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APRIL 24, 2001

Record No. 2513-98-2

Present: Chief Judge Fitzpatrick, Judges
Benton, Willis, Elder, Annunziata, Bumgardner, Frank, Humphreys,
Clements and Senior Judge Coleman

Argued at Richmond, Virginia






James M. Lumpkin, Judge Designate


Edmund R. Michie for appellant.

Kathleen B. Martin, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

Steven Christopher Sevachko was convicted by a
jury of perjury, in violation of Code ? 18.2-434. The basis
for the perjury conviction was that Sevachko had testified
falsely under oath at his trial for driving on a suspended
license when he testified that he had not been driving. The
Commonwealth attempted to prove that Sevachko had testified
falsely about not driving by proving through the arresting
officer that Sevachko was, in fact, driving at the time — a fact
the Commonwealth had previously attempted to prove through the
officer’s testimony in Sevachko’s trial for driving on a
suspended license.

A panel of this Court unanimously reversed the
perjury conviction, holding that the Commonwealth was
collaterally estopped from relitigating whether Sevachko was in
fact driving. The panel, however, was divided upon the question
whether the prosecution should be dismissed or remanded for
further proceedings. See Sevachko v. Commonwealth,
32 Va. App. 561, 529 S.E.2d 803 (2000). We granted rehearing en
banc to resolve that question.

Sevachko argues that the doctrine of collateral
estoppel not only precludes the Commonwealth, in the perjury
prosecution, from proving the underlying controverted fact from
the original prosecution that he was driving a motor vehicle on a
particular date, but also precludes the perjury prosecution
altogether. Upon rehearing en banc, we hold that
the Commonwealth was collaterally estopped from proving in the
perjury prosecution that Sevachko drove his motor vehicle on the
date in question. Therefore, because the Commonwealth introduced
evidence to that effect and undertook to relitigate that fact in
the perjury prosecution, we reverse the perjury conviction.
However, because the Commonwealth is not collaterally estopped
from proving that Sevachko perjured himself in the prior
proceeding as to a material fact by proving facts other than that
he was driving on the date in question, we remand the case to the
trial court for such further proceedings as the Commonwealth may
be advised.

Additionally, Sevachko argues that the trial
court erred in the perjury prosecution by admitting the testimony
of his former attorney, who represented him in the driving on a
suspended license case. Sevachko contends that allowing his
former attorney to testify about statements he had made to the
attorney during the course of the attorney’s representation of
him in the prior proceeding violated the attorney-client
privilege and, thus, was inadmissible. Because this issue is
likely to arise again on remand if the Commonwealth elects to
pursue the prosecution, we address that question.


Sevachko was charged with having driven on a
suspended license. The general district court appointed an
attorney to represent Sevachko. Prior to trial, the attorney
informed the trial court that she was confronted with a
"dilemma," and the trial court permitted her to
withdraw. Sevachko, who had a second attorney appointed to
represent him, was subsequently found not guilty of the driving
on suspended license charge after testifying that he had not been
driving on the date alleged.

Several months before Sevachko’s driving on a
suspended license trial, his first court-appointed attorney
became employed with the Albemarle County Commonwealth’s
Attorney’s Office, the same office that was prosecuting the
driving on a suspended license case against Sevachko. Following
Sevachko’s acquittal of those charges, the first court-appointed
attorney heard the case being discussed in the office. She made
"an extemporaneous statement to [her] boss" that
Sevachko "was a former client of mine, I remember that case,
he told me that he was going to say he wasn’t driving."
Sevachko’s former court-appointed attorney and the Commonwealth’s
Attorney then consulted the Code of Professional Responsibility
and concluded that the Code required the attorney to disclose to
the circuit court what had occurred. The attorney filed a report
with the Charlottesville Police Department and the City of
Charlottesville Commonwealth’s Attorney’s Office and, as a
result, the Commonwealth’s Attorney indicted Sevachko for

At the perjury trial, Sevachko’s former
court-appointed attorney testified voluntarily for the
Commonwealth and did not assert the attorney-client privilege on
behalf of her client. Sevachko objected to her testifying on the
ground that his confidential discussions with his attorney were
protected by the attorney-client privilege. The trial court ruled
that the privilege did not apply to protect a fraud that had been
perpetrated on the court. The former attorney testified that,
during the course of her representation of Sevachko for the
driving on a suspended license charge, Sevachko admitted he was
driving. She advised Sevachko to plead guilty based on his
admission. She testified that Sevachko then stated, "What
will happen if I say I wasn’t driving." She advised Sevachko
that the statement would be perjury and that if he persisted in
that defense, she would seek leave to withdraw as his counsel.
She testified that Sevachko said he was going to testify that he
was not driving. The attorney then sought, and was granted, leave
to withdraw.


