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[[COURTLISTENER_SUBOPINION {"id":"11209852","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
United States Court of Appeals
For the First Circuit
No. 25-1251
UNITED STATES OF AMERICA,
Appellee,
v.
SPINEFRONTIER, INC.,
Interested Party, Appellant,
ADITYA HUMAD,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Rikelman, Lipez, and Aframe,
Circuit Judges.
Robert L. Peabody, with whom Husch Blackwell LLP was on
brief, for appellant.
Karen L. Eisenstadt, Assistant United States Attorney,
with whom Leah B. Foley, United States Attorney, was on brief, for
appellee.
November 26, 2025
RIKELMAN, Circuit Judge. We must decide if an executive
impliedly waived a corporation's attorney-client privilege by
indicating his intent to invoke an "involvement-of-counsel"
defense at his criminal trial. Aditya Humad, the Chief Financial
Officer (CFO) of SpineFrontier, Inc., a medical device company,
faces criminal charges for allegedly violating the Anti-Kickback
Statute (AKS), 42 U.S.C. § 1320a-7b. The district court determined
that it would treat Humad's planned defense as effecting an implied
waiver of SpineFrontier's attorney-client privilege as to his
communications with its corporate counsel. In turn,
SpineFrontier -- which is no longer a party to the criminal
case -- filed this interlocutory appeal to preserve its privilege.
In the days leading up to and after the district court's waiver
order, the facts and procedural posture of the case shifted
substantially. As a result, we vacate the waiver order and remand
so that the district court can evaluate the parties' current claims
in light of these changed facts and the principles we describe in
this opinion.
I. BACKGROUND
SpineFrontier designs, manufactures, markets, and sells
spinal medical devices. The company was founded by Dr. Kingsley
Chin, who is also its principal shareholder, President, Chief
Executive Officer (CEO), and sole Director. Humad serves as the
- 2 -
company's CFO, Vice President of Business Development, Secretary,
and Treasurer, but he is not a shareholder. Chin and Humad are
SpineFrontier's only two officers.
On August 30, 2021, a grand jury charged SpineFrontier,
Chin, and Humad with violating numerous criminal statutes,
including the AKS. A violation of the AKS involves the "'knowing[]
and willful[]' offer or payment of 'any remuneration (including
any kickback, bribe, or rebate)' to induce a person to
'recommend . . . ordering any . . . service . . . for which payment
may be made in whole or in part under a [f]ederal health care
program.'" Guilfoile v. Shields,
913 F.3d 178, 188-89
(1st Cir.
2019) (alterations in original) (emphasis added) (quoting 42
U.S.C. § 1320a7b(b)(2)(B)).
The indictment alleged that from 2012 to 2019, the three
defendants paid surgeons millions of dollars in bribes through a
sham consulting program. The program was purportedly intended to
compensate the surgeons for their time in providing technical
feedback about SpineFrontier's products. According to the
indictment, however, the surgeons did not in fact provide
consulting services. Instead, Chin and Humad paid them substantial
sums of money to induce them into ordering and using
SpineFrontier's devices in surgeries subsidized by federal
healthcare benefit programs. Humad allegedly calculated each
payment based on both the volume of surgeries that the surgeon
- 3 -
performed using SpineFrontier's devices and the amount of revenue
those surgeries generated for the company.1
During the development of its consulting program,
SpineFrontier engaged an outside law firm, Strong & Hanni PC, to
provide opinion letters about the legality of the proposed
consulting agreements with surgeons. Chin and Humad subsequently
distributed the opinion letters to surgeons to encourage them to
participate in the program.
According to the opinion letters, Strong & Hanni had
determined that the proposed consulting agreements complied with
governing federal healthcare law, "subject to [certain]
assumptions and qualifications" listed in the letters. Those
"assumptions and qualifications" included that:
(i) All documents examined are complete,
authentic, accurate and the . . . formation of
the proposed [consulting agreements is] in
accordance with applicable state and federal
law; and
(ii) The compensation to be paid pursuant
to . . . the [a]greement will be for bona fide
services by the [c]onsultant consistent with
fair market value, in arms'-length
transactions; and
1 On April 1, 2025, the grand jury issued a superseding
indictment charging Chin and Humad with one count of conspiracy to
violate the AKS and three counts of substantive AKS violations
based on the same underlying conduct. The superseding indictment
is now the operative indictment in Humad's criminal case, but
because it postdates the district court's waiver order and includes
substantially similar allegations, we describe only the initial
indictment.
