United States v. Harlan Alexander Blackburn, 446 F.2d 1089 (5th Cir. 1971). · Go Syfert
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United States v. Harlan Alexander Blackburn, 446 F.2d 1089 (5th Cir. 1971). Cases Citing This Book View Copy Cite
“the communications between defendant and were not privileged, since third persons were present at the time the communications were made.”
52 citation events (3 in the last 25 years) across 26 distinct courts.
Strongest positive: OIL, LLC v. Stamax Corp. (fladistctapp, 2017-06-21)
Treatment trajectory · 1972 → 2026 · click a year to view as-of
1972 1999 2026
Top citers, strongest first. 25 distinct citers.
discussed Cited as authority (verbatim quote) OIL, LLC v. Stamax Corp.
Fla. Dist. Ct. App. · 2017 · signal: see also · quote attribution · 1 verbatim quote · confidence high
the communications between defendant and were not privileged, since third persons were present at the time the communications were made.
discussed Cited as authority (rule) United States v. Ramos
W.D. Tex. · 2006 · confidence medium
Brito, 136 F.3d at 414 ; Straach, 987 F.2d at 241-42 ; United States v. Marrero 904 F.2d 251, 261 (5th Cir.1990); United States v. Vincent, 648 F.2d 1046, 1049-50 (5th Cir.1981); United States v. Blackburn, 446 F.2d 1089, 1090-91 (5th Cir.1971).
cited Cited as authority (rule) United States v. Daniel Lynn Montgomery
9th Cir. · 1993 · confidence medium
United States v. Gann, 732 F.2d 714, 723 (9th Cir.), cert. denied, 469 U.S. 1034 (1984); United States v. Blackburn, 446 F.2d 1089, 1091 (5th Cir.1971), cert. denied, 404 U.S. 1017 (1972).
discussed Cited as authority (rule) United States v. James Norton, United States of America v. Paul Fosco, James Pinckard, Paul A. Di Franco, James Norton, Defendants
11th Cir. · 1989 · confidence medium
United States v. Casamayor, 837 F.2d 1509, 1515 (11th Cir.1988), cert. denied sub nom., Barker v. United States, — U.S. -, 109 S.Ct. 813 , 102 L.Ed.2d 803 (1989); United States v. Blackburn, 446 F.2d 1089, 1090-91 (5th Cir.1971), cert. denied, 404 U.S. 1017 , 92 S.Ct. 679 , 30 L.Ed.2d 665 (1972).
discussed Cited as authority (rule) United States v. Richard Suarez
11th Cir. · 1987 · confidence medium
For that, reason, it has long been held that once waived, the attorney-client privilege cannot be reasserted. 3 See, e.g., United States v. Blackburn, 446 F.2d 1089, 1091 (5th Cir. 1971), cert. denied, 404 U.S. 1017 , 92 S.Ct. 679 , 30 L.Ed.2d 665 (1972); Drimmer v. Appleton, 628 F.Supp. 1249 (S.D.N.Y.1986); United States v. Krasnov, 143 F.Supp. 184, 190-91 (E.D.Penn.1956), aff'd, 355 U.S. 5 , 78 S.Ct. 38 , 2 L.Ed.2d 22 (1957); Hamilton v. Hamilton Steel Corp., 409 So.2d 1111 , 1114 (Fla. 4 D.C.A.1982); 8 Wigmore, Evidence § 2328 at 638 (McNaughton rev. 1961) (“A waiver at one stage of a tr…
discussed Cited as authority (rule) United States v. Zolp
D.N.J. · 1987 · confidence medium
See, e.g., United States v. Gann, 732 F.2d 714, 723 (9th Cir.), cert. denied, 469 U.S. 1034 , 105 S.Ct. 505 , 83 L.Ed.2d 397 (1984) (“Because [appellant] knew, or should have known that third parties were present, his attorney-client privilege claim must fail____ [Appellant] cannot show that his conversation with his attorney was made in confidence.”); United States v. Blackburn, 446 F.2d 1089, 1091 (5th Cir.1971), cert. denied, 404 U.S. 1017 , 92 S.Ct. 679 , 30 L.Ed.2d 665 (1972) (“The communications between defendant and [his attorney] were not privileged, since third persons were pres…
discussed Cited as authority (rule) United States v. Kimberlin
S.D. Ind. · 1981 · confidence medium
Mattox, supra; U. S. v. Shahane, 517 F.2d 1173, 1178-79 (8th Cir. 1975), cert. denied, 423 U.S. 893 , 96 S.Ct. 191 , 46 L.Ed.2d 124 ; U. S. v. Blackburn, 446 F.2d 1089, 1091 (5th Cir. 1971), cert. denied, 404 U.S. 1017 , 92 S.Ct. 679 , 30 L.Ed.2d 665 .
cited Cited as authority (rule) In re LTV Securities Litigation
