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Keywords

defendantattorneyappealtrialtestimonymotioncorporationgrand juryprivileged communicationattorney-client privilege
defendantattorneyappealtrialmotioncorporationattorney-client privilege

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U.S. v. Plache, 913 F.2d 1375, 31 Fed. R. Evid. Serv. 247

Facts

The case arose from the defendants' roles in the ELMAS Trading Program from 1982 to 1985, which the government alleged was a Ponzi scheme. Attarian was a director and principal of the ELMAS Trading Corporation, while Plache was a member of its Advisory Council and a leading salesman. The indictment charged them with multiple counts of mail fraud and selling unregistered securities, with significant investments made by approximately 5,500 individuals totaling over $75 million before the program went into receivership in April 1985.

This action arose over the defendants' roles during 1982–85 in an arbitrage trading investment plan called ELMAS Trading Program, which the Government contends was a Ponzi scheme. Attarian was a director and one of the principals of the ELMAS Trading Corporation, and Plache was a member of its Advisory Council and the most successful salesman of the ELMAS Program.

Issue

The main legal issues included whether the trial court erred in denying the defendants' motions to exclude a juror for cause due to presumed bias, whether Plache waived attorney-client privilege, and whether the evidence was sufficient to support the convictions.

1 Plache and Attarian challenge the trial court's denial of their motions to exclude alternate juror Sherrill Coleman (“Coleman”) for cause in this mail fraud case as a result of her employment as a letter carrier with the Postal Service. They also appeal the denial of their motions for a new trial on this same ground.

Rule

The court applied the principle that a juror's implied bias must be shown to warrant exclusion, and that attorney-client privilege can be waived through voluntary disclosure. The sufficiency of evidence for mail fraud requires proof of specific intent to defraud.

The attorney-client privilege is strictly construed. Weil v. Investment/Indicators, Research & Management, Inc., 647 F.2d 18, 24 (9th Cir.1981). The privilege may be waived by voluntary disclosure.

Analysis

The court found that the trial court did not abuse its discretion in denying the motions to exclude the juror, as there was no actual bias demonstrated. The court also determined that Plache had waived his attorney-client privilege by disclosing privileged communications during his grand jury testimony. Furthermore, the evidence presented was sufficient to establish that Plache had the specific intent to defraud investors in the ELMAS Program.

The district court did not abuse its discretion in denying the motions to excuse for cause or for a new trial. The potential for substantial emotional involvement, identified in other cases finding an implied bias, has not been shown here. In the absence of any persuasive additional factors, Coleman's employment status alone does not warrant a finding of implied bias.

Conclusion

The Court of Appeals affirmed the convictions of Plache and Attarian, concluding that the trial court's decisions were within its discretion and that the evidence supported the convictions.

AFFIRMED.

Who won?

The United States prevailed in the case, as the Court of Appeals upheld the convictions of Plache and Attarian, finding no errors in the trial court's rulings.

The United States prevailed in the case, as the Court of Appeals upheld the convictions of Plache and Attarian, finding no errors in the trial court's rulings.

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