United States District Court, D. Nevada
W. MYHRE Acting United States Attorney, PETER S. LEVITT
Assistant United States Attorney Attorneys for United States
Abell Pro se Defendant
GOVERNMENT'S APPLICATION FOR AN ORDER DEEMING THE
ATTORNEY-CLIENT PRIVILEGE WAIVED
M. NAVARRO, CHIEF JUDGE.
United States of America, by and through undersigned counsel,
respectfully requests that this Court enter an order deeming
the Defendant's attorney-client privilege in the
above-captioned case waived with respect to Leslie Park, Esq.
This order is sought for the following reasons:
After the jury found Abell guilty of Attempted Coercion and
Enticement of a Minor under 18 U.S.C. § 2422(b), this
Court imposed sentence (ECF No. 112) (Mar. 20, 2014), Abell
appealed, and, on July 27, 2015, the Ninth Circuit issued a
memorandum opinion rejecting Abell's assignments of error
and affirming his conviction and sentence. ECF No. 136.
February 3, 2017, Abell filed a motion pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct sentence by a
person in federal custody. ECF No. 141. The Court ordered the
government to respond by June 22, 2017. ECF No. 144.
his motion, Abell raises several allegations of ineffective
assistance of his trial attorney, Ms. Park. He contends, for
example, that his attorney: 1) “never discussed”
the effect of the Sentencing Guidelines in the context of a
negotiated plea agreement (ECF No. 141 at 5, ¶17(a)(1));
2) failed to introduce evidence that Abell “believe[s]
. . . would have been favorable” (id. at 6,
¶17(b)(1)); 3) failed to discover allegedly exculpatory
evidence (id. at 7, ¶17(c)(1)); and 4)
“deliberately lie[d]” about the possibility of
having Abell's son testify at trial. Id. at 8,
¶17(d)(1)); see also id. at 9-10 (asserting
ineffective “fail[ure] to object” and
“cruel and unusual punishment”).
Access to information from Abell's former trial counsel
is necessary to appropriately respond to the allegations
contained in the § 2255 motion.
government therefore requests that this Court issue an order
deeming the attorney-client privilege in the above-captioned
case waived for the purposes of this proceeding as to the
contentions in Abell's motion regarding trial
counsel's actions and communications with him, and
ordering all materials and information related thereto be
divulged to the government.
Abell's voluntary disclosure of privileged communications
with Ms. Park constitutes a waiver of the privilege as to all
other such communications on the same subject. See, e.g.,
Weil v. Investment/ Indicators, Research &
Management, 647 F.2d 18, 24 (9th Cir. 1981); Clady
v. County of Los Angeles, 770 F.2d 1421, 1433 (9th Cir.
1985), cert. denied, 475 U.S. 1109 (1986).
Even when a party does not explicitly disclose the content of
an attorney-client communication, he may waive the privilege
implicitly. A person cannot always claim that he relied on
counsel, while protecting what was said between them from
disclosure. As we have said, “The privilege which
protects attorney-client communications may not be used both
as a sword and a shield. Where a party raises a claim which
in fairness requires disclosure of the protected
communication, the privilege may be implicitly waived.”
United States v. Ortland, 109 F.3d 539, 543 (9th
Cir.), cert. denied, 522 U.S. 851 (1997); see
also Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir.
2003) (“[W]here a habeas petitioner raises a claim of
ineffective assistance of counsel, he waives the
attorney-client privilege as to all communications with his
allegedly ineffective lawyer.”) (citing Wharton v.
Calderon, 127 F.3d 1201, 1203 (9th Cir. 1997)).
Abell is currently incarcerated, with a projected release
date of June 10, 2020.
based on the foregoing, the government respectfully requests
that the attorney-client privilege in 2:11-cr-354-GMN-GWF be
deemed waived as to those matters Defendant has put at issue
in his motion to vacate, set aside or correct sentence.
Further, the government respectfully requests that this Court
order Ms. Park to provide the government with an affidavit or
declaration, as well as any relevant materials and