The order comes in a criminal case against four defendants — Newton Jones, Kateryna Jones, William Creeden, and Lawrence McManamon — who are seeking a pretrial ruling on privilege issues. The defendants had filed a motion proposing that the court balance their Sixth Amendment rights against IBB's attorney-client privilege interests, relying on cases from other district courts that have performed such balancing in advice-of-counsel defense contexts.
Judge Crabtree noted that while the defendants cited various district court cases supporting their proposed balancing test, 'no papers have addressed the Tenth Circuit precedent suggesting that the right to present a defense doesn't pierce attorney-client privilege.' The judge specifically pointed to United States v. Serrano, where the Tenth Circuit stated that 'the right to present a defense . . . does not displace traditional testimonial privileges.'
In Serrano, decided in 2005, the Tenth Circuit considered a conflict between attorney-client privilege and a criminal defendant's Sixth Amendment rights. As Judge Crabtree noted in his order, the circuit court 'rejected Mr. Valdez's argument that the right to compulsory process overrides the attorney-client privilege' and explained that 'the Sixth Amendment usually has been forced to yield when a testimonial privilege is asserted.'
The case appears to involve IBB, an entity whose attorney-client privilege the defendants acknowledge must be weighed against their constitutional rights. The defendants' original motion sought a pretrial ruling on how to balance these competing interests, but the court's order suggests this approach may conflict with established Tenth Circuit precedent.
Judge Crabtree ordered all parties, including IBB, to file supplemental briefs addressing how the Tenth Circuit cases interact with the defendants' proposed balancing test. The briefs are limited to ten pages and must be filed by April 15, 2026.
The order allows each defendant to file individual briefs or join with other defendants' submissions, requiring any joint brief to clearly identify which defendants it represents. The court's directive suggests the Tenth Circuit precedent may present a significant obstacle to the defendants' privilege arguments.