- 4 -
(iii) The parties will perform and implement
the [a]greement as it is drafted, and the
compensation agreed upon and actually paid to
the [c]onsultant . . . will not be determined
in a manner that takes into account the volume
or value of any referrals or business.
The record before us is unclear about the extent of
Strong & Hanni's involvement in the consulting program. The
parties to this appeal contend that the firm was involved
throughout the duration of the program. For example, SpineFrontier
suggests that counsel attended company meetings and helped the
company make its required public disclosures of the consulting
payments.
In any event, the parties began to litigate whether the
defendants could rely on a so-called "involvement-of-counsel"
defense at trial to argue that they lacked the necessary
willfulness to violate the AKS.2 In an order issued in June 2024,
the district court indicated that it was inclined to find a waiver
if any of the three defendants planned to "argue or introduce
evidence [at trial] of their attorneys' involvement to negate the
mens rea the government must prove." The court explained that it
would permit the defendants to highlight the involvement of "other
persons," without regard to their professions, and still preserve
2 The dispute developed after the district court rejected the
government's motion to impose a waiver of SpineFrontier's
attorney-client privilege as to all communications related to the
consulting program based only on the distribution of Strong &
Hanni's opinion letters.
- 5 -
the privilege. But it warned that any attempt to argue a lack of
mens rea based on Strong & Hanni's role in the consulting program
would entitle the government to probe the communications between
those attorneys and the defendants.
Because the defendants had yet to confirm that they would
rely on an involvement-of-counsel defense at trial, the district
court concluded that there was no waiver at that time, but it put
into place procedural guardrails to prevent any potential
prejudice to the government. To minimize the unfairness of any
late disclosure by the defendants, it permitted the government to
serve subpoenas on Strong & Hanni for its communications with
SpineFrontier on the topics covered by the opinion letters. The
court then arranged to maintain the responsive, privileged
documents under seal and set a deadline for the defendants to
provide notice of any intent to raise the involvement-of-counsel
defense at trial.
Chin and Humad asked the district court to reconsider
its June 2024 waiver ruling on two grounds. First, they argued
that unlike a traditional "advice-of-counsel" defense, which
involves a party invoking specific legal advice to justify its
conduct, their involvement-of-counsel defense would not disclose
any privileged advice and thus should not work a waiver. In their
view, a jury could reasonably conclude that the mere involvement
of outside counsel in the consulting program made it less likely
- 6 -
that they knowingly and willfully violated the AKS. Second, Chin
and Humad contended that even if the involvement-of-counsel
defense could in other circumstances operate as a waiver, in this
case, they lacked the authority to waive SpineFrontier's
attorney-client privilege over its objection.
By the time that the district court issued its February
2025 order resolving the motion for reconsideration, the
government had dismissed all charges against SpineFrontier,
leaving Chin and Humad as the only defendants. Thus, in its
decision, the court focused its implied-waiver analysis on Chin
and Humad's collective authority to waive SpineFrontier's
privilege.3 The court reasoned that, without a waiver permitting
the government to probe Chin and Humad's actual communications
with outside counsel, there would be a risk of misleading the jury
if they relied on counsel's involvement to negate their mens rea.
As the court explained, a jury could mistakenly conclude that the
law firm had sanctioned the consulting program as it was
implemented, when in fact it may have based any approval on
"inaccurate or incomplete information." Then, citing a public
business record listing Chin and Humad as SpineFrontier's only two
officers, the court concluded that Chin and Humad together had the
Shortly after the government dismissed the criminal charges
3
against SpineFrontier, the company filed a notice of its continued
objection to a finding of waiver of its attorney-client privilege.
- 7 -
authority to effect an implied waiver of the corporation's
privilege.
In response to the district court's order, on March 3,
2025, Chin and Humad filed separate but simultaneous notices
indicating that Humad planned to rely on the
involvement-of-counsel defense at their joint trial, but Chin did
not. In his notice, Humad explained that he "intends to elicit
evidence concerning the presence or involvement of SpineFrontier's
counsel in the company's consulting program" and to "argue that
the presence or involvement of such attorneys . . . tends to show
that [he] acted in good faith." He also clarified that he "does
not intend to disclose any specific advice from counsel for
SpineFrontier or to make arguments about such legal advice."