A. Collateral Estoppel

We first consider whether the doctrine of
collateral estoppel precluded the perjury prosecution or merely
precluded the Commonwealth from proving that Sevachko was driving
on the date in question.

Collateral estoppel is a doctrine of fact
preclusion that is "embodied in the fifth amendment
protection against double jeopardy." Simon v.
, 220 Va. 412, 415, 258 S.E.2d 567, 569 (1979).
"[W]hen an issue of ultimate fact has once been determined
by a valid and final judgment, that issue cannot again be
litigated between the same parties in any future lawsuit." Ashe
v. Swenson
, 397 U.S. 436, 443 (1970). The doctrine does not,
however, operate to preclude a party from proving the elements of
a cause of action or offense by other evidence independent of the
fact which the party is collaterally estopped from proving. See
Simon, 220 Va. at 419, 258 S.E.2d at 572. Only where proof
of the estopped fact is essential to proving an element of the
newly charged offense or cause of action does the doctrine of
collateral estoppel also preclude proof of an essential element
of the other offense, thereby foreclosing a prosecution for the
other offense. See Ashe, 397 U.S. at 445–47
(holding that the state was collaterally estopped from proving
that the defendant was the robber in the subsequent proceedings
because the state failed to prove, in the first of a series of
prosecutions, that the defendant was the robber, and proof of
that fact was necessary and essential to prove the subsequent
robberies). "The party seeking the protection of collateral
estoppel carries the burden of showing that the verdict in the
prior action necessarily decided the precise issue he seeks to
now preclude." Rogers v. Commonwealth, 5 Va. App.
337, 341, 362 S.E.2d 752, 754 (1987).

In the trial for driving on a suspended
license, the fact about which Sevachko allegedly testified
falsely was that he was not driving on the offense date. The
dissenters reason that any evidence which proved that Sevachko
testified falsely as to that fact must necessarily prove, at
least by implication, that he was driving on the offense date —
the very fact the Commonwealth is estopped from relitigating.
However, that reasoning by the dissenters would preclude every
perjury prosecution against a former defendant who was acquitted
and who testified falsely about an element of the Commonwealth’s
case. That application of the doctrine of collateral estoppel
would, on the other hand, not preclude a perjury prosecution
against a defendant who had testified falsely but had been
convicted. The doctrine of collateral estoppel is neither that
restrictive nor should it be applied in a manner to reach such an
anomalous result.

Here, proof that Sevachko was driving on the
date of the charged offense was not a necessary and essential
element to prove the perjury offense. Whether Sevachko testified
falsely about driving was the essential element of the perjury
prosecution and that fact could have been proven by evidence
other than proof that Sevachko was, in fact, driving. While the
Commonwealth was estopped from proving in the perjury prosecution
the fact that Sevachko was driving, the Commonwealth was not
precluded from proving by other means that he perjured himself,
such as by discrediting his alibi that he was having his car
repaired, by an admission from him that he had perjured himself,
or perhaps by evidence that he admitted to others after the fact
that he had testified falsely. Even though the fact finder may,
in such situations, coincidentally or necessarily conclude that
Sevachko was driving when the Commonwealth proved that he
testified falsely, the Commonwealth does not violate the
constitutionally based collateral estoppel bar by proving, by
such other evidence, that Sevachko implicitly lied when he
testified that he was not driving. Therefore, the bar created by
the collateral estoppel doctrine in this case is that the
Commonwealth cannot, as it did here, prove Sevachko perjured
himself by relitigating and proving that he was, in fact,
driving. See United States v. Carter, 60 F.3d 1532
(11th Cir. 1995); United States v. Haines, 485 F.2d 564
(7th Cir. 1973); Adams v. United States, 287 F.2d 701 (5th
Cir. 1961); State v. Hutchins, 746 A.2d 447 (N.H. 2000); People
v. Briddle
, 405 N.E.2d 1357 (Ill. App. Ct. 1980).

At trial, the Commonwealth introduced Officer
A.J. Gluba’s testimony that Sevachko was driving on a suspended
license, along with his former attorney’s testimony, to prove
that Sevachko testified falsely in the prior proceeding. Because
we hold that the Commonwealth is estopped from proving that
Sevachko was driving, we find that the trial court erred in
admitting Gluba’s testimony.

