United States v. Gonzalez

• Decision Date: 25 January 2012
• Docket Number: No. 11–15025.,11–15025.
• Citation: 2012 Daily Journal D.A.R. 1008,669 F.3d 974,12 Cal. Daily Op. Serv. 997
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Luis Alberto GONZALEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 997

2012 Daily Journal D.A.R. 1008

669 F.3d 974

UNITED STATES of America, Plaintiff–Appellee,

v.Luis Alberto GONZALEZ, Defendant–Appellant.

No. 11–15025.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 15, 2011.Filed Jan. 25, 2012.

Daniel P. Blank, Assistant Federal Public Defender, San Francisco, CA, for the defendant-appellant.

Robert David Rees, Assistant United States Attorney, San Francisco, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California, William Alsup, District Judge, Presiding. D.C. No. 3:06–cr–00710–WHA–2.Before: MICHAEL DALY HAWKINS and MILAN D. SMITH, JR., Circuit Judges, and KEVIN THOMAS DUFFY, District Judge.^*

OPINION

HAWKINS, Senior Circuit Judge:

In this interlocutory appeal, Luis Alberto Gonzalez (“Gonzalez”) challenges an order denying his motion to quash a subpoena in a section 2255 ¹ habeas proceeding brought by his wife, Katherine Elizabeth Paiz (“Paiz”). Gonzalez and Paiz were convicted in separate trials of fraud arising from an insurance scam involving Paiz's car. The car was found burned in a field with a gas can in the backseat shortly after the pair discovered the car needed several thousand dollars of repairs not covered by warranty, and ten days after Paiz took out an insurance policy on the vehicle. Although both separately confessed to the fraud, Paiz claimed she had no knowledge that fire would be used to destroy the car. Gonzalez initially told FBI agents that he had burned the car but that his wife knew nothing about it. The trial court severed the trials when Gonzalez announced he intended to testify at his wife's trial regarding the use of fire count (which carried a mandatory minimum ten-year sentence). See 18 U.S.C. § 844(h).

However, shortly before his own trial, Gonzalez indicated his defense would be that he had nothing at all to do with the crime and that he had lied to the FBI about his involvement to protect his wife. He was convicted of three fraud counts, but acquitted of the use of fire count, and sentenced to ninety-six months in prison.

Paiz's attorney, Nina Wilder (“Wilder”) ultimately decided not to call Gonzalez as a witness at Paiz's trial. Paiz was convicted on all counts, and sentenced to 121 months in prison. In her section 2255 petition, Paiz now alleges that Wilder provided ineffective assistance of counsel by failing to call Gonzalez as a witness. Gonzalez intervened to seek quashal of the subpoenas directed at Wilder on the basis of a joint defense privilege.

FACTS AND PROCEDURAL HISTORY

In September 2010, Paiz filed a motion in district court to set aside her conviction for ineffective assistance of counsel. One of her claims was that Wilder was ineffective for failing to call Gonzalez as an exculpatory witness.

The government sought a deposition subpoena and subpoena duces tecum for Wilder. It specifically sought discovery regarding Wilder's statements to the district court during an ex parte hearing, including communications Wilder had received from Gonzalez's counsel around that time, relating to Gonzalez's potential testimony at Paiz's trial. The court granted the motion and directed that the deposition proceed.

Gonzalez filed an emergency motion to quash or modify the subpoenas on the basis of a joint defense privilege. His counsel submitted a declaration claiming that he and Wilder had “met and discussed confidential information related to trial preparation” and that although there was no written joint defense agreement (“JDA”), these communications were “for the purpose of preparing a joint defense strategy” and the “clear understanding was that such communications were privileged.”

The district court ordered that the deposition of Wilder go forward, but provided that counsel for Gonzalez and Paiz could attend and object to questions that they believed were privileged. The court also imposed a protective order limiting the use of any disclosed material to litigating Paiz's section 2255 motion.

During the deposition, Gonzalez's counsel objected to several questions on the basis of the joint defense privilege, and Wilder also frequently claimed that questions called for protected information. Like Gonzalez's counsel, Wilder indicated there was no written JDA, but an “implied agreement.” At the deposition, Wilder reasoned: “We understood between ourselves that everything we said would be confidential,” and “[w]e agreed there would be a joint defense and that we would share information.”

