UNITED STATES OF AMERICA v. ANDERSON STRAKER, WAYNE PIERRE, RICARDO DE FOUR, ZION CLARKE, KEVIN NIXON, KEVON DEMERIEUX,
Criminal Action No. 06-102 (JDB)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
July 10, 2017
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
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
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
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’l 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.
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’l 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–
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 proposed order.5 Hence, that will be done here.
C. Ex Parte Communications with Former Counsel
Petitioners also argue that the government should be prohibited from ex parte communications with petitioners’ former counsel, outside the supervision of petitioners’ current counsel. See Pet’r’s Resp. to Mot. for Order (Straker) at 6–7; Pet’r’s Resp. to Mot. for Order (Demerieux) at 1–2. In support of this argument, petitioners rely on an Opinion issued by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility interpreting Model Rule 1.6, which states as follows:
It is highly unlikely that a disclosure in response to a prosecution request, prior to a court-supervised response by way of testimony or otherwise, will be justifiable. It will be rare to confront circumstances where trial counsel can reasonably believe that such prior, ex parte disclosure, is necessary to respond to allegations against the lawyer.
ABA Comm’n on Ethics & Prof’l Responsibility, Formal Op. 10-456, at 5 (2010). However, this ABA Opinion is not binding on this Court, interpreted Model Rule 1.6 (which is different than D.C. Rule 1.6) and is contrary to the controlling ethics opinion from this jurisdiction. See Ethics Op. 364 at 1 (“[T]he Model Rule allows disclosure of protected information only in the context of an actual or contemplated proceeding, while the D.C. Rule allows such disclosure . . . regardless of whether a proceeding is pending or even contemplated.”); see also
D. Protective Order
Finally, petitioners argue that a protective order should be entered limiting the use of any privileged communications that are disclosed to the instant proceeding and any appeal. See Pet’r’s Resp. to Mot. for Order (Pierre) at 5–6; Pet’r’s Resp. to Mot. for Order (Straker) at 7–9. The Court takes seriously the concerns underlying petitioners’ request and acknowledges that the misuse of privileged communications could result in prejudice to petitioners in a future proceeding. There appears to be little case law on this issue and no D.C. Circuit law on point. Ethics Opinion 364 and D.C. Rule 1.6 both appear to endorse the use of protective orders. See Ethics Op. 364 at 1 (“Where appropriate, the lawyer should take steps, such as seeking a judicial protective order . . . to limit the use of such disclosures to the [ineffective assistance of counsel] proceeding”); D.C. Rule of Prof’l Conduct 1.6, cmt. 21 (“[D]isclosure [under Rule 1.6] should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.”).
As petitioners explain, courts in other jurisdictions have endorsed the use of protective orders to prevent prosecutors from using information obtained during the adjudication of an ineffective assistance of counsel claim in a subsequent prosecution of the petitioner. In Bittaker, for example, the Ninth Circuit affirmed a protective order prohibiting the use of privileged attorney-client materials obtained in discovery for any purpose other than litigating the federal habeas petition. Bittaker v. Woodford, 331 F.3d 715, 728 (9th Cir. 2003). The court reasoned that:
[i]f a prisoner is successful in persuading a federal court to grant the writ, the court should aim to restore him to the position he would have occupied, had the first trial been constitutionally error-free. Giving the prosecution the advantage of obtaining the defense casefile—and possibly even forcing the first lawyer to testify against the client during the second trial—would assuredly not put the parties back at the same starting gate.
Id. at 722–23; see also Lambright v. Ryan, 698 F.3d 808, 818 (9th Cir. 2012) (explaining that the district court had a duty to enter a protective order and noting that petitioner’s attorney-client privilege waiver is narrow and does not extend beyond the adjudication of the ineffectiveness claim in the federal habeas proceeding); United States v. Nicholson, 611 F.3d 191, 217 (4th Cir. 2010) (applying Bittaker to preclude the use at resentencing of privileged material revealed in connection with the successful ineffective assistance of counsel claim).
The government relies on one case to oppose petitioners’ request that seems less on point than the cases cited by petitioners. See Gov’t’s Reply (Straker, Pierre) at 4 (citing United States v. Suarez, 820 F.2d 1158 (11th Cir. 1987)). In Suarez, the Eleventh Circuit held that once plea counsel testified at a pretrial hearing to withdraw a guilty plea with his former client’s consent and pursuant to an express waiver of the attorney-client privilege, the attorney-client privilege could not bar his testimony on the same subject at trial because his testimony was already in the public domain pursuant to an initial waiver of privilege. 820 F.2d at 1160–61. The appellant in Suarez argued that the case was controlled by the rationale expressed in Simmons v. United States, 390 U.S. 377 (1968), a case where the Supreme Court recognized that a defendant who knows that his testimony could be used against him in future proceedings may be deterred from presenting the testimonial proof necessary to prevail on his claim. See Suarez, 820 F.2d at 1161; see also Simmons, 390 U.S. at 394 (“[W]e find it intolerable that one constitutional right should have to be surrendered in order to assert another.”). But the Eleventh Circuit found that because appellant did not present the Simmons rationale to the district court as a basis to object to his plea counsel’s
Although there is no D.C. Circuit law on point, cases from other circuits and the governing ethics authority in this jurisdiction support petitioners’ request to limit the use of the disclosed information to the ineffective assistance proceeding, including any appeal. The Court will accordingly modify the language in the government’s proposed order to make this limitation clear. Finally, in its proposed order the government requests that this limitation not preclude the government from prosecuting the petitioners for perjury should it be provided with proof of perjury in this § 2255 proceeding. Petitioner Straker does not squarely address this request, and neither petitioner Pierre nor petitioner Demerieux offers more than a conclusory statement that it should not apply. The Court will therefore maintain this provision of the government’s proposed order, but make clear that privileged communications may not be utilized in any such prosecution.
III. CONCLUSION
For the reasons explained above, the Court:
- finds that the petitioners waived the attorney-client privilege when they filed motions pursuant to
28 U.S.C. § 2255 alleging ineffective assistance of counsel by former trial and appellate counsel; and - concludes that the District of Columbia Rules of Professional Conduct, particularly Rule 1.6(e)(3), permit petitioners’ trial and appellate counsel, and any other person acting on the petitioners’ behalf in this case, to disclose to government counsel information that is reasonably necessary to respond to the petitioners’ specific allegations of ineffective assistance, even if there might otherwise be a duty to keep such information confidential.
/s/
JOHN D. BATES
United States District Judge
Dated: July 10, 2017