UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
CARROLL G. BERNARD, DEFENDANT-APPELLANT.
No. 88-1740.
United States Court of Appeals, Tenth Circuit.
June 7, 1989.
877 F.2d 1463 (10th Cir. 1989)
Kenneth P. Snoke, Asst. U.S. Atty. (Tony M. Graham,
U.S. Atty., and Ron Wallace, Asst. U.S. Atty., with him on the briefs)
for the Northern District of Oklahoma, Tulsa, Okl., for plaintiff-appellee.
Janet L. Cox, of Oklahoma City, Okl., for
defendant-appellant.
Appeal from the United States District Court for the
Northern District of Oklahoma.
Before SEYMOUR, BARRETT and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.
Mr. Bernard appeals the judgment entered following
his conviction of sixty-two criminal violations including: one count
of conspiracy in violation of 18 U.S.C. § 371 (1982); one count of
bank fraud in violation of 18 U.S.C. § 1344 (Supp. II 1984);and sixty
counts of making false entries as a bank officer in violation of 18
U.S.C. § 1005 (1982). The case against Mr. Bernard was tried to the
same jury which convicted co-defendants Bruce Bonnett, Katherine
Joanne Voigt, and Lester Dierksen of the same and related criminal
offenses. See United States v. Bonnett, 877 F.2d 1450 (10th
Cir. 1989); United States v. Voigt, 877 F.2d 1465 (10th Cir.
1989); and United States v. Dierksen, No. 88-1712 Order &
Judgment, filed June 7, 1989).
Mr. Bernard asserts four errors: (1) counts two
through forty-seven charging a violation of 18 U.S.C. § 1344 do not
constitute crimes under Williams v. United States, 458 U.S.
279,102 S.Ct. 3088, 73 L.Ed.2d 767 (1982); (2) the court erred in
admitting into evidence a letter written by Edward L. Moore to the
FDIC; (3) the court erred in permitting testimony of other wrongful
acts under Fed.R.Evid. 404(b); and (4) the court erred in permitting
the government to call Mr. Tom Nally, an attorney to testify regarding
conversations with Mr. Bernard. The first three issues are identical
to those raised by Mr. Bonnett in his appeal, and were adopted by Mr.
Bernard. We discussed and disposed of these three assertions of error
in Bonnett. In this opinion, we shall discuss the remaining
issue, issue no. 4. We AFFIRM.
Mr. Bernard states his fourth issue as follows:
"Where the attorney-client privilege was deemed waived, allowing the
government to call Tom Nally to testify regarding conversations with
Bernard in connection with the Jim Treat loan, under Rule501 of the
Federal Rules of Evidence, fundamental error was committed, denying
this defendant a fair trial." Mr. Bernard argues that the court erred
in ruling that the attorney-client privilege had been waived by
counsel's failure to object to the testimony of Mr. Treat. We are not
persuaded by his argument.
Counts 48 through 57 charge Mr. Bernard with making
illegal nominee loans. Two of these nominee loans were made to Mr.
Treat. At trial, the government called Mr. Treat as a witness against
the defendant. The gist of the testimony was that Mr. Treat had asked
Mr. Bernard about the legality of making a nominee loan. Mr. Treat
testified that Mr. Bernard told him that he (Mr. Bernard) had verified
the legality of such a loan with an attorney, Mr. Tom Nally.
Counsel for Mr. Bernard did not object, and did not
cross-examine the witness. Later in the trial, the court ruled that
Mr. Bernard waived his attorney-client privilege "in regard to the
loans made by Bernard to Treat" and permitted the government to call
Mr. Nally as a witness. Mr. Nally testified that Mr. Bernard was his
client. He denied even discussing the question of the legality of
nominee loans with his client.
Fed.R.Evid. 501 pertains to privileges and provides,
in part: Except as otherwise required by the Constitution of the
United States or provided by Act of Congress or in rules prescribed by
the Supreme Court pursuant to statutory authority, the privilege of a
witness, . . . shall be governed by the principles of the common law
as they may be interpreted by the courts of the United States in the
light of reason and experience.
Citing State v. Miller, 105 Wn. 475, 178 P.
459 (1919), and State v. Powell, 217 S.W. 35 (Mo. 1919), Mr.
Bernard argues that he did not waive the attorney-client privilege by
failing to object to the testimony of Mr. Treat, a non-party to the
privileged communication. He contends that the waiver of the privilege
must come from the holder, i.e., the client or the attorney, and not
through the testimony of a third party.
Mr. Bernard misperceives the nature of the trial
court's ruling. Mr. Bernard willingly sacrificed his attorney-client
confidentiality and privilege by voluntarily disclosing the
confidential communication to Mr. Treat. Any voluntary disclosure by
the client is inconsistent with the attorney-client relationship and
waives the privilege. United States v. Suarez, 820 F.2d 1158
(11th Cir.), cert. denied,___ U.S. ___, 108 S.Ct.505, 98
L.Ed.2d 503 (1987). Mr. Bernard did this in an effort to convince Mr.
Treat that the proposed nominee loan was lawful and proper. Mr.
Bernard, having revealed the purported conversation between himself
and his counsel in an effort to induce Mr. Treat to engage in a
nominee loan, cannot later claim the protection of the attorney-client
privilege. Courts need not allow the claim of attorney-client
privilege when the party claiming the privilege is attempting to
utilize the privilege in a manner that is not consistent with the
privilege.
Furthermore, Fed.R.Evid. 103 provides that error may
not be predicated upon a ruling which admits or excludes evidence
unless a substantial right is affected and a timely objection was
made. In the present case counsel fails to persuade us that a
substantial right was affected by the testimony. Therefore, we
conclude that Mr. Bernard's assertion of error is without merit.
AFFIRMED.
