United States District Court, E.D. California
McGREGOR W. SCOTT United States Attorney.
ROSANNE L. RUST Assistant United States Attorney.
UNITED STATES' MOTION TO UNSEAL DEFENDANT'S
LETTER TO THE COURT (ECF NO. 75); [PROPOSED] ORDER
GARLAND E. BURRELL, JR. UNITED STATES DISTRICT JUDGE.
United States submits the following motion to request that
the Court order that ECF No. 75, “Defendant's
letter concerning her appointed counsel, ” be unsealed.
Although the defendant has filed a Ninth Circuit appeal,
placing at issue the exact matter seemingly presented in her
letter, i.e., whether she should have received new
trial counsel, the defendant (through her current attorney)
contends the United States does not need access to the
letter. That contention is in error. To decide the
defendant's sole appellate issue, the Ninth Circuit may
consider the content of her letter to determine whether a
total breakdown of the attorney-client relationship existed,
warranting her request to substitute counsel. Moreover, by
filing her Ninth Circuit appeal, the defendant has waived her
right to any attorney-client privileged content contained in
the letter regarding her request to substitute counsel.
FACTS AND RELEVANT PROCEDURAL BACKGROUND
October 18, 2019, the defendant Carissa Carpenter submitted
her opening brief to the Ninth Circuit, (ECF No. 14, case
number: 18-10463)  , alleging that this Court violated
her Sixth Amendment right to counsel when it denied her two
requests to fire her then-trial counsel, John Manning, and
replace him with another attorney.
Court is aware, before the second hearing, the defendant sent
a letter to the Court dated March 6, 2018. On March 16, 2018,
the Court ordered that that particular letter was to be filed
on the docket under seal. ECF No. 74. The Court further held
an in camera proceeding on March 16, 2018, in which
the Court, the defendant and her attorney were the only
participants present. ECF No. 76. As discussed during that
proceeding, the Court agreed to hold a hearing on the
defendant's request to fire her lawyer, which appears to
be the one issue discussed in her sealed letter. See
ECF No. 15 at 34:16-35:6, case number: 18-10463 (“The
undersigned judge received a letter from Defendant dated
March 6, 2018, in which she seeks another appointed attorney
under the Criminal Justice Act and another investigator. . .
. [T]he appointed counsel matter is in front of me. I'm
going to conduct an in camera proceeding.”).
the transcripts of that hearing held on March 16, 2018, have
been unsealed for the purpose of the defendant's appeal
(ECF No. 151), her letter to the Court (ECF No. 75) remains
under seal. This is true even though the defendant
acknowledges in her opening brief to the Ninth Circuit, that
this Court held the March 16, 2018, in camera
hearing “[i]n response to [the] letter filed by Ms.
Carpenter.” ECF No. 14 at 12, case number 18-10463.
The Letter's Contents Are Not Subject to
Attorney-Client Privilege And Should Be Part Of The Appellate
adequately resolve the defendant's sole issue on appeal,
the letter she drafted and sent to this Court in March 2018
appears necessary. When reviewing a district court's
denial of a motion for substitution of counsel, the Ninth
Circuit focuses on three inquiries to determine if the
district court abused its discretion. First, whether the
district court's inquiry on the matter was adequate; (2)
the extent of the conflict between the defendant and counsel;
and (3) the timeliness of the motion weighed against any
inconvenience or delay that would result from granting the
motion. United States v. Corona-Garcia, 210 F.3d
973, 976 (9th Cir. 2000) (citation omitted). In assessing
those factors, the Ninth Circuit considers the totality of
the circumstances surrounding the defendant's motion for
substitute counsel. See Id. at 977. Those
circumstances may include reviewing letters the defendant
writes and submits to the district court, which in turn,
prompt hearings during which the defendant's request for
substitute counsel is addressed. See, e.g., United States
v. Burrell, 23 Fed.Appx. 777, 778-79 (9th Cir. 2001).
respect to whether a party has waived the attorney-client
privilege, the Ninth Circuit employs a three-pronged test.
United States v. Amlani, 169 F.3d 1189, 1195 (9th
Cir. 1999). First, the Ninth Circuit considers whether the
party is asserting the privilege as the result of some
affirmative act, such as filing suit. Id. (citation
omitted). Second, the Ninth Circuit examines whether through
the party's affirmative act, the asserting party puts the
privileged information at issue. Id. Finally, the
Ninth Circuit evaluates whether allowing the privilege would
deny the opposing party access to information vital to its
defense. Id. Where a party raises a claim which in
fairness requires disclosure of the protected communication,
the attorney-client privilege may be implicitly waived.
Id. (citation omitted).
that the letter at issue (ECF No. 75) appears to provide the
basis, at least in part, for the defendant's claim that
this Court wrongly denied her request for substitute counsel,
its contents likely provide important background information
that inform whether the district court's inquiry on the
substitution matter was adequate. The letter may also shed
light on the dispute between the defendant and her prior
trial counsel as the letter's contents prompted the
second hearing regarding the defendant's request to
any argument that the letter is protected by attorney-client
privilege should also be rejected. By contending the district
court erred in denying her requests for substitute counsel,
the defendant has placed information on that topic, even
privileged content, at issue by taking the affirmative step
of filing her appeal. To properly defend this Court's
decision to deny the defendant's two separate requests
for substitute counsel, the United States must have access to
the letter. As the defendant admits in her opening brief to
the Ninth Circuit, her letter, dated March 6, 2018, prompted
the second hearing at which this Court addressed her written
request to fire her then-trial-counsel. ECF No. 14 at 12,
case number 18-10463. Given such a concession, in ...