Meanwhile, Chin's notice stated that he would not invoke the
involvement-of-counsel defense at the joint trial. Like Humad,
Chin also expressed an understanding that the attorney-client
privilege at issue belonged to SpineFrontier.
The next day, the government filed a response accusing
Chin and Humad of gamesmanship in attempting to circumvent the
district court's prior waiver ruling. It asked the district court
to sever Chin and Humad's trials to prevent Chin from reaping
second-hand benefits from Humad's planned involvement-of-counsel
defense. The court agreed to sever the trials; it did not,
- 8 -
however, make any specific finding about the government's
allegation of gamesmanship.
The privilege issue came to a head when, on March 5,
2025, the district court informed the parties that, based on
Humad's notice, it would "allow inquiry at Humad's trial into
communications between [him] and SpineFrontier's counsel." To
that end, the court stated that it would provide the government
with "documents produced . . . by Strong & Hanni PC that constitute
communications between . . . Humad and counsel."
The district court permitted SpineFrontier an
opportunity to respond to its waiver ruling, but concluded in a
March 7, 2025 order that there was "no basis to bar Humad from
raising th[e] defense." The court then reiterated its finding
that Humad's involvement-of-counsel defense "waives the privilege
as to his communications with Strong & Hanni PC." As a result,
those "communications between Humad and Strong & Hanni PC attorneys
[would] be produced to the government." The court then stayed its
March 7 order to "accommodate review of the privilege issue"
through an immediate interlocutory appeal.
Well after the district court issued its March 7 order,
Chin pleaded guilty to making false statements in violation of
18
U.S.C. § 1001
(a)(2). The government dismissed all the other
pending charges against him as part of the plea agreement. Thus,
- 9 -
Humad is now the only remaining defendant in the criminal case.
His trial is currently scheduled for June 2026.
SpineFrontier timely appealed the March 7 order.
II. DISCUSSION
"The standard of review concerning a claim of
[attorney-client] privilege depends on the particular
issue." Lluberes v. Uncommon Prods., LLC,
663 F.3d 6, 23
(1st
Cir. 2011) (citing Cavallaro v. United States,
284 F.3d 236, 245
(1st Cir. 2002)). "[Q]uestions of law [are reviewed] de novo,
factual findings for clear error, and discretionary judgments,"
such as evidentiary determinations, "for abuse of
discretion." United States v. Gorski,
807 F.3d 451, 459-60
(1st
Cir. 2015); Lluberes,
663 F.3d at 23
.
This appeal raises two key issues. First, whether Humad
has the authority to waive SpineFrontier's privilege. And if so,
second, whether his involvement-of-counsel defense in fact works
a waiver. Like other federal courts of appeal, we are "cautious
about finding implied waivers" and do so only when "principles of
logic and fairness" demand it. In re Keeper of Recs. (Grand Jury
Subpoena Addressed to XYZ Corp.) (XYZ Corp.),
348 F.3d 16, 23
(1st
Cir. 2003); see In re Grand Jury Procs.,
219 F.3d 175, 183
(2d
Cir. 2000). Whether fairness requires a waiver is a fact-based
inquiry informed by the precise nature and circumstances of the
disclosure. See XYZ Corp.,
348 F.3d at 23
.
- 10 -
We preview our conclusions before detailing our
analysis. As we set out below, Humad's authority to waive the
corporation's privilege depends on the extent of his shared
identity and interests with SpineFrontier. See In re Grand Jury
Procs.,
219 F.3d at 185
. Our ability to review this issue is
limited, however, because the district court's waiver ruling
occurred while Chin and Humad were still co-defendants. The record
is thus insufficiently developed for us to determine whether Humad
individually -- as opposed to Chin and Humad jointly -- can waive
the corporation's privilege.
