aforementioned reasons, the United States requests that the Court hold that Mr. ordan?s letter is admissible evidence were it offered at trial. Respectfully submitted on January 21, 2015. KENYEN R. BROWN UNITED STATES ATTORNEY By: GREGORY A. BORDENKIRCHER Gregory A. Bordenkircher (BORDG3301) Assistant United States Attorney United States Attorney?s Of?ce Case Document 40 Filed 01/21/15 Page 6 of 6 63 South Royal Street, Suite 600 Mobile, Alabama 36602 Telephone: (251) 441-5 845 By: SINAN KALA OGLU Sinan Kalayoglu (kala39469) Assistant United States Attorney United States Attorney?s Of?ce 63 South Royal Street, Suite 600 Mobile, Alabama 36602 Telephone: (251) 441-5845 CERTIFICATE OF SERVICE I hereby certify that on January 21, 2015, I electronically ?led the foregoing with the Clerk of Court using the system which will send noti?cation of such ?ling to counsel of record for the defendants. GREGOR A. BORDENKIRCHER Gregory A. Bordenkircher Assistant United States Attorney SINAN KALA OGLU Sinan Kalayoglu Assistant United States Attorney Case Document 40-1 Filed 01/21/15 Page 1 of 1 BUZZ JORDAM RC. Attorney at Law ?anphin Street Teiephoae: (251) Mahiie, Alabama 36694 Facsimiie: (251) 4326445 Post Of?ce 39:: 210 Moh?n Mabama 3&661 Augus: 5, 2014 Mrs. Kim Hamie Mobile License- Ccmmissioner PO Bax 161009 Mnhiie, All. 36616 Dear Mm. I-Iastie: 11pm review of'tht: $1.25 Act, it is my iegal opinion that Strategy? Inc, was mi aligibie to be paid the $1.25 acmunt for the services Strategy, Inc, provided at the request (If the Mobiie County License Commissioner?s of?ce to attempt to combine the Mnbilc County License (Sornmissianer?s of?ce with the Mobile County Revenue Commissioner?s: times. in an cz??m to save Mobile County money their combination I have discussed, this matter with Strategy, Inc. and it. has agreed to reimburse the Mobile County License Cnmmissioner?s $1.25 accaunt far the amaum that his company was paid far said services. If you have any questions regarding this amnion picase cm?act me- gmrsona?y. Very ?1 Mf- . 13{if Bif'z?? Jag/?1; CC: Mr. Jay Ross, Esq. 9? Mehiie County Attorney Mr. Tyler Michal; Esq. MO-bii? Caumy License Commissiener Attorney Mr. John Gray, Strategy Inc. Mn Neil Niamey, Esq. 002725