After additional briefing, the district court issued an order denying the motions to quash, holding that “when a claim of ineffective assistance of counsel is asserted in a collateral challenge to a conviction, all information to and from trial counsel plausibly relevant to the alleged acts or omissions is discoverable.” United States v. Paiz, No. CR 06–710 WHA, 2010 WL 5399216, at *1 (N.D.Cal. Dec. 23, 2010). The court concluded that even assuming a JDA existed, Gonzalez's joint defense privilege must yield to the discovery needs created by Paiz's ineffective assistance claim. The court ordered Wilder's deposition to continue and that she answer all relevant questions posed to her, but stayed the order pending this interlocutory appeal. Id. at *12. We now reverse and remand to the district court. ²

STANDARD OF REVIEW

A district court's conclusions whether information is protected by attorney-client privilege is a mixed question of law and fact which this court reviews de novo. United States v. Richey, 632 F.3d 559, 563 (9th Cir.2011).

DISCUSSION

I. The Joint Defense Privilege

The joint defense privilege was first recognized by our court in Continental Oil Co. v. United States, 330 F.2d 347 (9th Cir.1964). Employees of two different oil companies had been summonsed to testify before the Grand Jury; each was interviewed by their respective counsel. Counsel then prepared memoranda about the information received and “exchanged such memoranda in confidence in order to apprise each other as to the nature and scope of the inquiry proceeding before the Grand Jury” and “to make their representation of their clients in connection with the Grand Jury investigation and any resulting litigation, more effective.” Id. at 348–49. When the government later sought to discover these memoranda, asserting that the attorney-client privilege had been waived by disclosing the information to third parties, we rejected the claim and ordered the subpoena quashed. Id. at 350.

We reasoned that the communication was made for the “limited and restricted purpose to assist in asserting their common claims” and that thus “the recipient of the copy stands under the same restraints arising from the privileged character of the document as the counsel who furnished it, and consequently he has no right, and cannot be compelled, to produce or disclose its contents.” Id. (quotation omitted); see also Hunydee v. United States, 355 F.2d 183, 185 (9th Cir.1965) (“[W]here two or more persons who are subject to possible indictment in connection with the same transactions make confidential statements to their attorneys, these statements, even though they are exchanged between the attorneys, should be privileged to the extent that they concern common issues and are intended to facilitate representation in possible subsequent proceedings.”).

The Ninth Circuit has long recognized that the joint defense privilege is “an extension of the attorney-client privilege.” United States v. Henke, 222 F.3d 633, 637 (9th Cir.2000) (explaining that a JDA had established an implied attorney-client relationship between the codefendants and their counsel); see also United States v. Austin, 416 F.3d 1016, 1021 (9th Cir.2005) (recognizing joint defense privilege as extension of attorney client privilege that “protects not only the confidentiality of communications passing from a party to his or her attorney but also ‘from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel’ ”) (quoting United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.1989)). The privilege is also referred to as the “common interest” privilege or doctrine, because it has not been limited to criminal defense situations or even situations in which litigation has commenced:

Whether the jointly interested persons are defendants or plaintiffs, and whether the litigation or potential litigation is civil or criminal, the rationale for the joint defense rule remains unchanged: persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims.

In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir.1990).

Here, the district court assumed for the sake of argument that an implied JDA existed, but nonetheless held that no such agreement “should or can be allowed to bar discovery or use of pertinent communications to and from trial counsel in a later Section 2255 proceeding.” 2010 WL 5399216, at *11. The court reasoned that the “joint defense agreement does not create a duty of loyalty to an individual who is not one's own client, and it is not the same as joint representation.” Id. at *8. The court thus concluded that communications between counsel are more appropriately characterized as “work product communications, intended to aid in preparation for litigation,” and that such privilege is not absolute; the court went on to hold that there existed the required “necessity and unavailability by other means” for discovery of the work product. Id. at *8–9; see Fed.R.Civ.P. 26(b)(3).

On appeal, the government does not advance the rationale proffered by the district court.³ Rather, it argues that (1) Gonzalez did not sufficiently establish on the record that a JDA actually existed, (2) that such an agreement could...