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United States v. Straker

United States District Court, District of Columbia

July 10, 2017

UNITED STATES OF AMERICA
v.
ANDERSON STRAKER, WAYNE PIERRE, RICARDO DE FOUR, ZION CLARKE, KEVIN NIXON, KEVON DEMERIEUX, Defendants.

          MEMORANDUM OPINION

          JOHN D.BATES United States District Judge.

         Petitioners Anderson Straker, Wayne Pierre, Ricardo De Four, Zion Clarke, Kevin Nixon, and Kevon Demerieux were tried and found guilty of two offenses: conspiracy to commit hostage taking, and hostage taking resulting in death. They were sentenced to concurrent terms of life imprisonment on each count, followed by five years' supervised release. After exhausting their direct appeals, petitioners have now filed motions to vacate their sentences pursuant to 28 U.S.C. § 2255, claiming ineffective assistance of their former trial and appellate counsel. The United States has filed a motion in each case requesting that the Court issue an order finding that petitioners have waived the attorney-client privilege with respect to their ineffective assistance of counsel claims, and authorizing petitioners' former counsel to disclose certain information to the government.[1] Petitioners Pierre, Straker, and Demerieux filed responses to the government's motion, asserting that the government's proposed order should be narrowed in certain respects, and requested a protective order limiting the use of communications between the government and petitioners' former counsel.[2] For the reasons explained below, the United States' motions for an order finding waiver of attorney-client privilege will be granted, but the government's proposed order will be modified as described below based on petitioners' arguments.

         I. LEGAL STANDARD

         It is well settled that when a habeas petitioner raises a claim of ineffective assistance of counsel, courts find a corresponding waiver of attorney-client privilege with respect to former counsel on matters necessary to decide the claim. See, e.g., United States v. Pinson, 584 F.3d 972, 978 (10th Cir. 2009) ("Given the ample, unanimous federal authority on point, we hold that when a habeas petitioner claims ineffective assistance of counsel, he impliedly waives attorney-client privilege with respect to communications with his attorney necessary to prove or disprove his claim."); United States v. Lewis, 824 F.Supp.2d 169, 172 (D.D.C.2011) ("[W]here a claim of ineffective assistance of counsel is asserted, there is an 'implied waiver' of the [attorney-client] privilege.") (alteration in original) (citing Bittaker v. Woodford, 331 F.3d 715, 719-20 (9th Cir. 2003)).

         The waiver of attorney-client privilege in situations involving claims of ineffective assistance of counsel is also addressed in Rule 1.6 of the District of Columbia Rules of Professional Conduct. D.C. Rule 1.6 states: "A lawyer may use or reveal client confidences or secrets .. . (3). .. to the extent reasonably necessary to respond to specific allegations by the client concerning the lawyer's representation of the client."[3] D.C. Rule of Prof 1 Conduct 1.6(e)(3); see also D.C. Bar Ethics Opinion No. 364 ("Ethics Op. 364"), Confidentiality Obligations When Former Client Makes Ineffective Assistance of Counsel Claim (2013).

         II. ANALYSIS

         Petitioners acknowledge that their claims of ineffective assistance of counsel operate as a waiver of the attorney-client privilege, but they argue that the waiver is limited, and the government's proposed order should be narrowed in certain respects. See Pet'r's Resp. to Mot. for Order (Pierre) at 1; Pet'r's Resp. to Mot. for Order (Straker) at 3; Pet'r's Resp. to Mot. for Order (Demerieux) at 1. Specifically, petitioners contend that: (1) the government's motion is premature, and the Court should police the scope of the waiver by conducting an in camera and ex parte review of specific communications before authorizing disclosure; (2) the government's proposed order is overbroad; (3) the government should be prohibited from having ex parte communications with petitioners' former counsel; and (4) a protective order should be entered to ensure that any privileged disclosures cannot be used against petitioners outside of this proceeding or any appeal thereof. The Court addresses these arguments sequentially below.

         A. In Camera and Ex Parte Review Prior to Disclosure

         Petitioners argue that it would be "premature for the Court to find that the attorney-client privilege has been waived with regard to any specific communications [between petitioners and former counsel]." Pet'r's Resp. to Mot. for Order (Straker) at 4; see also Pet'r's Resp. to Mot. for Order (Demerieux) at 1. Instead, citing Johnson v. Alabama, 256 F.3d 1156 (11th Cir. 2001), petitioners contend that a better procedure is to have former counsel submit presumptively protected communications by affidavit for the Court's and petitioners' in camera and ex parte review before allowing disclosure to the government. SeePet'r'sResp. to Mot. for Order (Straker) at 4-5; see also Pet'r's Resp. to Mot. for Order (Demerieux) at 2.

