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United States v. Bey

United States Court of Appeals, Seventh Circuit

December 2, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DEBORAH AHMAD BEY, Defendant-Appellant

 Argued July 8, 2014

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 CR 156-1--Sharon Johnson Coleman, Judge.

For United States of America, Plaintiff - Appellee: Ryan P. Fayhee, Attorney, Office of The United States Attorney, Chicago, IL.

For Deborah A. Ahmad Bey, Defendant - Appellant: Harvey Eugene Taylor Jr., Attorney, St. Louis, MO.

Before WOOD, Chief Judge, and BAUER and HAMILTON, Circuit Judges.

OPINION

Page 1100

Hamilton, Circuit Judge

Deborah Ahmad Bey appeals her 2010 conviction for failing to surrender to prison authorities. She contends her conviction was based on evidence of a privileged and inadmissible attorney-client communication telling her when she had been ordered to report for prison. We have not addressed this issue in a precedential opinion before. We follow our colleagues in other circuits and hold that the lawyer's communication of the defendant's surrender date was not a privileged communication. See, e.g., United States v. Gray, 876 F.2d 1411, 1415 (9th Cir. 1989); United States v. Innella, 821 F.2d 1566, 1567 (11th Cir. 1987). We therefore affirm.

Factual and Procedural Background

This appeal has its roots in Bey's 2006 conviction for making false statements in a bankruptcy proceeding. Bey received a below-guidelines sentence of three months in prison. She appealed that conviction, prompting a cross-appeal by the government. We affirmed her conviction but agreed with the government that the sentence was too low and remanded for resentencing. See United States v. Bey, 244 F.App'x 57, 59 (7th Cir. 2007). The Supreme Court granted certiorari and remanded for reconsideration in light of Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). 553 U.S. 1016, 128 S.Ct. 2089, 170 L.Ed.2d 814 (2008). We concluded that our earlier decision was not affected by Gall. United States v. Bey, 289 F.App'x 954, 955 (7th Cir. 2008), and the Supreme Court then denied certiorari. 555 U.S. 1203, 129 S.Ct. 1393, 173 L.Ed.2d 643 (2009).

When the parties returned to the district court in 2008, the court resentenced Bey to 24 months in prison. The court ordered her to self-surrender. The district judge twice changed Bey's surrender date. After the second extension in October 2008, Bey's lawyer, Kent Anderson, mailed her a one-page letter enclosing the court's order resetting her surrender date to December. When Bey did not surrender, an arrest warrant was issued. After eluding federal agents for a year, she was arrested and charged with knowingly failing to surrender to serve her sentence. See 18 U.S.C. § 3146(a)(2).

Bey moved to dismiss her indictment and to suppress evidence that attorney Anderson notified her of the December self-surrender date because, she asserted, it was a privileged communication. Judge Shadur denied the motion in a concise and persuasive order explaining that a lawyer's message telling a defendant when she must appear to comply with a court order is not protected by the attorney client privilege. The order noted that our circuit had not decided the issue but others had, citing United States v. Kinsella, 545 F.Supp.2d 148, 155-56 (D. Maine 2008), which collected applicable case law.

The parties proceeded to a bench trial before Judge Coleman. Bey appeared pro se. During the trial Bey objected to testimony from Anderson about any conversations they had and to the admission his letter to Bey in October 2008. Judge Coleman agreed with Judge Shadur on the privilege issue and overruled the objection, allowed Anderson to give limited testimony, and after redacting part of the letter admitted three sentences from it. Anderson testified that he wrote the letter on October 3, 2008 and sent it to Bey. The three admitted sentences from the letter said: " I have enclosed ...


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