Free Response to Motion - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona SHARON K. SEXTON Assistant U.S. Attorney Arizona State Bar No. 012359 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-04-358-PHX-DGC Plaintiff, v. Lawrence Jackson, Defendant. MOTION TO SUMMARILY DISMISS DEFENDANT'S MOTIONS FOR NEW TRIAL PURSUANT TO FED. R. CRIM. P. 33(b)(1) AND 2255 MOTION OR TO REQUEST FINDING OF WAIVER OF ATTORNEY/CLIENT PRIVILEGE

I. Overview. Defendant Jackson has filed a motion and memorandum pursuant to Fed. R. Crim. P. 33(b)(1) (CR 136). Defendant has also filed a Motion pursuant to Title 28 U.S.C. Section 2255. (CR 132, 133). Defendant has argued that a co-conspirator defendant, Clifford Smith, would have provided an alibi for defendant and that Clifford Smith wanted to testify on defendant's behalf. Defendant argues that his own attorney, John Rood, and defense attorney for Clifford Smith, Mike Smith, engaged in conduct that prevented Clifford Smith from testifying. Defendant has also argued that his attorney was ineffective for a number of reasons. Based upon defendant's motions, certain communications and other attorney records will likely be discoverable. In order for the United States to respond fully to defendant's allegation, the government must have the defendant waive his attorney-client and work product privileges in the areas covered by his allegations. Similarly, co-conspirator Clifford Smith must waive his attorney-client and work product privileges in the areas covered by the assertions in the motion.

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If defendant and Clifford Smith do not voluntarily waive these protections and defendant

2 continues to pursue claims that specifically call into question the conduct and competence of 3 prior counsel, then the Court needs to issue an order finding that the defendant's motion acts as 4 a partial waiver of the representation privileges involved with each lawyer. 5 After the privilege issue is resolved, the United States will need at least 90 days to respond

6 to defendant's motions. The reason for the additional time is so that law enforcement agents can 7 contact and interview Clifford Smith. Further, the motion will require reference to trial 8 transcripts. 9 II. Waiver of the Attorney/Client Privilege. 10 On October 12, 2007, the government sent defendant a letter, asking him whether he was

11 willing to waive his attorney/client privilege regarding the matters set forth in his motions. 12 (Exhibit A). Defendant responded, asserting that the government could discuss with trial 13 counsel whether defendant informed his attorney of his defense and alibi witnesses and that he 14 did not interview the witnesses or support defendant's alibi at trial. (Exhibit B). Defendant 15 specifically stated "I do not waive attorney/client privilege as to the substance of the 16 conversations/communications." The government cannot adequately respond to defendant's 17 allegations without discussing the "substance of conversations/communications" that occurred 18 between defendant and his trial attorney. 19 Assuming defendant Jackson does not consent to the waiver of the attorney-client privilege,

20 the Court must determine whether he has implicitly waived some portion of the privilege by 21 asserting claims regarding counsel's conduct. Generally, a litigant waives the attorney-client 22 privilege and work product protections by putting his lawyer's performance at issue in the 23 litigation. Bittaker v. Woodford, 331 F.3d 715, 718 (9th Cir. 2003) (en banc). The party 24 asserting the claim is said to have implicitly waived the privilege. Id. at 719. 25 Defendant's motion calls into question, among other things, his trial lawyer's conduct about

26 1.) The failure to call Clifford Smith, Tracy Jackson and Daniel Juan as witnesses in trial; 2.) 27 28
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1 Failure to pursue jurisdictional issues; 3.) Eliciting other act evidence; 4.) Failure to request a 2 limiting instruction; 5.) Failure to test DNA Evidence; and 6.) Ineffective assistance on appeal. 3 Defendant's pleading has put privileged information at issue. As set forth in Bittaker, a

4 court must direct the party holding the privilege to produce or waive the privileged materials if 5 the party wishes to go forward with the litigation. Id. at 720. If defendant wants to litigate the 6 claims in his motion, he must waive the privilege to the extent necessary to give the government 7 a fair opportunity to defend against the charges. Id.; see also, United States v. Amlani, 169 F.3d 8 1189, 1195 (9th Cir. 1999). 9 III. Scope of the Waiver. 10 The court must impose a waiver no broader than needed to ensure the fairness of the

11 proceeding. Bittaker, 331 F.3d at 720. After the contours of the waiver have been defined by 12 the court, the holder of the privilege may preserve the confidentiality of the privileged 13 communications by choosing to abandon the claims that give rise to the waiver. Id. at 721. 14 The proffered waiver by defendant is extremely limited in its scope and thus, the

15 government cannot adequately respond to defendant's motion with this limited waiver. The, the 16 government requests that the court decide the parameters of a sufficient attorney/client privilege 17 waiver, such that the government can appropriately respond. After the scope of the waiver is 18 defined, defendant can then decide whether he wants to proceed with his litigation. If defendant 19 still wants to pursue his claims in light of the waiver, the court will need to issue an order that 20 will allow the government to see the privileged communications and records, and conduct 21 interviews of defendant's previously retained and appointed counsel. 22 IV. Conclusion. 23 Defendant has spoken regarding his willingness to waive the attorney/client privilege. He

24 has clearly stated that he does not waive the privilege regarding the substance of conversations 25 and communications. The government cannot respond to the allegations without the waiver. 26 Thus, until such time as defendant desires to waive such privilege, the government requests that 27 the court dismiss defendant's motions. 28
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Alternatively, the United States requests that the court determine the scope of any implicit

2 waiver of the attorney-client privilege, both as to defendant Jackson and co-conspirator Clifford 3 Smith, and set forth the parameters of how that waiver will operate in regard to the discovery 4 of the records and thoughts of defendant's prior counsel. After the contours of the waiver and 5 discovery have been defined, the United States requests ninety (90) days in which to conduct 6 that discovery and respond to defendant's motions. 7 8 9 10 11 12 13 14 15 CERTIFICATE OF SERVICE I hereby certify that on October 24, 2007, I electronically transmitted the attached Respectfully submitted this 24th day of October, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/Sharon K. Sexton SHARON K. SEXTON Assistant U.S. Attorney

16 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice 17 of Electronic Filing to the following CM/ECF registrants and mailed one copy via U.S. Postal 18 Service to the defendant: 19 Anders Rosenquist 20 John Rood Michael J. Smith 21 Lawrence Jackson #82426-008 22 Federal Correctional Institution U.S. Penitentiary Pollock 23 P.O. Box 2099 Pollock, Louisiana 71467 24 25 s/Carol Strachan-Noonan 26 Carol Strachan-Noonan Legal Assistant 27 U.S. Attorney's Office 28
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