But even if Humad could waive SpineFrontier's privilege,
we hold that not every involvement-of-counsel defense necessarily
works a waiver. Generally, a waiver occurs when a party partially
discloses an otherwise privileged attorney-client communication
for strategic reasons. See United States v. Desir,
273 F.3d 39,
45
(1st Cir. 2001) (collecting sources). But when no privileged
communication has been disclosed, a waiver conclusion is difficult
to justify. See XYZ Corp.,
348 F.3d at 24
; see also Sedco Int'l,
S.A. v. Cory,
683 F.2d 1201
, 1206 (8th Cir. 1982) (finding "at
most" a limited waiver when no privileged communication was put at
issue). Thus, for example, if Humad were to argue only that he
would be less likely to break the law intentionally based on
SpineFrontier's decision to retain Strong & Hanni, a waiver
finding would not be warranted because Humad would not have
- 11 -
revealed any privileged communication. If, by contrast, he strays
beyond that argument and suggests that Strong & Hanni approved the
consulting program as it was executed, then a waiver could be
justified. As the district court concluded, such a defense hinges
on an implied, privileged communication by the attorneys: that the
consulting program, as implemented, was legal. Without a full
disclosure of what Humad told Strong & Hanni about the execution
of the program, such that the government could test if the
attorneys' approval was based on misinformation, Humad's planned
argument to the jury would raise fairness concerns.
At this stage, with Humad not a party to the appeal, the
precise scope of his planned defense remains elusive. But even if
Humad's ultimate defense risks unfair prejudice to the government,
we conclude that the district court should consider addressing any
such prejudice through a limiting instruction and rulings under
Federal Rules of Evidence 401 and 403 before finding an implied
waiver.
A. Jurisdiction
Before turning to the core issues, we start by addressing
the government's contention that our jurisdiction in this case "is
not clear." According to the government, SpineFrontier appealed
the wrong order. As the government points out, SpineFrontier
appealed the district court's March 7 order, not its March 5 order.
That is significant, in the government's view, because the March
- 12 -
5 order sets forth the district court's ruling that Humad's defense
requires a waiver of SpineFrontier's privilege. The March 7 order,
the government claims, relates only to the court's conclusion that
Humad has the authority to waive the corporation's privilege. The
government therefore maintains that we lack jurisdiction to review
the substance of the March 5 order -- that is, whether Humad's
defense works a waiver.
We are not persuaded by the government's argument on
this point. SpineFrontier, as a third party to the criminal case
below, has invoked appellate jurisdiction under the Perlman
exception to the final-order requirement of
28 U.S.C. § 1291
. See
Perlman v. United States,
247 U.S. 7
(1918). The Perlman exception
permits a non-party owner of subpoenaed documents to "seek
immediate appeal of a district court's order requiring production
of those documents." In re Grand Jury Subpoenas,
123 F.3d 695,
697
(1st Cir. 1997). Both parties agree that the Perlman exception
permits our review of the March 7 order.
Review of the March 7 order alone allows us to rule on
the key privilege issues raised in this case. In that order, the
district court explicitly stated that it "finds no basis to bar
Humad from raising [the involvement-of-counsel] defense
and . . . finds that Humad's raising of this defense waives the
privilege as to his communications with [SpineFrontier's
counsel]." (Emphasis added.) The court then stayed the March 7
- 13 -
order to "accommodate review of the privilege issue." (Emphasis
added.) Thus, the March 7 order contains the composite holding
that (1) Humad's planned defense requires a waiver and (2) Humad
has the authority to invoke that defense and waive SpineFrontier's
privilege. Because our jurisdiction over the March 7 order is
sufficient to decide the issues posed by this appeal, we need not
evaluate our jurisdiction to review the March 5 order.
B. Implied Waivers
We turn to the relevant legal framework for evaluating
a potential waiver of the attorney-client privilege. The
"privilege attaches to corporations as well as to individuals."
Commodity Futures Trading Comm'n v. Weintraub,
471 U.S. 343, 348
(1985). It "protects communications made in confidence by a client
and a client's employees to an attorney, acting as an attorney,
for the purpose of obtaining legal advice." Miss. Pub. Emps.'
Ret. Sys. v. Bos. Sci. Corp.,
649 F.3d 5, 30
(1st Cir. 2011)
(citing Upjohn Co. v. United States,
449 U.S. 383, 394-95
(1981)). At its core, the privilege is intended to promote "full
and free discussion" between client and counsel to "better enabl[e]
the client to conform his conduct to the dictates of the law." XYZ
Corp.,
348 F.3d at 22
. But because it presents a considerable
obstacle to "the search for truth," courts must construe the
privilege "narrowly."
Id.
- 14 -
The attorney-client privilege may be waived expressly or
impliedly. See
id.
SpineFrontier and Humad have vigorously
refused to expressly waive the corporation's privilege. Thus, the
only issue here is whether Humad's planned defense can work an
implied waiver of SpineFrontier's privilege.
