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
The opinion of the court was delivered by: Hawkins, Senior Circuit Judge:
Argued and Submitted November 15, 2011-San Francisco, California
Before: Michael Daly Hawkins and Milan D. Smith, Jr., Circuit Judges, and Kevin Thomas Duffy, District Judge.*fn1
In this interlocutory appeal, Luis Alberto Gonzalez ("Gonzalez") challenges an order denying his motion to quash a subpoena in a section 2255*fn2 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 ...