Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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DIANE J. HUMETEWA United States Attorney District of Arizona DANIEL R. DRAKE Assistant U.S. Attorney Arizona State Bar No. 3781 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America Plaintiff, v. Neil Rusty Bond, Defendant. The United States moves the Court to (1) find that defendant has waived the attorney-client privilege or is estopped to assert it in this matter because he claims ineffective assistance of counsel as a basis to vacate his conviction; (2) enter an order unsealing defense ex parte pleadings and ex parte hearing transcripts; and, (3) authorize defendant's trial and appellate counsel to disclose to the United States materials pertinent and responsive to defendant's claim so they may be used in this proceeding. This motion is based upon Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003), and the attached memorandum. Respectfully submitted this 8th day of July, 2008. DIANE J. HUMETEWA United States Attorney District of Arizona /s/Daniel R. Drake DANIEL R. DRAKE Assistant U.S. Attorney Motion to Find Attorney-Client Privilege Waived, Unseal Proceeding, and Authorize Disclosures CR 03-974-PHX-DGC CV 08-77-PHX-DGC (CRP)

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1 2 3 4 that defendant has, indeed, waived his attorney-client privilege as to them, and authorizing them 5 to discuss their representation, and to produce materials pertinent and responsive to defendant's 6 claims. As shown below, long-standing case law and the ethical rules applicable to lawyers 7 support the government's position. In accordand with the case law, the government has drafted 8 a proposed order broad enough to permit a response, but not so broad as to deter defendant from 9 pursuing the relief he seeks. 10 11 12 Factual Background Defendant Neil Rusty Bond ("Bond") filed a pro se Motion Under 28 U.S.C. § 2255 to MEMORANDUM Overview The government filed this Motion seeking an order advising Mssrs. Holtzen and Rosenquest

13 Vacate and Set Aside his sentence. He cites several grounds to support his motion. In various 14 styles he alleges that the trial judge took or failed to take actions that unfairly prejudiced 15 defendant, including denials of motions during ex parte proceedings, as well as matters that 16 would have been addressed in ex parte proceedings. (See Petition, p. 7, Ground Two, # 15; p.13, 17 Ground Four, ## 1, 3.) He also claims , inter alia, that he is entitled to relief because his trial 18 counsel, Timothy P. Holtzen, and appellate counsel, Anders V. Rosenquist rendered ineffective 19 assistance. Defendant cited numerous separate errors: 20 21 22 23 24 25 26 27 28 C Defendant cited 78 specific instances in which he alleged trial and appellate counsel rendered ineffective assistance of counsel, two of which pertain to appellate counsel, the balance to trial counsel. Many of the instances cited pertained to the alleged failure to subpoena certain witnesses or present particular evidence, presumably made known to trial counsel by defendant. C Several of trial counsel's alleged errors pertained directly to communications between defendant and trial counsel, including an alleged failure to maintain reasonable communications (Petition, p. 11, Ground Three, ## 45, 51, 57, and 60.)
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C Defendant contends appellate counselfailed to effectively assist movant throughout the direct appeal, presumably based upon circumstances known only to defendant and appellate counsel. (Petition, Ground Three, p. 12, # 74.) C Defense counsel filed ex parte motions and participated in ex parte hearings in which he sought court authority to retain and accountant and a CPA to assist in presenting a defense or mitigation. Those motions (Dckt. ## 143, 144, 152, 153) together with ex parte hearing transcripts, as well as other ex parte motions and hearings presently unknown to government counsel, are pertinent to determination of the claims made by defendant. Defendant claims the trial judge improperly denied his motion for

appointment of a CPA to help at trial (Petition, p. 7, Ground Two, # 15), however, the motion and any discussion do not appear of record, only the ruling. (Dckt. # 88.) C Defendant and his counsel held an ex parte hearing with the trial judge on the first day of trial, March 31, 2005. That hearing apparently pertained to defendant's efforts to have a new attorney appointed to represent him, according to his Petition. (Petition, p. 13, Ground Four, # 3.)

