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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLANDUNITED STATES OF AMERICA :: CRIMINAL NUMBERv. :: JFM-07-066SHAWN GREEN :RESPONSE TO GOVERNMENT’S MOTION TO COMPELPRODUCTION OF INFORMATION FROM DEFENSE COUNSEL
On January 21, 2009, the government served
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a subpoena on Defendant’s counselof record, Robert M. Simels, seeking a wide range of information relating to hisrepresentation of Defendant Shawn Green. The defendant’s attorney, in correspondencewith the government, explained that he could not comply with the subpoena, as drafted,without infringing on the defendant’s Sixth Amendment right to counsel, as well as theattorney-client privilege. The government responded with a Motion to Compel (Doc. #97), which seeks an Order from this court compelling the defense attorney to respond tothe subpoena. The defendant has requested that the defense attorney not comply with thesubpoena, as he insists that this will violate his right to have confidential communicationswith his attorney and that complying with the subpoena violates his Sixth Amendmentright to counsel.The government has been investigating the instant matter for more than two years,with a resultant indictment at some point (defendant has not received a copy of theoriginal indictment from the government), and a superseding indictment in March 2007.
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The subpoena was sent by certified mail to counsel’s office, and no personal delivery was attempted.
 
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The government contends that Mr. Green was a fugitive since March 2007. Threeindividuals, Yolanda Crawley, Rachel Donnegan, and David Lincoln have beenprosecuted, pleaded guilty and were sentenced in early 2008.Instead of making any showing of an “important need” for the subpoenaedinformation, the government elects to rely upon the Grand Jury’s broad right toinvestigate, asserting their belief that “during Green’s nearly two-year period as afugitive, he continued to launder proceeds of illegal activity through known co-conspirators in this case.” As two years have indeed elapsed since the last indictment, thegovernment’s assertion without more, makes their contention suspect, and furthermore, if the alleged laundering occurred with “known co-conspirators” there is an alternativesource for the information sought.Thus, this Court should reject the government’s Motion to Compel for thefollowing reasons:(1)
 
The subpoena (attached as Exhibit “A”), requires that Defense Counsel providedocumentation that would reveal information that could later be used by thegovernment to prosecute the Defendant for additional offenses, thus convertingthe attorney into a witness for the prosecution.(2)
 
Compliance with the subpoena is designed to, and would necessarily, drive awedge between the Defendant and his Counsel;(3)
 
The subpoena is being used by the government to investigate a case that hasalready been indicted;
 
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(4)
 
There are alternative means to obtain the requested information not intrusiveupon the Sixth Amendment; and(5)
 
Compliance with the subpoena would result in the production of certaininformation that is covered by the Attorney-Client privilege.(6)
 
Counsel may have a Fifth Amendment right to decline to produce thedocuments, or to insist on act-of-production immunity, because of the potentialexposure that he faces if he were to comply with the subpoena, as written.For these reasons, Defense Counsel has declined to comply with the subpoena andurges the court to deny the government’s Motion to Compel.The defendant’s right to zealous and un-conflicted representation in connectionwith the pending charges is guaranteed by the Sixth Amendment. Though thegovernment has often been successful in the past in convincing courts to enforcesubpoenas to attorneys for the production of fee information, recent trends in the UnitedStates Supreme Court and other appellate courts cast considerable doubt on the viabilityof those decisions.Once the attorney provides the information to the grand jury and the prosecutor,there is a reasonable likelihood that the government will then require the attorney tobecome a witness at trial to authenticate the documents. Obviously, if the governmentcontends (as it does in its moving papers) that fee information – including the timing thatthe fees were paid, and by whom – is relevant in the investigation and prosecution of Shawn Green, its usefulness, under this logic will not end with the grand jury, but willlater be useful and relevant in the trial of the defendant. The attorney, therefore, far from
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