United States District Court, D. Nevada
ELIESON UNITED STATES ATTORNEY
ELIZABTH O. WHITE APPELLATE CHIEF AND ASSISTANT UNITED STATES
GOVERNMENT'S MOTION FOR AN ORDER DEEMING THE
ATTORNEY-CLIENT PRIVILEGE WAIVED AND FOR A REVISED BRIEFING
motion to vacate her convictions and sentence, Defendant Eve
Mazzarella alleges that attorneys Douglas Mitchell and E.
Robert Wallach provided constitutionally ineffective
assistance. This Court ordered the government to respond to
Mazzarella's motion, but to address that specific
allegation, the government needs information from Mitchell
and Wallach. The government accordingly seeks an order
allowing it to obtain that information.
Eve Mazzarella 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. 700. In her motion-and in the
177-page memorandum of law that accompanied her motion,
see ECF No. 207- Mazzarella accuses her trial
attorneys of providing constitutionally ineffective
assistance based. See ECF No. 700, at 7-16; ECF No.
701, at 76-145. Her motion and memorandum include numerous
accusations of deficient performance, including (among many
others) 1) that Wallach “steered this case in the
disastrous direction of a trial in order to cash in on [the]
$250, 000 trial fee, ” ECF No. 701, at 76; 2) that her
attorneys grossly misrepresented the possible consequences of
convictions, id. at 77; 3) that her attorneys did
not explain the sentencing guidelines to her, id. at
79; 4) that they failed to effectively cross-examine the
government's witnesses, id. at 82; 5) that they
failed to introduce evidence that, Mazzarella claims, would
have created reasonable doubt, id. at 93; 6) that
they “failed to rebut false testimony, ”
id. at 97; 7) that they failed to introduce evidence
to support an advise-of-counsel instruction, id. at
125; and 8) that they failed to request use immunity for a
certain witness, id. at 132; and 9) that they failed
to call Mazzarella to testify. Id. at 133.
October 24, 2018, this Court issued an order directing the
government to response to Mazzarella's motion within 21
days, i.e., by November 14, 2018. ECF No. 706.
Points and Authorities
has long been the rule in the federal courts that, where 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.”
See Bittaker v. Woodford, 331 F.3d 715, 716 (9th
Cir. 2003) (citing Wharton v. Calderon, 127 F.3d
1201, 1203 (9th Cir. 1997)). “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) (citations
omitted). Mazzarella's motion and memorandum include
numerous accounts of conversations she allegedly had with her
attorneys and advice they alleged provided, or failed to
provide to her. To response to Mazzarella's accusations,
the government needs to hear Mitchell's and Wallach's
side of the story.
reasonable tactical choice based on an adequate inquiry is
immune from attack under Strickland.”
Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th Cir.
1997); see also United States v. Quintero-Barraza,
78 F.3d 1344, 1348 (9th Cir. 1996) (Defense counsel's
actions are not considered deficient when made for tactical
and strategic reasons that were not “outside the wide
range of professionally competent assistance”).
Mazzarella's motion and memorandum include numerous
complaints about actions her attorneys took, or did not take,
at trial. To response to those accusations, the government
needs to hear Mitchell's and Wallach's explanations
for why they did or did not take those actions, and whether
their decision were reasonable tactical or strategic choices.
based on the foregoing, the government respectfully requests
that the attorney-client privilege in 2:08-CR-64-JCM be
deemed waived as to the above-referenced matters, which
Mazzarella put at issue in her motion to vacate, set aside,
or correct sentence. The government respectfully request that
this Court order Mr. Mitchell and Mr. Wallach to provide the
government, within 60 days after the date of the Court's
order, affidavits or declarations, as well as any relevant
materials and information, addressing whether the allegations
in Mazzarella's motion and memorandum. The government
further requests that it be granted an additional 60 days,
after receiving Mr. Mitchell's and Mr. Wallach's
affidavits or declarations, to file its response to
Mazzalrella's 2255 motion.
upon the pending motion of the government, and good cause
appearing, IT IS HEREBY ORDERED that the attorney-client
privilege in 2:08-CR-64-JCM between the Defendant, Eve
Mazzarella; and attorneys Douglas Mitchell, Esq. and Robert
Wallach, Esq., shall be deemed waived for purposes relating
to Mazzarella's motion under 28 U.S.C. § 2255 to
vacate, set aside or correct her sentence. Mr. Mitchell and
Mr. Wallach shall, within 60 days of this order, each provide
the government with an affidavit or declaration addressing
the allegations of ineffective assistance of counsel raised
in Mazzarella's motion. Further, Mr. Mitchell and Mr.
Wallach may communicate with government counsel and provide
supporting documentation regarding all matters put at issue
in Mazzarella's motion.
government shall have an additional 60 days, after receiving
Mr. Mitchell and Mr. Wallach's affidavits or
declarations, to file ...