For the Defense - Vol. 9, Issue 2 - 21

in camera review by the court of the seized materials in lieu of the
Filter Team.
The government did not respond to the letter. Next, the Firm
invoked the attorney-client privilege, challenged the government's
Filter Team, and requested that the court enjoin the Filter Team's
review of the seized materials. On June 28, 2019, just 10 days after
the execution of the search warrant, the Firm moved the district
court for a temporary restraining order and a preliminary injunction,
pursuant to Rule 65 of the Federal Rules of Civil Procedure, and the
return of seized property, pursuant to Rule 41(g) of the Federal Rules
of Criminal Procedure. The district court denied the Firm's requests
and found that the Firm failed to show any likelihood of irreparable
harm because filter teams can be neutral, and this Filter Team was
operating under the court's supervision. Remarkably, the Court
stated that the Firm had delayed coming to the court noting that
the Filter Team had already made substantial progress in reviewing
the seized materials.
The Fourth Circuit Protects the Privileges
The Firm filed its appeal later that day, pursuant to
28 U.S.C. § 1292(a)(1). The Fourth Circuit granted the Firm an
injunction pending appeal and directed
that the government
cease review of the files which were to be held under seal pending
appeal. The Fourth Circuit ruled that the Filter Team was improper for
several reasons, including that the Team's creation inappropriately
assigned judicial functions to the executive branch, the Filter Team
was approved in non-adversarial, ex parte proceedings prior to the
search and seizures, and the use of the Filter Team contravened
foundational principles that protect attorney-client relationships.4
The Fourth Circuit used strong language in support of the privileges
at issue. The Court noted that the attorney-client privilege is " the
oldest of the privileges for confidential communications known to the
common law " and that " lawyers are obliged to protect the attorneyclient
privilege to the maximum possible extent on behalf of their
clients. " 5
This case represented a resounding victory for the privileges that
are essential to the right to effective assistance of counsel under
the Sixth Amendment. The search, seizure, and trial of Treem sent
an alarming chill across the defense bar. Treem was acquitted at
trial, but Ravenell was convicted.9
The methods of this prosecution
forced many prosecutor-defense attorney trusted relationships into
a downward spiral. The federal prosecutors and the District Court
involved took on sharp criticisms of the overarching errors that led
to the rejection of the Filter Team processes by the Fourth Circuit
and to the acquittal of Treem.
Protection of the Privileges in the Third Circuit.
In re Search Warrant issued June 13, 2019 has been cited in
one Third Circuit case and two Pennsylvania District Court cases.
In United States v. Scarfo, the Third Circuit distinguished In re
Search Warrant issued June 13, 2019.10
One of the defendants
in Scarfo, " Pelullo, " criticized the government's procedures for
processing communications intercepted from wiretapped phones
and for reviewing potentially privileged documents seized from
his attorneys' offices.
Prior to the search and seizures containing
The Court also noted that " the attorney-client privilege
exists because " sound legal advice or advocacy serves public ends and
. . . such advice or advocacy depends upon the lawyer's being fully
informed by the client. " 6
The Court also acknowledged that, while
the " work-product doctrine does not trace as far into history as the
attorney-client privilege, it is no less important. ... [A) lawyer must be
able to " work with a certain degree of privacy, free from unnecessary
intrusion by opposing parties and their counsel. " 7
After delivering this powerful homage to the aforementioned
privileges, the Fourth Circuit found that the District Court afforded
insufficient weight to the protection that the privileges provide.
Next, the Fourth Circuit found that the District Court erroneously
authorized the executive branch, the Filter Team, to make decisions
on attorney-client privilege and the work-product doctrine rather
than reserving that role for the judicial branch. In addition, the Filter
Team protocol was contaminated by the fact that the judicial branch
went so far as to delegate judicial functions to non-lawyers on the
Filter Team, e.g., paralegals and IRS and DEA agents. The Court
noted that the Third Circuit had strongly criticized a similar protocol
and explicitly ruled that non-lawyer federal agents could not make
privilege determinations.8
potentially privileged information, the government obtained
an order permitting the government to intercept Pelullo's cell
phone communications based on the District Court's finding
that he and others were committing criminal offenses and using
communications with counsel to further these offenses a.k.a. the
crime-fraud exception. Pelullo cited In re Search Warrant issued
June 13, 2019, in his challenge to the ex parte proceeding held
in conjunction with the filter teams that were put into place.
Pelullo relied on the Fourth Circuit's analysis of separation of
powers principles and argued that the filter teams in his case were
unconstitutional because the procedures employed amounted to
an improper delegation of authority to the executive branch. The
Third Circuit disagreed, in part, because Pelullo's argument was first
raised in his post-conviction appeal, rather than during a motion
for a temporary restraining order to enjoin the use of the seized
privileged materials. With this distinction in mind, the Third Circuit
found that the Fourth Circuit's precedent was open to question due
to the differences in the procedural poster of the two cases. The
Scarfo court carefully reasoned that Pelullo did not identify any way
in which the process used to screen for attorney-client privileged
information caused him harm. The Third Circuit stated that Pelullo
had not pointed to any piece of evidence that was privileged and
was improperly provided to the prosecution. However, importantly,
the Court also said " [w]ithout reaching the question of whether
a constitutional violation occurred (and without commenting on
the advisability of the particular screening methods employed by
the government), it is clear that even if there were error, there was
no prejudice as a consequence. " Thus, the Third Circuit has not
rejected the Fourth Circuit's analysis and holding.
Currently, there are only two other cases within the Third Circuit
that have cited to In re Search Warrant issued June 13, 2019, United
States v. Perkins and United States v. Vepuri.11
Perkins makes passing
but positive mention of In re Search Warrant issued June 13, 2019
as a case that recognizes the principle that " [w]hen a dispute arises
as to whether a lawyer's communications or a lawyer's documents
are protected by the attorney-client privilege or work-product
doctrine, the resolution of that dispute is a judicial function. "
The Vepuri case cites to In re Search Warrant issued June 13, 2019
Vol. 9, Issue 2 l For The Defense 21
For the Defense - Vol. 9, Issue 2

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