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Joseph v. United States

United States District Court, D. Utah

May 9, 2019

GABRIEL JOSEPH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER WAIVING ATTORNEY-CLIENT PRIVILEGE

          Jill N. Parrish United States District Court Judge

         Gabriel Joseph filed a petition to vacate the criminal judgment entered against him. Before the court is the Government's motion for an order waiving Joseph's attorney-client privilege to the extent that the arguments in his petition rely upon communications with his attorneys. [Docket 4]. The court GRANTS the Government's motion.

         Joseph was convicted of two counts of wire fraud, one count of money laundering, one count of making a false statement to a bank, and one count of willfully failing to file a tax return. He filed the current petition to vacate his conviction, arguing that his trial counsel, Richard Mauro, was ineffective. Joseph asserts that Mauro was ineffective for a number of reasons. One of the arguments that Joseph makes is that Mauro was ineffective because he failed to properly investigate and assert an advice of legal counsel defense. He contends that attorney Douglas Matsumori advised him that the transactions that formed the basis of his conviction were legal. Joseph also asserts that attorney Joseph Thibodeau advised him not to file a tax return.

         The Government moved for an order confirming a limited waiver of Joseph's attorney-client privilege in relation to his communications with Mauro, Matsumori, and Thibodeau. Joseph concedes that he has waived his attorney-client privilege for his communications with Mauro. But he argues that he has not waived his attorney-client privilege for his communications with Matsumori and Thibodeau. Joseph contends that because he has provided verified statements in his petition as to what Matsumori and Thibodeau told him, there is no need to interview these attorneys. Joseph further argues that if the court deems that he waived his privilege, the Government should only be able to ask Matsumori and Thibodeau generally whether they provided legal advice regarding the structure of real estate transactions and tax issues. Joseph argues that the Government should not be allowed to ask these attorneys about the specific advice they gave to Joseph.

         “When a habeas petitioner claims that he received ineffective assistance of counsel, he puts communications between himself and his attorney directly in issue, and thus by implication waives the attorney-client privilege with respect to those communications.” United States v. Pinson, 584 F.3d 972, 977-78 (10th Cir. 2009). Thus, it is black letter law that a petitioner waives the attorney-client privilege for communications with the defense attorney who allegedly provided ineffective assistance. Id. The question before the court is whether a habeas petitioner also waives this privilege in relation to attorney communications that would support an advice of legal counsel defense when the petitioner argues that his trial attorney was ineffective for not pursuing this defense. The court answers in the affirmative.

         In order to prevail on his ineffective assistance of counsel argument, Joseph must show that his trial counsel's performance was deficient and “that the deficient performance prejudiced the defense.” See Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, Joseph has the burden of proving “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In other words, Joseph must show that if his trial attorney had asserted an advice of counsel defense and presented evidence of statements made by Matsumori and Thibodeau at trial, there is a reasonable probability that the jury would not have found him guilty on at least one of the five counts for which he was convicted.

         The persuasiveness of the unasserted advice of counsel defense rests upon the evidence that both Joseph and the Government could have presented at trial regarding the advice that Matsumori and Thibodeau gave to Joseph. Thus, Joseph placed his communications with Matsumori and Thibodeau at issue by arguing that his trial counsel neglected to present a valid advice of counsel defense. He therefore waived his attorney-client privilege for these communications See Pinson, 584 F.3d at 978 (“[W]e 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.”).

         Permitting Joseph to argue that his conviction should be vacated because his trial attorney ignored a persuasive advice of counsel defense, while also allowing him to assert the attorney-client privilege to prevent the Government from challenging the viability of this defense, “would violate the well-established principle that ‘attorney-client communications cannot be used both as a sword and a shield.'” Seneca Ins. Co. v. W. Claims, Inc., 774 F.3d 1272, 1277-78 (10th Cir. 2014) (holding that a civil litigant may not assert an advice of counsel defense “while excluding the contents of that advice”). The court therefore rules that Joseph has waived his attorney-client privilege as to communications with Mauro, Matsumori, and Thibodeau to the extent that these communications are relevant to the arguments made in his petition. Accordingly, the court GRANTS the Government's motion for entry of an order waiving the attorney client privilege. [Docket 4].

         IT IS THEREFORE ORDERED that to maintain his attorney-client privilege with Mauro, Matsumori, and Thibodeau, defendant Joseph shall, within 14 days of the date of this Order, file a notice withdrawing his § 2255 petition.

         IT IS FURTHER ORDERED that if defendant Joseph fails to withdraw his § 2255 petition within 14 days, the attorney-client privilege is deemed waived as to all communications between Joseph and Mauro, Matsumori, and Thibodeau that relate to the ineffective assistance claims raised in his 2255 petition. Specifically, the court orders that Joseph shall waive attorney-client privilege with Mauro, Matsumori, and Thibodeau as to any and all communications (both oral and written), as well as work product, impressions, opinions, thoughts, concerns, perceptions, ideas, decisions, strategy development, inquiries, and investigations regarding the following:

         • Petitioner's communications “to his trial counsel that he needed to interview other possible defense witnesses, including

o Russell C. Skousen (regarding, inter alia, reliance on counsel, good faith regarding the structuring of the real estate transaction);
o Claud R. Koerber (regarding, inter alia, evidence related to accuracy and good faith of loan applications, relationship with Founders Capital and promissory notes, good faith related to structure of real estate transactions and equity milling, and reliance on written legal opinions from law firms and attorneys);
o Katie Adams (regarding testimony of government witness Brandon Adams, and Mr. Joseph's prior agreements with Mr. Adams for structuring related LLCs, the real estate purchases at issue in this matter, and the commitment to seeking, obtaining and following legal advice at each step);
o Other possible witnesses, to enable Joseph to put on a full defense, including a factual innocence defense related to his truthful and good faith statements of income, assets, etc.” Petitioner's 2255 Motion at 5-6

         • Whether Petitioner Joseph should testify. Id. at 6

         • The defense strategy to “blame the bank and … blame ...


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