"The concept of implied waiver[s] . . . is not
well-developed in this circuit." Desir,
273 F.3d at
45
. Nonetheless, we have recognized that "logic and fairness" are
the touchstones of an implied-waiver analysis. XYZ Corp.,
348
F.3d at 23
. Typically, implied waivers occur when "the party
asserting the privilege place[s] protected information in issue
for personal benefit through some affirmative act."
Id.
at 24
(quoting Jack B. Weinstein & Margaret A. Berger, Weinstein's
Federal Evidence § 503.41 (Joseph M. McLaughlin ed. 1997)). But
because the demands of fairness vary from case to case, courts
must carefully review the specific facts and circumstances of the
disclosure to determine whether the privilege has been impliedly
waived. See id. at 23; see also In re Grand Jury Procs.,
219 F.3d
at 183-90
; United States v. White,
887 F.2d 267, 269-71
(D.C. Cir.
1989). In the corporate context, the relationship between the
executive seeking to invoke privileged communications and the
corporation that holds the privilege bears heavily on the fairness
of an implied waiver. See In re Grand Jury Procs.,
219 F.3d at
183-84
.
- 15 -
We find the analysis in In re Grand Jury Proceedings to
be instructive. See
id. at 183-90
. There, the U.S. Court of
Appeals for the Second Circuit considered multiple factors to
determine whether an executive's grand-jury testimony impliedly
waived his company's attorney-client privilege. See
id. at 180-81
.
First, the court evaluated whether the executive and company were
"alter-egos" or otherwise shared an identity of interests. See
id. at 185-86
. Second, it reviewed the nature and context of the
disclosure, including the extent to which the executive
voluntarily revealed privileged communications. See
id. at
186-88
. And third, the court assessed the potential prejudice to
the government, noting that any remedy should be "tailored" to the
severity of the prejudice. See
id. at 188-90
.
The In re Grand Jury Proceedings factors provide a
helpful framework for our inquiry. Again, though, we remain
mindful that "courts should be cautious about finding implied
waivers," and indeed, "the case law reveals few genuine instances
of implied waiver." XYZ Corp.,
348 F.3d at 23
.
1. The Relationship Between Humad and SpineFrontier
We first consider Humad's relationship with
SpineFrontier. If they are alter-egos, then Humad's defense could
effect a waiver of the corporation's privilege. See In re Grand
Jury Procs.,
219 F.3d at 185
. But not all executives are
alter-egos of their employers, and the determination depends on
- 16 -
multiple considerations, including the executive's decision-making
authority, the extent of their control over the corporation, and
the corporation's public or private status. See
id.
For example,
in In re Grand Jury Proceedings, the Second Circuit concluded that
an executive who was the founder, CEO, and controlling shareholder
of the corporation was not its alter-ego because the corporation
was publicly held and had a board of directors, a large shareholder
base, and several employees. See
id.
The parties contest whether Humad and SpineFrontier are
alter-egos. SpineFrontier argues that Chin is its only possible
alter-ego because he is the founder, President, CEO, and sole
member of the Board of Directors, and because he owns nearly
one-hundred percent of the company's shares. Although Humad is
the CFO, Secretary, and Treasurer, he owns no stock in the company,
handles only the administrative and financial aspects of the
business, and reports to Chin.
For its part, the government highlights that
SpineFrontier is a closely held, privately owned company with only
two officers: Chin and Humad. The government maintains that the
separation between SpineFrontier on the one hand, and Chin and
Humad on the other, is "illusory," and that they are weaponizing
the corporate form so that they can use the privilege as a sword
and a shield. On that basis, the government asserts that Humad
should be treated as SpineFrontier's alter-ego.
- 17 -
But the government is wrong to treat Chin and Humad as
a unit. Chin is no longer a co-defendant in Humad's criminal case.
The district court severed their trials, and Chin has since entered
a plea agreement, removing him entirely from the criminal
proceeding. Yet the government repeatedly points to Chin and
Humad's joint authority to waive SpineFrontier's privilege. It
asserts, for example, that "in terms of decision-making, Chin and
Humad effectively are SpineFrontier, and SpineFrontier is them."
(First and third emphases added.) It further states that "[t]his
alter-ego determination . . . establishes that SpineFrontier and
its officers cannot rationally be treated as separate parties."
(Emphasis added.) The relevant inquiry, however, is not whether
Chin and Humad together are SpineFrontier; it is whether Humad on
his own is SpineFrontier. Based on the record before us, whether
Humad is SpineFrontier's alter-ego is far from clear.