Accordingly, we reverse the conviction and
remand the case for further proceedings if the Commonwealth be so
advised. See Simon, 220 Va. at 419-20, 258 S.E.2d
at 572-73 (remanding case and holding that Commonwealth is not
precluded from prosecuting the defendant in a subsequent
prosecution based on other evidence independent of the fact which
the Commonwealth is collaterally estopped from proving).

B. Confidential Communication

"The attorney-client privilege is the
oldest of the privileges for confidential communications known to
the common law." Upjohn v. United States, 449 U.S.
383, 389 (1981). "Confidential communications between
attorney and client made because of that relationship and
concerning the subject matter of the attorney’s employment ‘are
privileged from disclosure, even for the purpose of administering
justice.’" Commonwealth v. Edwards, 235 Va.
499, 508-09, 370 S.E.2d 296, 301 (1988) (citations omitted).

The relationship between an attorney and [her] client is a sacred one. In that relationship, the client must be
secure in the knowledge that any information he reveals to
counsel will remain confidential. The confidentiality of the
attorney-client relationship is severely compromised, if not
destroyed, when, after representing a client, a lawyer joins in
the criminal prosecution of that client with respect to the
identical matter about which the attorney originally counseled
the client. Such switching of sides is fundamentally unfair and
inherently prejudicial. Without question, the client’s right to a
fair trial, secured by the due process clauses of the fifth and
fourteenth amendments, is compromised under these circumstances.

United States v. Schell, 775 F.2d 559,
565 (4th Cir. 1985). "The proponent has the burden to
establish that the attorney-client relationship existed, that the
communications under consideration are privileged, and that the
privilege was not waived." Edwards, 235 Va. at
509, 370 S.E.2d at 301.

Sevachko’s former attorney disclosed two
confidences that Sevachko had confided in her concerning the
subject of the litigation. First, she disclosed to her employer,
the Albemarle County Commonwealth’s Attorney, that Sevachko
admitted to her he was driving the automobile on the date
charged. Second, she disclosed that Sevachko told her he intended
to testify untruthfully that he was not driving. As a result of
that disclosure, she sought and obtained leave of court to
withdraw as Sevachko’s court-appointed attorney.
Thus, the issue on appeal is whether the communications by
Sevachko to his attorney were privileged and whether the trial
judge erred by admitting the evidence over Sevachko’s objection
in violation of that privilege.

We hold that Sevachko’s disclosure to his
attorney that he was driving on the date of the charged offense
was made in relation to and during the course of the attorney’s
representation of her client and that the communication was
confidential and privileged and not subject to disclosure. See
Edwards, 235 Va. at 508-09, 370 S.E.2d at 301. However, we
hold that Sevachko’s disclosure to his attorney that he was going
to testify untruthfully that he was not driving was not
privileged, and, thus, the statement was admissible under the
crime-fraud exception to the privilege.

"[I]t is settled under modern authority
that the [attorney-client] privilege does not extend to
communications between attorney and client where the client’s
purpose is the furtherance of a future intended crime or
fraud." 1 McCormick on Evidence ? 95, at
380 (John W. Strong, ed., 5th ed. 1995). The Supreme Court in Seventh
District Committee v. Gunter
, 212 Va. 278, 183 S.E.2d 713
(1971), applying this principle, held that "[t]he protection
which the law affords to communications between attorney and
client has reference to those which are legitimately and properly
within the scope of a lawful employment and does not extend to
communications made in contemplation of a crime, or perpetration
of a fraud." Id. at 287, 183 S.E.2d at 719 (emphasis
added) (citing Strong v. Abner, 105 S.W.2d 599 (Ky.

In Gunter, the defendant, an attorney,
was charged with malpractice and unethical and unprofessional
conduct. The Seventh District Committee of the Virginia State Bar
(Committee) was assigned to investigate the alleged misconduct.
Gunter employed counsel to represent him at the Committee hearing
to defend the allegations of malpractice and unethical and
unprofessional conduct. During his strategy meetings with his
attorneys, Gunter intentionally misrepresented to his attorneys a
material and critical fact. Believing their client’s
representation, Gunter’s attorneys perpetuated the
misrepresentation to the Committee. Gunter was fully aware of his
attorneys’ intended representations and was fully apprised of
their strategy. Before final resolution of the matter before the
Committee, Gunter’s attorneys learned of their client’s
misrepresentation and sought leave to withdraw. At a subsequent
hearing before the Committee, after Gunter’s counsel withdrew,
Gunter told the Committee that he initially considered
misrepresenting the facts to the Committee but that he changed
his mind and was coming forward with the truth of his own
volition. As a result of these developments, the Committee filed
a complaint against Gunter alleging that he, for the purpose of
misleading the Committee, altered, changed, and falsified a date
upon a statement, which was material to the Committee’s
investigation of Gunter.