         The government responds that this approach "is virtually unprecedented in this jurisdiction." See Gov't's Reply (Straker, Pierre) [ECF No. 946] at 5. Petitioners have not cited any authority from this Circuit (nor is the Court aware of any) where a court has adopted this approach.[4] Moreover, neither D.C. Rule of Professional Conduct 1.6 nor Ethics Opinion 364- which addresses a lawyer's confidentiality obligations when a former client makes an ineffective assistance of counsel claim-appears to endorse such a procedure. D.C. Rule 1.6 permits former counsel to make disclosures to government counsel outside a court setting (and outside the supervision of current counsel) so long as the disclosures are "reasonably necessary to respond to specific allegations" of ineffectiveness. D.C. Rule of Prof 1 Conduct 1.6(e)(3); see also Ethics Op. 364 at 10 ("D.C. Rule 1.6(e)(3) permits a defense lawyer ... to make, without judicial approval or supervision, such disclosures of information protected by Rule 1.6 as are reasonably necessary to respond to the client's specific allegations about the lawyer's performance.") (emphasis added). Hence, the Court agrees with petitioner Demerieux's observation that"[t]he decision of disclosure is one the former counsel must make, after taking into account the various considerations set forth in Rule 1.6 and Ethics Opinion 364." Pet'r's Resp. to Mot. for Order (Demerieux) at 1. Accordingly, the Court declines to adopt petitioners' request for a preliminary in camera and ex parte review of communications with former counsel.

         B. Overbreadth of Government's Proposed Order

         Petitioners argue that the government's proposed order is overbroad in two ways. To begin with, they object to the government's order to the extent that it suggests that petitioners' former counsel are required to disclose privileged information to the government. See Pet'r's Resp. to Mot. for Order (Pierre) at 1-2; Pet'r's Resp. to Mot. for Order (Straker) at 1; Pet'r's Resp. to Mot. for Order (Demerieux) at 1-2 . In reply, the government agreed with petitioners on this point and emphasized that the government has only requested that the Court "merely 'authorize' disclosure of privileged communications, not mandate such disclosures." See Gov't's Reply (Straker, Pierre) at 5. D.C. Rule 1.6 makes it clear that "a lawyer may use or reveal client confidences or secrets . .. to the extent reasonably necessary to respond to specific allegations by the client concerning the lawyer's representation of the client." D.C. Rule of Prof 1 Conduct 1.6(e)(3) (emphasis added). Further, Ethics Opinion 364 provides that former counsel's decision to disclose is "permissive, not mandatory" and "the lawyer may choose not to respond because, for example, the lawyer may think the disclosure may harm the client, [or] the prosecutor already has the information necessary to respond to the claim." Ethics Op. 364 at 7. Hence, it is clear that former counsel are permitted, but not required, to disclose information to the government.

         Petitioners next object that the government's proposed order expansively requires former counsel to provide "any relevant documents in their possession" and to disclose "otherwise confidential or privileged information" if it simply "relates to the defendant's claims of ineffective assistance." Pet'r's Resp. to Mot. for Order (Pierre) at 3 (internal quotations omitted); see also Pet'r's Resp. to Mot. for Order (Straker) at 1, 3; Pet'r's Resp. to Mot. for Order (Demerieux) at 1- 2. Petitioners contend that this broad language encompasses not only attorney-client privileged information but also additional information that former counsel might otherwise have an ethical duty to keep confidential. D.C. Rule 1.6 protects not only privileged information (i.e., "confidences") but also "secrets" or "other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or .. . detrimental, to the client." Ethics Op. 364 at 2 (quoting D.C. Rule of Prof 1 Conduct 1.6(e)(3)). A lawyer's ethical confidentiality obligation under D.C. Rule 1.6 is not waived when a former client files an ineffective assistance of counsel claim. LI Rather, in response to an ineffective assistance claim, a lawyer's discretion to voluntarily reveal protected information is limited to the extent to which the disclosure is "reasonably necessary to respond to specific allegations by the [former] client concerning the lawyer's representation of the client." LI at 2 (alteration and emphasis in original) (quoting D.C. Rule of Prof 1 Conduct 1.6(e)(3)).

         The Court concludes that both of the petitioners' overbreadth concerns are sufficiently addressed by incorporating the "reasonably necessary" language from D.C. Rule 1.6 into the government's ...


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