IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50280 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUCILLE CHRISTIE BLAKLEY; DAVID PORRAS,

Defendants-Appellants.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. MO-98-CR-92-3 -------------------- February 23, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

David Porras argues that the district court clearly erred in

allowing his bankruptcy attorney to testify at trial because it

violated the attorney-client privilege. Lucille Christie Blakley

adopts this argument.

The district court did not clearly err in allowing the

attorney to testify because the Government made a prima facie

showing that Porras and his codefendants sought counsel’s legal

representation in order to further their illegal and fraudulent

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-50280 -2-

conduct. Thus, the defendants’ attorney-client privilege was lost

under the crime or fraud exception to that rule. See United States

v. Ballard,

, (5th Cir. 1986).

Blakley argues that the district court abused its discretion

in denying her motion to take the deposition of her fugitive

codefendant William Edmiston pursuant to Fed. R. Crim. P. 15(a),

which provides that the district court may order the taking of a

deposition in a criminal case if it finds that exceptional

circumstances exist.

The district court did not abuse its discretion in denying

Blakley’s motion for the deposition. The district court concluded

based on its prior experience with Edmiston in civil proceedings

that Edmiston would not be a credible witness and also determined

that the deposition would expose the prosecutors to an unnecessary

risk of harm and would cause the Government to incur substantial

expense. Further, the record reflects that Blakley’s prior

testimony in civil proceedings, which was reviewed at the criminal

trial, showed her knowledge of the fraudulent activity, and clearly

outweighed any probative value that would have been given to the

testimony of the fugitive codefendant. Blakley failed to show the

existence of exceptional circumstances warranting the deposition.

See United States v. Aggarwal,

(5th Cir. 1994).

AFFIRMED.