United States v. Franklyn G. Perry

I Sixth Amendment Right to Counsel

Part One of this appeal presents the troublesome question whether the post-indictment service of a grand jury subpoena on a target’s counsel constitutes a per se violation of the Sixth Amendment. Although we do not condone such conduct, we are constrained by Supreme Court and Ninth Circuit precedent to hold that the per se rule of prejudice is inapplicable on these facts.

A.

The government’s apparently increasing use of grand jury subpoenas on a target’s counsel, both pre- and post-indictment, has been the subject of much comment in the last few years. The practice has been almost universally criticized by courts, commentators and the defense bar because it is viewed as a tool of prosecutorial abuse and as an unethical tactical device US Attorneys employ to go on a “fishing expedition” with legal counsel without first pursuing alternative avenues to get the information. Many feel, and with some justification, that whatever benefit the government derives from this practice comes at the direct expense of the attorney-client relationship. Among the perceived costs, for example, are the potential loss of a client’s choice of counsel should the…