Even without an alter-ego relationship, a tight
alignment of interests may permit an executive to effect a
corporate waiver. See In re Grand Jury Procs.,
219 F.3d at 185
.
But if the executive's interest in defending against pending
criminal charges plausibly "override[s] his fidelity to the
corporation, including its interest in preserving the privilege,"
then imputing a waiver to the company may not be fair. Id.; see
also
id. at 187-88
(considering whether the corporation "itself
[took] any affirmative steps to inject privileged materials into
- 18 -
the litigation," or if the executive's disclosure was intended "to
exculpate himself personally").
SpineFrontier's and Humad's interests may well diverge.
SpineFrontier does not currently face any criminal charges and has
consistently sought to preserve its attorney-client privilege.
Meanwhile, Humad seeks to invoke the involvement-of-counsel
defense to avoid a criminal conviction, an interest that may
"override his fidelity to the corporation."
Id. at 185
; cf.
Weintraub,
471 U.S. at 348-49
(stating that corporate officers,
"of course, must exercise the [corporation's] privilege in a manner
consistent with their fiduciary duty to act in the best interests
of the corporation and not of themselves as individuals").
Although the government asserts that "the corporation and its
officers have an identity of interest[s]," its framing of the issue
again improperly treats Chin and Humad as a single entity.4
(Emphasis added.)
The district court conducted its principal waiver
analysis when Chin and Humad were still co-defendants. The court
4The government's continued treatment of Chin and Humad as
if they were a unit stems from its assertion that they were
coordinating their strategies by taking "irreconcilable" positions
on the involvement-of-counsel defense at their originally
scheduled joint trial. But the district court did not make any
finding of gamesmanship; instead, it granted the government's
request to sever the trials. Without any further findings by the
district court on this issue, we do not see how this particular
allegation of gamesmanship would be a basis to impute a waiver to
SpineFrontier.
- 19 -
concluded that as "the controlling officers of SpineFrontier,
[d]efendants Chin and Humad" could jointly waive the corporation's
privilege. Ever since it severed the trials and Chin pleaded
guilty, however, the court has not had the opportunity to determine
whether Humad alone can waive SpineFrontier's privilege.5
The government maintains that the district court did not
analyze Humad's authority to waive the privilege on his own because
it determined nothing "material ha[d] changed" after it severed
the trials. We are not so sure. As the government acknowledges,
the implied-waiver inquiry is highly fact-dependent. See XYZ
Corp.,
348 F.3d at 23
. That Chin -- who both parties agree is an
alter-ego of SpineFrontier -- is no longer involved in Humad's
criminal case constitutes a material change in circumstances that
warrants a refreshed waiver analysis. We thus remand so that the
district court can evaluate on a more developed record whether
Humad and SpineFrontier are alter-egos or share an identity of
interests.
Neither of the parties before us suggests a clear path
forward if the district court determines that Humad lacks the
authority to waive SpineFrontier's privilege. The government
urges us to hold that, even without such authority, Humad has a
5 We emphasize that the parties provided the district court
with limited information on a compressed timeline, with trial then
scheduled to commence just days after the government requested a
severance.
- 20 -
Sixth Amendment right to present a defense that supersedes the
corporation's privilege. The Supreme Court has left that question
open, and without full briefing on the issue, we decline to resolve
it at this time. See Swidler & Berlin v. United States,
524 U.S.
399
, 408 n.3 (1998) (leaving open the possibility that "exceptional
circumstances implicating a criminal defendant's constitutional
rights might warrant breaching the privilege").
We note, however, that although the Sixth Amendment
guarantees criminal defendants "a meaningful opportunity to
present a complete defense," it does not grant "an unfettered right
to offer testimony that is incompetent, privileged, or otherwise
[inadmissible] under standard rules of evidence." United States
v. Coleman,
149 F.4th 1
, 34 (1st Cir. 2025) (alteration in
original) (quoting United States v. Brown,
669 F.3d 10, 19
(1st
Cir. 2012)); see also United States v. Pires,
642 F.3d 1, 13
(1st
Cir. 2011) ("[T]he right to present a defense does not trump valid
rules of evidence."). As the Supreme Court has stated, the Sixth
Amendment does not require the admission of "evidence if its
probative value is outweighed by certain other factors such as
unfair prejudice, confusion of the issues, or potential to mislead
the jury." Holmes v. South Carolina,
547 U.S. 319, 326
(2006)
(citing Fed. R. Evid. 403). Thus, Humad's Sixth Amendment rights
may not win out if, for example, evidence of Strong & Hanni's
- 21 -
involvement risks substantial confusion or unfair prejudice
relative to its probative value. See Fed. R. Evid. 403.