At trial, the court admitted evidence from
Gunter’s attorneys detailing communications Gunter had with his
attorneys which would prove that Gunter was aware of their
strategy and that Gunter gave his attorneys false information
knowing that the attorneys would misinform the Committee. The
Supreme Court affirmed the trial court’s ruling that the evidence
was admissible, finding that the "communications alleged to
be privileged were made in the furtherance of the commission of
an intended fraud on the Committee." 212 Va. at 288, 183
S.E.2d at 719-20. The Supreme Court stated, "'[T]he
perpetration of a fraud is outside the scope of the professional
duty of an attorney and no privilege attaches to a communication
and transaction between an attorney and client with respect to
transactions constituting the making of a false claim or the
perpetration of a fraud.’" 212 Va. at 287, 183 S.E.2d at 719
(quoting Kneale v. Williams, 30 So.2d 284, 287 (Fla. 1947)
(en banc)).

Here, Sevachko’s disclosure to his attorney
regarding his intent to commit perjury was made prior to trial
and in contemplation of committing perjury and a fraud upon the
court. The privilege does not permit a litigant to commit a fraud
upon a court and, therefore, to that end, the privilege does not
apply to communications, which if not revealed would hamper the
administration of justice. See Gunter, 212 Va. at
287-88, 183 S.E.2d at 719. Accordingly, the attorney-client
privilege did not attach to Sevachko’s statement to his attorney
pertaining to his intent to commit perjury; therefore, the
statement was admissible in the perjury prosecution.

Accordingly, we hold that the trial court erred
by admitting Sevachko’s communication to his attorney that he
was, in fact, driving, because the communication was made in the
course of the attorney-client relationship and it concerned the
subject matter of the attorney’s employment; thus, it was
privileged from disclosure. However, Sevachko’s communication to
his attorney that he intended to commit perjury was not protected
by the attorney-client privilege because the statement was made
in contemplation of a crime and, thus, was admissible.

Reversed and remanded.

Bumgardner, J., with whom Benton, Annuziata and
Clements, JJ., join, dissenting.

I respectfully dissent from the decision to
permit another trial. The unusual procedural posture of this case
dictates dismissal. The general verdict rendered in criminal
trials is a curtain that shrouds the components of the decision
returned. Normally, a trial record would not reveal whether the
trial resolved a single issue and a single fact. However, this
record is an exception.

The sole issue at the first trial was whether
the defendant drove his automobile on December 24, 1995. In the
perjury trial, the Commonwealth had to prove the defendant made a
false statement under oath. The only evidence offered to prove
the defendant lied at the first trial was the admission to his
attorney that he did drive. That was the sole specification of
perjury alleged, argued, or attempted at trial.

Dismissal would not, as the majority suggests,
preclude every perjury prosecution of a defendant who testified
falsely. Dismissal would simply acknowledge that collateral
estoppel must bar retrial in the rare situation that permits
ascertaining a single fact was disputed in each prosecution, and
that fact was the same in both.

I do not address the issue of attorney-client
privilege because collateral estoppel precludes another trial.


[1] Judge Coleman participated in the
hearing and decision of this case prior to the effective date of
his retirement on December 31, 2000 and thereafter by his
designation as a senior judge pursuant to Code ? 17.1-401.

[2] A lawyer is prohibited
from knowingly revealing a confidence or secret of her client,
except, among other things, where the client has expressed his
intention "to commit a crime and the information is
necessary to prevent the crime" or where the lawyer has
information which "clearly establishes that the client has,
in the course of the representation, perpetrated a fraud related
to the subject matter of the representation upon a
tribunal." Code of Prof. Resp. DR 4-101(C), (D) (1999). We
do not decide whether counsel’s disclosures violated DR 4-101. See
Fisher v. Commonwealth, 26 Va. App. 788, 794, 497
S.E.2d 162, 165 (1998) (questioning "’the propriety of
equating the force of a disciplinary rule with that of decisional
or statutory law’" (citation omitted)).