N.D. Tex. · 1981 · confidence medium
United States v. Pipkins, 528 F.2d 559, 563 (5th Cir. 1976); United States v. Blackburn, 446 F.2d 1089, 1091 (5th Cir. 1971) cert. denied 404 U.S. 1017 , 92 S.Ct. 679 , 30 L.Ed.2d 665 (1972).
discussed Cited as authority (rule) United States v. Frank D'angelo, Richard Delcazal and Wade A. Freman
5th Cir. · 1979 · confidence medium
E. g., McDonald v. Pless, 238 U.S. 264 , 35 S.Ct. 783 , 59 L.Ed. 1300 (1915); United States v. Blackburn, 446 F.2d 1089, 1091 (5th Cir. 1971); Dickinson v. United States, 421 F.2d 630, 632 (5th Cir. 1970).
discussed Cited as authority (rule) Sellars v. United States (2×)
D.C. · 1979 · confidence medium
Thus, jurors cannot impeach their decisions on the ground that they had agreed to a compromise verdict, see, e. g., United States v. Green, 523 F.2d 229 (2d Cir. 1975), cert. denied, 425 U.S. 950 , 96 S.Ct. 858 , 47 L.Ed.2d 84 (1976); United States v. Johnson, 495 F.2d 1097, 1103 (5th Cir. 1974); that they had bargained to acquit some defendants in order to reach unanimity in convicting others, Hyde v. United States, supra, at 382-84; United States v. Dye, 508 F.2d 1226, 1233 (6th Cir. 1974), cert. denied, 420 U.S. 974 , 95 S.Ct. 1395 , 43 L.Ed.2d 653 (1975); that they had agreed to abide by m…
discussed Cited as authority (rule) United States v. Jesse Ray Pipkins
5th Cir. · 1976 · confidence medium
Co., 359 F.2d 842, 844 (3d Cir. 1966); Colton v. United States, 306 F.2d 633, 638 (2d Cir. 1962), cert. denied, 371 U.S. 951 , 83 S.Ct. 505 , 9 L.Ed.2d 499 (1963), or to communications made in the presence of third parties, United States v. Blackburn, 446 F.2d 1089, 1091 (5th Cir. 1971), cert. denied, 404 U.S. 1017 , 92 S.Ct. 679 , 30 L.Ed.2d 665 (1972); Burlington Industries v. Exxon Corp., supra, 65 F.R.D. at 37; Cafritz v. Koslow, 83 U.S.App.D.C. 212 , 167 F.2d 749, 751 (1948).
discussed Cited as authority (rule) Hearn v. Rhay
E.D. Wash. · 1975 · confidence medium
Leathers v. United States, 250 F.2d 159, 165-166 (9th Cir. 1957); Himmelfarb v. United States, 175 F.2d 924, 938-939 (9th Cir. 1949), cert. denied 388 U.S. 860 , 70 S.Ct. 103 , 94 L.Ed. 527 (1949) ; McCormick, § 95 at 189-191; 8 Wigmore § 2311 at 599-603; see also, United States v. Simpson, 154 U.S.App.D.C. 350 , 475 F.2d 934, 936 (1973), cert. denied 414 U.S. 873 , 94 S.Ct. 140 , 38 L.Ed.2d 91 (1973); United States v. Blackburn, 446 F.2d 1089, 1091 (5th Cir. 1971), cert. denied 404 U.S. 1017 , 92 S. Ct. 679 , 30 L.Ed.2d 665 (1972); Wilcoxon v. United States, 231 F.2d 384, 385-386 (10th Cir.…
discussed Cited as authority (rule) United States v. Noble C. Beasley
5th Cir. · 1975 · confidence medium
E. g., United States v. Bell, supra, at 1235; United States v. Blackburn, 446 F.2d 1089, 1090 (5th Cir.), cert. denied, 404 U.S. 1017 , 92 S.Ct. 679 , 30 L.Ed.2d 665 (1971); Lloyd v. United States, 412 F.2d 1084, 1088 (5th Cir. 1969).
cited Cited as authority (rule) Phelps v. Commissioner
Tax Ct. · 1974 · confidence medium
See and compare United States v. Augenblick, 393 U.S. 348, 354-355 (1969); United States v. Blackburn, 446 F. 2d 1089, 1090 (C.A. 5, 1971), certiorari denied 404 U.S. 1017 (1972).
discussed Cited as authority (rule) United States v. Alvin R. Johnson
5th Cir. · 1974 · confidence medium
See Stein v. New York, 346 U.S. 156, 178 , 73 S.Ct. 1077 , 97 L.Ed.2d 1522, 1539 (1952); Hyde v. United States, 225 U.S. 347 , 383-384, 32 S.Ct. 793 , 56 L.Ed. 1114, 1132 (1912); Luna v. Beto, 474 F.2d 95 (5th Cir. 1973); United States v. Blackburn, 446 F.2d 1089, 1091 (5th Cir. 1971), cert. denied, 404 U.S. 1017 , 92 S. Ct. 679 , 30 L.Ed.2d 665 (1972); United States v. Schroeder, 433 F.2d 846, 851 (8th Cir. 1970), cert. denied, 400 U.S. 1024 , 91 S.Ct. 590 , 27 L.Ed.2d 636 (1971); United States v. Betancourt, 427 F.2d 851, 854 (5th Cir. 1970).
cited Cited as authority (rule) Government of the Virgin Islands v. Gereau