16 Defendant and his counsel are likely the only witnesses who could testify to those matters, which 17 would be covered under the attorney-client priviledge. Defense counsel may wish to respond 18 to additional points raised by defendant and, in the process, might wish to touch upon 19 discussions had with defendant concerning legal advice or decisions, or factual investigation.. 20 Under the circumstances of defendant's claim, the United States must defend the adequacy

21 of representation by counsel. Mssrs. Holtzen and Rosenquist, because of their unique and 22 sometimes privileged knowledge, would be key witnesses in that defense, and perhaps the only 23 ones who could directly refute defendant's claims. 24 25 26 courts that, where a habeas corpus petitioner claims ineffective assistance of counsel, he waives 27 28
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Claim of Ineffective Assistance of Counsel Waives the Attorney-Client Privilege The Ninth Circuit Court of Appeals observed that it has long been the rule in the federal

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1 the attorney-client privilege as to all communications with his allegedly ineffective lawyer. 2 Bittaker v. Woodford, 331 F.3d 715, 718-9 (2003)(citing Hunt v. Blackburn, 128 U.S. 464 3 (1888)). The Arizona Ethical Rules contain a similar provision that, by filing his claim, 4 defendant released defense counsel under ER 1.6(d)(4) from the silence the privilege otherwise 5 imposes. The Ethical Rule permits the lawyer to reveal confidential information. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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(d) A lawyer may reveal such information relating to the representation of a client to the extent the lawyer reasonably believes necessary: ...(4) to respond to allegations in any proceeding concerning the lawyer's representation of the client. 17A A.R.S. Sup. Ct. Rules, Rule 42, Rules of Prof. Conduct, ER1.6(d)(4). This Court should find that defendant waived the privilege when he filed his motion claiming ineffective assistance of counsel and authorize Mssrs. Holtzen and Rosenquist to disclose matters responsive to defendant's claims, matters previously protected by the attorney-client privilege.

The Scope of the Waiver is Limited In Bittaker the Ninth Circuit addressed the scope of the habeas petitioner's waiver of the attorney-client privilege. 331 F.3d at 716-7. The Court of Appeals reasoned the waiver should be broad enough to permit the use of privileged communications in adjudicating the ineffective assistance of counsel claims. 331 F.3d at 722. To hold otherwise would permit the privilege to be used both as a shield and as a sword, something simple concepts of fairness should prevent. 331 F.3d at 719. The scope of the waiver should not be so broad, however, as to create the Hobson's Choice criticized in Simmons v. United States, 390 U.S. 377, 394 (1968). A defendant should not be forced to choose, the Court of Appeals said, between asserting ineffective assistance of counsel on the one hand­with the risk that every statement he made to his first lawyer could be used at the retrial were his challenge successful­and, on the other hand, giving up the ineffective assistance claim to preserve the privilege. Bittaker, 331 F.3d at 724. This Court need not reach that precise point because, as the dissent in Bittaker noted, there is no controversy yet regarding

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1 the admissibility of evidence obtained in this proceeding in some potential future proceeding. 2 331 F.3d at 730, n.3. Moreover, the government proposes a protective order that would 3 authorize disclosure and use of any privileged information solely for the purposes of litigating 4 the claims of defendant's Motion. 5 6 7 counsel at trial. The scope of the waiver need only be broad enough to permit fair litigation of 8 those claims. 9 The United States has prepared a draft order determining that defendant has, indeed, waived 10 the attorney-client privilege as it pertains to this proceeding. The draft order further authorizes 11 defendant's trial counsel, Timothy P. Holtzen, and his appellate counsel, Anders V. Rosen quist, 12 to consult with government counsel and produce documents and other tangible objects pertinent 13 or responsive to defendant's claim so the government can adequately dispute defendant's claim. 14 Finally, the draft order provides that the information and materials so disclosed may be used only 15 for litigating the claims presented in defendant's Motion pending before this Court, pending 16 further order of the Court. 17 18 19 20 21 22 23 24 25 26 27 28
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Conclusion and Proposed Order Defendant has waived the attorney-client privilege by claiming ineffective assistance of

RESPECTFULLY SUBMITTED this 8th day of July, 2008.

DIANE J. HUMETEWA United States Attorney District of Arizona /s/Daniel R. Drake DANIEL R. DRAKE Assistant U.S. Attorney

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I hereby certify that on July 8, 2008, I electronically transmitted the attached document to the Clerk's Office using the ECF system for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Timothy P. Holtzen And by regular mail to: Neil Rusty Bond, #81400008 Federal Prison Camp - LaTuna PO Box 8000 Anthony, N.M. 88021-9899 Anders V. Rosen quist 80 E Columbus Phoenix, AZ 85012 /s/ Daniel R. Drake Daniel R. Drake

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