In Re Grand Jury Subpoena to Nancy Bergeson, United States of America v. Nancy Bergeson, Michael David Casey, Intervenor-Appellee

This case concerns a prosecutor’s subpoena of a criminal defense lawyer to testify against her client before a grand jury.

Facts.

Assistant Federal Public Defender Nancy Bergeson finds herself in the odd position of appellee in this case. Her client, Michael Casey, an intervenor-appellee in this case, was indicted on drug charges involving the distribution of Ecstasy. The government subpoenaed Ms. Bergeson to testify against her client before a grand jury, and she successfully moved to quash the subpoena in the district court. The government appeals, and we affirm.

The dispute over the subpoena came about because Ms. Bergeson’s client jumped bail. The trial was originally scheduled for September 30, 2003 but was reset for October 21, 2003 on a motion to continue brought by Ms. Bergeson. Casey was not present in the courtroom for the hearing on the motion to continue the trial and failed to appear for it on the appointed day. To prove that he had knowledge of the trial date — an element of bail jumping — the government subpoenaed Ms. Bergeson in the hope that she would testify to the grand jury that she told Casey of the trial date. The district court quashed the subpoena.…