D.V.I. · 1973 · confidence medium
Cir. 1962); United States v. Blackburn, 446 F.2d 1089, 1091 (5th Cir. 1971); Klimes v. United States, 263 F.2d 273 (D.C.
discussed Cited as authority (rule) United States v. Nelson Cruz
5th Cir. · 1973 · confidence medium
This fact-finding procedure was approved by this court in United States v. Blackburn, 446 F.2d 1089, 1090 (5th Cir. 1971), *413 cert. denied, 404 U.S. 1017 , 92 S.Ct. 679 30 L.Ed.2d 665 (1972); Matthews v. United States, 407 F.2d 1371, 1376 (5th Cir. 1969), cert. denied, 398 U.S. 968 , 90 S.Ct. 2177 -2178, 26 L.Ed.2d 554 (1970). 11 .
discussed Cited "see" Brookings v. State
Fla. · 1986 · signal: see · confidence high
See United States v. Blackburn, 446 F.2d 1089 (5th Cir.1971) (waiver of the privilege when alleged privileged communication between former attorney and client was made in the presence of trial counsel and government attorneys), cert. denied, 404 U.S. 1017 , 92 S.Ct. 679 , 30 L.Ed.2d 665 (1972).
cited Cited "see" United States v. Muckenstrum
5th Cir. · 1975 · signal: see · confidence high
See United States v. Blackburn, 5 Cir., 1971, 446 F.2d 1089 ; United States v. Roberts, 5 Cir., 1972, 455 F.2d 930 .
cited Cited "see" United States v. Muckenstrum
5th Cir. · 1975 · signal: see · confidence high
See United States v. Blackburn, 5 Cir., 1971, 446 F.2d 1089 ; United States v. Roberts, 5 Cir., 1972, 455 F.2d 930 .
cited Cited "see" ca5 1975
5th Cir. · 1975 · signal: see · confidence high
See United States v. Blackburn, 5 Cir. 1971, 446 F.2d 1089 ; Dickinson v. United States, 5 Cir. 1970, 421 F.2d 630 ; Cunningham v. United States, 5 Cir. 1966, 356 F.2d 454 .
cited Cited "see" United States v. Howard
5th Cir. · 1975 · signal: see · confidence high
See United States v. Blackburn, 5 Cir. 1971, 446 F.2d 1089 ; Dickinson v. United States, 5 Cir. 1970, 421 F.2d 630 ; Cunningham v. United States, 5 Cir. 1966, 356 F.2d 454 .
cited Cited "see" United States v. Fred Louis Bell and Charles Lavern Beasley
5th Cir. · 1972 · signal: see · confidence high
See United States v. Blackburn, 446 F.2d 1089 (5th Cir. 1971); United States v. Scaglione, 446 F.2d 182 (5th Cir. 1971).
discussed Cited "see, e.g." Garza v. State
Tex. App. · 1985 · signal: see also · confidence low
For a good discussion of this general rule and its underlying policy considerations as applied by the federal courts, see U.S. v. Hockridge, 573 F.2d 752 (2nd Cir.1978), cert. denied, 439 U.S. 821 , 99 S.Ct. 85 , 58 L.Ed.2d 112 (1978); U.S. v. Grieco, 261 F.2d 414 (2nd Cir.1958), cert. denied, 359 U.S. 907 , 79 S.Ct. 582 , 3 L.Ed.2d 572 (1959); See also U.S. v. Blackburn, 446 F.2d 1089 (5th Cir.1971), cert. denied, 404 U.S. 1017 , 92 S.Ct. 679 , 30 L.Ed.2d 665 (1972).
discussed Cited "see, e.g." Edmund J. Flynn Co. v. LaVay
D.C. · 1981 · signal: see, e.g. · confidence medium
See, e. g., United States v. Blackburn, 446 F.2d 1089, 1091 (5th Cir.1971), cert. denied, 404 U.S. 1017 , 92 S.Ct. 679 , 30 L.Ed.2d 665 (1972) (“[W]hen the client and attorney themselves, for purposes beneficial to the client, lift the veil [of attorney-client privilege], they cannot lower it again”, quoting United States v. Shivley, 112 F.Supp. 734, 742 (S.D.Cal.1953)); International Paper Co. v. Fibreboard Corp., 63 F.R.D. 88, 92 (D.Del.1974) (It would be “manifestly unfair” to allow one party to make factual assertions and then deny the other party “the foundation for those assert…
UNITED STATES of America, Plaintiff-Appellee,
v.
Harlan Alexander BLACKBURN, Defendant-Appellant
30933_1.
Court of Appeals for the Fifth Circuit.
Sep 14, 1971.
446 F.2d 1089
Edward R. Kirkland, Orlando, Fla., for defendant-appellant., John L. Briggs, U. S. Atty., Bernard H. Dempsey, Jr., Ronald H. Watson, Asst. U. S. Attys., Tampa, Fla., for plaintiff-appellee.
Coleman, Goldberg, Dyer.
Cited by 48 opinions  |  Published
DYER, Circuit Judge:

Blackburn appeals from a judgment entered upon a jury conviction for knowingly and willingly using facilities of interstate commerce in the furtherance of an illegal gambling enterprise in violation of 18 U.S.C.A. § 1952. Defendant argues that the trial judge committed reversible error: (1) in ruling that certain F.B.I. investigative reports were not within the purview of the Jencks Act, 18 U.S.C.A. § 3500, thereby denying his right of access to the reports; (2) in refusing to examine into the deliberations of the jury; and (3) in requiring two witnesses to testify in spite of his claim of the attorney-client privilege.

I.

Blackburn operated a gambling enterprise in Florida consisting of illegal bookmaking and lottery activities.[*1090] The Government’s star witness, McCormick, had served the F.B.I. as a paid informer for approximately four years. During that time McCormick worked closely with defendant in the daily operations of his statewide gambling empire. At trial defendant requested all statements made by McCormick to the F.B.I. covering the entire period. The Government furnished defendant with all statements made by McCormick to F.B.I. agents which related to McCormick’s testimony on direct examination. These statements were in the form of investigative reports containing memoranda of agents’ interviews with McCormick.

The trial court conducted an extensive hearing during which it examined F.B.I. agents Hafley and Smith, informer McCormick, and the Government’s prosecuting attorney to determine whether the voluminous reports concerning the four year period could possibly have contained Jencks Act statements. Smith explained that as a matter of established F.B.I. procedure, these reports were prepared by the agent who interviewed the witness. After making notes of the conversation, the agent would return to his office and write down his version of the conversation. Finally, the report would be filed with the F.B.I.