If the district court determines that the evidence Humad
seeks to introduce in support of his defense is admissible under
"well-established rules of evidence," then it should consider
whether alternative measures, such as a jury instruction, could
neutralize any confusion or prejudice without a waiver of
SpineFrontier's privilege. See Holmes,
547 U.S. at 326
; cf. United
States v. Baltas,
236 F.3d 27, 35
(1st Cir. 2001) (acknowledging
jury instructions as an appropriate method of minimizing
prejudice). Regardless, if the court concludes that Humad lacks
the authority to waive SpineFrontier's privilege, it should
"breach" the privilege for the purpose of trial only if it
determines that "exceptional circumstances" justify doing so.
Swidler & Berlin,
524 U.S. at 408
n.3.
2. The Nature of the Defense
We next evaluate the nature of Humad's
involvement-of-counsel defense. Specifically, assuming Humad has
the authority to waive SpineFrontier's privilege, we consider
whether his defense actually requires a waiver to avoid prejudice
to the government.
Unlike other courts to review claims of implied waiver,
we do not have the benefit of analyzing the actual disclosure of
privileged attorney-client communications that triggered the
- 22 -
potential waiver. See, e.g., XYZ Corp.,
348 F.3d at 20
. Indeed,
we remain unsure if Humad will make any disclosure of privileged
information as part of his defense. Without Humad as a party to
this appeal, our ability to ascertain the exact contours of his
proposed defense is limited.
We thus draw our understanding of Humad's planned
defense primarily from his March 3, 2025 notice to the district
court, supplemented by the government's and SpineFrontier's
"interpretation[s]" of that notice. In the March 3 notice, Humad
stated that he "intends to elicit evidence concerning the presence
or involvement of SpineFrontier's counsel in the company's
consulting program."6 In so doing, he proposes to "argue [to the
jury] that the presence or involvement of such
attorneys . . . tends to show that [he] acted in good faith" and
without the intent required to violate the AKS.
Humad's notice does little to clarify the exact nature
of his proposed defense, which remains ambiguous. The parties on
appeal do agree, though, that Humad does not intend to reveal any
specific attorney-client communications or argue that he relied on
any particular legal advice. In that sense, Humad's defense is
distinct from the traditional advice-of-counsel defense, which we
6 Of course, the defense that Humad eventually seeks to
present at trial may be different than the defense he proposed in
the March 3 notice.
- 23 -
have previously described as a "paradigmatic example of [an implied
waiver]."7 XYZ Corp.,
348 F.3d at 24
.
The traditional advice-of-counsel defense involves the
"pleader put[ting] the nature of its lawyer's advice squarely in
issue."
Id.
"Implying a . . . waiver in such a case ensures
fairness because it disables litigants from using the
attorney-client privilege as both a sword and a shield."
Id.
If
it were otherwise, the privilege holder could "selectively
disclose fragments helpful to its cause, entomb other (unhelpful)
fragments, and in that way kidnap the truth-seeking process."
Id.
Citing White, SpineFrontier asserts that Humad's
involvement-of-counsel defense does not introduce the fairness
concerns that accompany the advice-of-counsel defense. White
recognized that the mere "acknowledgement that one's attorney was
7 To
establish a formal advice-of-counsel defense, a defendant
must show that:
(1) [B]efore taking action, (2) he in good
faith sought the advice of an attorney whom he
considered competent, (3) for the purpose of
securing advice on the lawfulness of his
possible future conduct, (4) and made a full
and accurate report to his attorney of all
material facts which the defendant knew, (5)
and acted strictly in accordance with the
advice of his attorney who had been given a
full report.
Liss v. United States,
915 F.2d 287, 291
(7th Cir. 1990). Neither
party contends that Humad's planned defense constitutes a formal
advice-of-counsel defense.
- 24 -
present during a conversation is not equivalent to affirmative
reliance on his advice that one's action is legal."
887 F.2d at
270
. The court further held that "[a] general assertion lacking
substantive content that one's attorney has examined a certain
matter is not sufficient to waive the attorney-client privilege."
