NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 20 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30199

Plaintiff-Appellee, D.C. No. 3:17-cr-05269-RJB-1 v.

BILLY JIM SWANN, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding

Submitted December 9, 2019** Seattle, Washington

Before: GRABER, BERZON, and HIGGINSON,*** Circuit Judges.

Billy Jim Swann appeals his convictions, following a bench trial, of perjury,

social security fraud, and wire fraud. He challenges the district court’s order

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Stephen A. Higginson, United States Circuit Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation. granting the government’s motion to apply the crime-fraud exception to his

communications with his attorney. He also challenges the admission of attorney

work product at his trial. For the following reasons, we affirm.

1. The district court applied the correct legal standard in granting the

government’s motion to apply the crime-fraud exception, thus allowing the

government to admit testimony and written communications from Swann’s civil

attorney. To trigger the crime-fraud exception, the government must establish that

“the client was engaged in or planning a criminal or fraudulent scheme when it

sought the advice of counsel to further the scheme.” In re Grand Jury Proceedings,

87 F.3d 377, 381 (9th Cir. 1996). Whatever the applicable standard of review, we

conclude that the district court properly applied the exception. See United States v.

Zolin, 491 U.S. 554, 572 (1989) (providing framework for applying the crime-

fraud exception); United States v. Christensen, 828 F.3d 763, 798 (9th Cir. 2015)

(explaining standards of review).

Testimony introduced on the first day of trial provided the district court with

a “good faith belief” that in camera review of attorney-client communications

might “reveal evidence to establish the claim that the crime-fraud exception

applies.” Zolin, 491 U.S. at 572. The government presented evidence that, although

he maintained steady and lucrative work as a fishing guide, Swann sought the

advice of an attorney to obtain social security disability benefits. After conducting

2 in camera review, the district court authorized the admission of two documents

demonstrating that Swann was aware of his lawyer’s filings on his behalf. Because

Swann denied that he caused the law firm to make false representations, this

evidence was relevant to the charges against him.1 See United States v. Holden,

908 F.3d 395, 399–401 (9th Cir. 2018) (providing standard for wire fraud); Fed. R.

Evid. 401. Testimony from Swann’s attorney, which was narrowly limited to

representations Swann made to the attorney about his ability to maintain

employment, was also properly admitted. In re Grand Jury Proceedings, 87 F.3d at

382–83.

The fact that Swann was tried by a judge rather than a jury does not compel

a different conclusion. See Kistmet Acquisition, LLC v. Diaz-Barba (In re

Icenhower), 755 F.3d 1130, 1141 (9th Cir. 2014) (affirming application of crime-

fraud exception during bench trial). The government bears the same burden of

proof in a bench trial and a jury trial. United States v. Overton, 573 F.3d 679, 685

(9th Cir. 2009). Moreover, it is irrelevant that the government initially argued that

the crime-fraud exception was necessary to avoid juror confusion. The exception

applies when a client uses his attorney’s services in furtherance of a crime or

fraudulent scheme. Once it is clear that the evidence is admissible, the crime-fraud

1 Swann does not challenge the government’s decision to premise his wire fraud charges on his lawyer’s filings. We express no opinion on this practice or its validity.

3 exception does not require the government to articulate a particular reason to

introduce the evidence. See In re Grand Jury Proceedings, 87 F.3d at 381.

2. Swann also has not demonstrated that the district court erred in admitting

attorney work product. Because the materials and testimony did not reveal “mental

impressions” of Swann’s attorney, the work product introduced at trial was factual

only. Thus, it was properly admitted under the crime-fraud exception, even without

a showing that Swann’s attorney “knowingly participated in any criminal activity.”

In re Grand Jury Proceedings, 867 F.2d 539, 541 (9th Cir. 1989).

AFFIRMED.

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