INGALLS v. United States
1:15-cv-05495
D.N.J.Aug 9, 2017Background
- Michael A. Ingalls, Jr. pled guilty in May 2013 to conspiracy to commit bank fraud (18 U.S.C. § 1349) and theft of mail (18 U.S.C. § 1708) and was sentenced in January 2014 to concurrent terms (100 months and 60 months) with supervised release and restitution.
- Ingalls appealed the sentencing calculation (disputing inclusion of a 1995 conviction in Criminal History Category); the Third Circuit affirmed. United States v. Ingalls, 604 F. App'x 156 (3d Cir. 2015).
- In July 2015 Ingalls, through counsel, filed a § 2255 petition claiming the PSR used incorrect sentencing-date facts that improperly included the 1995 conviction; the Court denied the petition and denied a certificate of appealability in January 2016.
- Ingalls then filed a pro se motion (March 2016) claiming (1) his counsel, Sufrin, had filed the first § 2255 petition without his knowledge or consent and (2) that he had submitted his own amendment on December 14, 2015 adding an ineffective-assistance claim that was never docketed.
- The Court treated the allegation of an unauthorized counseled filing as potentially warranting relief under Rule 60(b)(6) if true, ordered counsel to respond, and received sworn certifications from counsel (Sufrin and Wixted). Court record searches found no December 2015 filing by Ingalls.
- The Court concluded that by raising ineffective-assistance and unauthorized-filing claims Ingalls waived attorney-client privilege and related work-product protection as to communications on those issues, and ordered counsel to produce the listed correspondence under seal and Ingalls to produce any evidence he composed/submitted his December 14, 2015 amendment — all due within 14 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the counseled § 2255 petition was filed without Ingalls's knowledge/consent (potential basis for Rule 60(b)(6) relief) | Ingalls: Sufrin filed the first § 2255 without his knowledge; Ingalls had separately submitted an amendment Dec. 14, 2015 | Counsel: No record of any pro se amendment; counsel denied unauthorized filing | Court found the allegation sufficient to investigate; ordered counsel to produce correspondence and Ingalls to produce evidence of his Dec. 14, 2015 filing for the Court to resolve the factual dispute |
| Whether Ingalls waived attorney-client privilege and work-product protections by alleging ineffective assistance and unauthorized filing | Ingalls: raised these claims, triggering inquiry | Counsel: normally privilege protects communications; but waiver occurs if client places communications at issue | Court held Ingalls waived privilege/work-product regarding communications bearing on the asserted ineffective-assistance and unauthorized-filing issues, and ordered production (under seal) of the listed correspondence |
| Scope and handling of privileged materials produced | Ingalls: no objection to production; seeks protection for unrelated privileged material | Counsel: may be concerned documents contain unrelated privileged portions | Court allowed filing under seal to protect portions beyond the waiver scope and limited waiver to communications relevant to the asserted claims |
| Procedural time frame for submissions | Ingalls: requested relief and evidence to support his claim | Counsel/US: responded by certification; United States did not take a position on pro se motion | Court ordered both sides to submit the required documents within 14 days to allow resolution of the factual question underlying possible Rule 60(b) relief |
Key Cases Cited
- United States v. Pinson, 584 F.3d 972 (10th Cir. 2009) (discussing waiver of attorney-client privilege when defendant asserts ineffective-assistance claims)
- Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir. 1994) (limitations and effect of waiver of attorney-client privilege)
- Johnson v. Alabama, 256 F.3d 1156 (11th Cir. 2001) (waiver limited to communications bearing on strategic choices at issue)
- In re Grand Jury Subpoena, 745 F.3d 681 (3d Cir. 2014) (attorney and client control assertions and waivers of privilege over work product)
- In re Grand Jury Subpoena, 599 F.2d 1224 (3d Cir. 1979) (work-product protection may be overcome by a showing of good cause)
- United States v. Ingalls, [citation="604 F. App'x 156"] (3d Cir. 2015) (affirming sentencing calculation challenged by Ingalls)