Id. at 271
(emphasis added).
To be sure, the factual circumstances in White were
different. We do not read that case to countenance every defense
that "acknowledge[s]" counsel's involvement without
"affirmative[ly] rel[ying]" on their advice.
Id. at 270
. But we
do recognize that an involvement-of-counsel defense may skirt the
fairness concerns that typically justify a waiver. Thus, we
conclude that an involvement-of-counsel defense does not
automatically trigger a waiver of the privilege.
Still, whether Humad's defense justifies a waiver will
depend on what exactly he seeks to argue at trial, which, as of
now, remains murky. As the district court concluded, to the extent
Humad seeks to suggest that outside counsel were "watching" or "in
the room" while the consulting program was ongoing, we agree that
such a defense would be relevant only if a jury draws the inference
that counsel must have approved of Humad's conduct in implementing
the program. Thus, it would be unfair for Humad to proceed with
such a defense without the government probing the extent of Strong
& Hanni's knowledge of how the program was executed.
- 25 -
On the other hand, it may be that Humad merely seeks to
argue that he was less likely to have formed the intention to
violate the AKS because he knew that SpineFrontier had engaged a
law firm to set up the consulting program and remain on retainer
to address problems as they arose. In that scenario, we agree
with the reasoning in White that such a defense does not work a
waiver because there is no disclosure of privileged information.
Such a defense would not, for example, inject any "substantive
content" of attorney-client communications into the litigation.
See
id. at 271
; see also XYZ Corp.,
348 F.3d at 24
. Nor does it
require the jury to draw an inference that corporate counsel
approved Humad's actions in implementing the program during the
years it was in operation.
Humad's March 3 notice lends itself to either
interpretation. On remand, the district court will have the
opportunity to analyze the precise defense Humad seeks to raise at
trial. Depending on the theory Humad advances, a reference to
counsel's involvement to negate mens rea may not require a waiver
of SpineFrontier's privilege.8
8 The district court, of course, also has the discretion to
address any shift in tactics by Humad during trial. The government
would be unfairly disadvantaged if, mid-trial, Humad pivots from
referencing the engagement of counsel to arguing that counsel
approved the program. In that event, the court could resolve the
issue as it deems fit, including through a limiting jury
instruction or a brief continuance to allow the government to
review the relevant communications.
- 26 -
3. The Potential Prejudice to the Government
Finally, we note the availability of alternative
approaches to address any potential prejudice from Humad's
defense. To begin, based on the arguments before us, we are
skeptical that the defense raises a meaningful risk of prejudice
to the government. Indeed, the government does not articulate any
material prejudice that it faces. As the government acknowledges,
the force of Humad's planned defense, at least as currently
proposed, may well be undermined by introducing into evidence
Strong & Hanni's opinion letters themselves. Those letters
explicitly assumed that "the compensation agreed upon and actually
paid to the [c]onsultant . . . will not be determined in a manner
that takes into account the volume or value of any referrals or
business."
Further, to the extent that the defense does risk
prejudicing the government, the district court should consider
relying on Federal Rules of Evidence 401 and 403 to mitigate such
prejudice.9 See United States v. Bankman-Fried, 22-cr-673,
2024
WL 477043
, at *2-4 (S.D.N.Y. Feb. 7, 2024). Alternatively, as the
9 The government contends that SpineFrontier has waived its
right to seek an alternative to waiver because it did not propose
any options to the district court. The availability of alternative
solutions at trial, however, is germane to the fairness inquiry,
as it helps assess the need for a waiver under the circumstances.
See In re Grand Jury Procs.,
219 F.3d at 189
. Thus, we see no
reason for the district court to avoid considering the suitability
of non-waiver options on remand.
- 27 -
district court at one point contemplated, a jury instruction may
adequately limit the risk of jury confusion. We do not prejudge
the appropriate remedy for any involvement-of-counsel defense that
the district court may decide to permit at trial. We note only
that a waiver is a significant penalty, and less-onerous mechanisms
may be available to address any prejudice. See In re Grand Jury
Procs.,
219 F.3d at 189
; XYZ Corp.,
348 F.3d at 23
.
III. CONCLUSION
For all these reasons, we vacate the district court's
March 7 order and remand for further proceedings consistent with
this opinion.
- 28 -Case Information
- Court
- 1st Cir.
- Decision Date
- November 26, 2025
- Status
- Precedential