United States v. Pilnick
267 F. Supp 791, 1967 U.S. Dist. LEXIS 11282 (1967)
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Rule of Law:
A defendant waives the attorney-client privilege for information voluntarily disclosed to a third party, such as a prosecutor. Furthermore, a potential defendant or 'target' of an investigation can be compelled to appear before a grand jury, where they must assert their Fifth Amendment privilege on a question-by-question basis rather than making a blanket refusal to appear.
Facts:
- Pilnick was involved in a business that sold undeveloped land in Florida during 1965 and 1966.
- While the matter was under investigation and prior to any indictment, Pilnick attended an interview with an Assistant United States Attorney.
- Pilnick was accompanied by his attorney during this interview, where he voluntarily disclosed information.
- Subsequently, the same attorney who represented Pilnick at the interview began representing two other individuals, Norman Babat and Julius Gladstein, who were involved in the same matter.
- Babat and Gladstein later cooperated with the government and testified before the grand jury.
- After being arrested, Pilnick was subpoenaed to testify before the same grand jury.
- Pilnick, through new counsel, informed the prosecutor in advance that he would assert his Fifth Amendment privilege against self-incrimination if called to appear.
Procedural Posture:
- The United States government initiated an investigation into Pilnick and others for offenses related to a Florida land sale scheme.
- A federal grand jury was convened to hear evidence in the matter.
- The grand jury returned a 57-count indictment in the U.S. District Court for the Southern District of New York, charging Pilnick and others with conspiracy, mail fraud, and wire fraud.
- Defendant Pilnick filed several pre-trial motions before the District Court, including a motion to dismiss the indictment on constitutional grounds, a motion for a change of venue, and a motion for severance.
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Issue:
Does an indictment violate a defendant's Fifth and Sixth Amendment rights when his former attorney subsequently represents cooperating witnesses, and when the defendant, as a known target of the investigation, is compelled to appear before the grand jury to assert his privilege against self-incrimination?
Opinions:
Majority - Weinfeld, District Judge
No. The indictment does not violate the defendant's Fifth and Sixth Amendment rights because any attorney-client privilege was waived when the defendant voluntarily disclosed the same information to the prosecutor, and being a target of an investigation does not excuse one from appearing before a grand jury. The court rejected Pilnick's claim that his former attorney's representation of other witnesses created a conflict of interest that violated his rights. The court reasoned that any privilege Pilnick had regarding communications with his attorney was destroyed when he voluntarily disclosed the same information to the Assistant United States Attorney. With the confidentiality gone, the privilege was waived. The court further held that being a 'potential defendant' or a 'prime target' of an investigation does not grant immunity from being subpoenaed to testify before a grand jury. The privilege against self-incrimination is not a basis to refuse to appear altogether; rather, it must be invoked in response to specific questions posed by the grand jury.
Analysis:
This case clarifies the boundaries of a defendant's pre-indictment constitutional rights, emphasizing the ease with which attorney-client privilege can be waived through voluntary disclosure to third parties. It powerfully reaffirms the broad investigative authority of the grand jury, establishing that not even a 'target' of an investigation is immune from a subpoena to appear. The decision serves as a significant precedent reinforcing that the Fifth Amendment privilege is a shield against specific incriminating questions, not a sword to strike down the grand jury process itself. This has a lasting impact on defense strategy during criminal investigations, cautioning against voluntary disclosures and confirming that targets must physically appear before the grand jury to assert their rights.
