The Tenth Circuit Court of Appeals issued its opinion in United States v. Merida on Tuesday, July 12, 2016.
Jason Merida was the executive director of construction for the Choctaw Nation. After an investigation revealed he had engaged in several acts of fraud to the detriment of the Nation, he was charged with several counts related to embezzlement, conspiracy, and failing to report income on his tax returns. Prior to trial, Choctaw’s attorney interviewed Merida. At the beginning of the interview, the attorney informed Merida that he was the attorney for the Nation and the interview was covered by the attorney-client privilege.
The Nation allowed portions of the interview to be used at trial to impeach Merida. When the impeachment testimony was admitted, Merida’s counsel objected and requested a bench conference. He moved for a mistrial, arguing the transcript was protected by the attorney-client privilege because the Nation’s attorneys were acting as Merida’s attorneys during the interview. The district court denied the motion, finding that any privilege belonged to the Tribe. The trial proceeded. After several hours of jury deliberations, the jury delivered to the court a note stating, “We can’t agree on a single count. What are your directions?” The court provided a modified Allen instruction and suggested that they adjourn for the evening and reconvene in the morning. The jury requested to be allowed to vote before adjourning, and quickly returned verdicts of guilty on six counts and not guilty on one count. Merida was sentenced accordingly and appealed, contesting only the court’s denial of his motion for mistrial.
The Tenth Circuit found no error in the district court’s determination that any privilege belonged to the Nation, and further found that its precedent required that determination. The Circuit noted that the Nation’s attorney did not aver that he was Merida’s attorney, but rather said that he was representing the Nation and any conversation was covered by the attorney-client privilege. Merida argued he reasonably believed the attorney was working for him, but the Circuit disagreed, noting that the privilege only applies where the client has sought out the attorney’s services. Since Merida was summoned by the Nation and had not requested the attorney’s services, the privilege did not apply to him.
The Tenth Circuit further evaluated any error that may have been caused, and determined it was harmless beyond a reasonable doubt. The evidence of Merida’s guilt was overwhelming, whereas the questioning that provoked Merida’s motion for a mistrial was only a few pages of the 5,000 page transcript. Merida also argues that it was a “close case” based on the jury’s note that it could not agree on a single count, but the Tenth Circuit found that the circumstances of the case strongly supported a reading that the jury had agreed on six of the seven counts but could not agree on the seventh—a “single” count.
The Tenth Circuit affirmed the district court’s denial of a mistrial because the attorney-client privilege belonged to the Nation. Judge Lucero wrote a separate concurrence to emphasize that Merida could not have subjectively believed the attorney-client privilege to apply to him.