Agent Hafley, who actually conducted the interviews with McCormick over the four years, testified in effect that he followed this established procedure in every detail in conducting interviews with McCormick. In composing the reports, Hafley stated, he never quoted McCormick directly, unless perhaps it was a particular trade term that might be used in the gambling world. Otherwise, the reports were in his words; not in the words of McCormick. Moreover, McCormick never' signed any notes, statements or reports. Hafley summarized by stating that these reports “were substantially my interpretations of the interview with Mr. McCormick and the information he had given me.” McCormick testified that he only gave verbal information to the agent, that the written reports were not his reports, and that he had never seen any of them.

The trial court refused to require production of the reports.

As we said in Matthews v. United States, 5 Cir. 1969, 407 F.2d 1371, cert. denied, 1970, 398 U.S. 968, 90 S.Ct. 2177, 26 L.Ed.2d 554:

It is the primary duty of the trial judge to determine the producibility of a statement under the Jencks Act. Scales v. United States, 367 U.S. 203, 258, 81 S.Ct. 1469, 6 L.Ed.2d 782. Although his ruling is subject to appellate review, it is sustainable unless clearly erroneous.

The trial judge is granted substantial latitude in determining producibility, including authority to interrogate either the witness or the government agent or conduct an in camera inspection.

Id. at 1376; Lloyd v. United States, 5 Cir. 1969, 412 F.2d 1084, 1088.

Our review of the record impels the conclusion that the trial court’s inquiry of the witnesses was sufficient without an in camera inspection of voluminous reports covering a four-year period, to determine that the reports were not adopted or approved by McCormick, and that, except for the reports tendered by the Government, there were none which related to the subject matter of McCormick’s testimony. The trial court’s determination concerning the producibility of the reports under the Jencks Act was not clearly erroneous. Campbell v. United States, 1963, 373 U.S. 487, 493, 83 S.Ct. 1356, 10 L.Ed.2d 501; United States v. Graves, 5 Cir. 1970, 428 F.2d 196, 200, cert. denied, 400 U.S. 960, 91 S.Ct. 360, 27 L.Ed.2d 269.

II.

After the jury returned a verdict of guilty, defense counsel moved for a new trial alleging that one of the jurors had telephoned an associate of defendant and had told her that the jury foreman had “harassed them pretty[*1091] strong.” At the post-trial hearing, the juror flatly denied this allegation. The trial judge then denied defendant’s request that the court interrogate the other jury members to determine if such pressure had actually been exerted by the foreman. Defendant’s argument that the trial court abused its discretion by refusing to inquire into the deliberations of the jury is without merit. The record is barren of any showing of juror misconduct. In any event, the jury’s verdict of guilty cannot be impeached by the fact that a juror may have been influenced by the improper remark of a fellow juror. Klimes v. United States, 1959, 105 U.S.App.D.C. 23, 263 F.2d 273. “The jury should not be exposed to post-verdict fishing expeditions into their mental processes with the hope that something will turn up.” Dickinson v. United States, 5 Cir. 1970, 421 F.2d 630, 632; see United States v. Stoppleman, 1 Cir. 1969, 406 F.2d 127, 130, cert. denied, 395 U.S. 981, 89 S.Ct. 2141, 23 L.Ed.2d 769; United States v. Grieco, 2 Cir. 1958, 261 F.2d 414, cert. denied, 359 U.S. 907, 79 S.Ct. 582, 3 L.Ed. 2d 572.

III.

Finally, defendant’s assertion— that the trial judge erred in requiring witnesses Murasko and Kelly to testify over his claim of an attorney-client privilege — requires little comment. Murasko and Kelly, both attorneys, had represented defendant in prior dealings. As to Murasko, the record clearly supports the trial judge’s ruling that defendant expressly waived the privilege in the presence of Kirkland, his trial counsel, and government attorneys at a meeting prior to trial in Kirkland’s office. “[W]hen the client and attorney themselves, for purposes beneficial to the client, lift the veil, they cannot lower it again.” United States v. Shibley, S.D.Cal.1953, 112 F.Supp. 734.

The communications between defendant and. Kelly were not privileged, since third persons were present at the time the communications were made. See Cafritz v. Koslow, 1948, 83 U.S.App.D.C. 212, 167 F.2d 749, 751.

The judgment of the District Court is affirmed.