USA v. Riedel-Byler et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
DARREN K. BYLER,
Defendant.
Case No. 3:15-cr-00008-SLG
ORDER REGARDING WAIVER OF ATTORNEY-CLIENT PRIVILEGE
Before the Court at Docket 299 is the government’s Motion for Order Finding
Waiver of Attorney-Client Privilege. Defendant Darren K. Byler filed a response in
opposition at Docket 300. The government replied at Docket 301; however, the
Court did not consider the government’s reply because it is not in compliance with
the District of Alaska Local Criminal Rules.1
In 2015, a jury convicted Mr. Byler of discharging refuse into Kodiak Harbor
and using a false document during the course of the government’s investigation.2
Mr. Byler has filed a 28 U.S.C. § 2255 motion that alleges two ineffective
assistance of counsel (IAC) claims.3 Specifically, Mr. Byler alleges that his former
1 D. Ak. L. Crim. R. 47.1(d) (“Unless otherwise ordered by the court, no reply memorandum will
be filed.”).
2 Docket 129.
3 Docket 292.
Case 3:15-cr-00008-SLG Document 302 Filed 11/20/20 Page 1 of 6

Case No. 3:15-cr-00008-SLG, United States v. Byler
Order Re Waiver of Attorney-Client Privilege
Page 2 of 6
defense team, led by trial counsel Mike Dieni, was ineffective for (1) not raising a
due process challenge to the manner in which the government investigated the
case and (2) not fully investigating a potential defense witness.4 The government’s
instant motion seeks an order finding that by filing the § 2255 claims, Mr. Byler has
waived his attorney-client privilege “concerning communications with his former
counsel Mike Dieni and former defense team” to the extent necessary for the
government to respond to the two IAC claims.5
Mr. Byler responds that the government does not have much need to consult
with Mr. Dieni in order to have a fair opportunity to defend the § 2255 action. On
the due process claim, the defense reasons that “[t]rial counsel should have raised
the [due process] issue at trial regardless of whether it was the subject of an
attorney-client discussion prior to trial.” However, the defense acknowledges that
the witness-related claim “does include a limited reliance on attorney-client
communications.”6 But Mr. Byler maintains that the government has not made “a
sufficient showing of need” to consult with Mr. Dieni and that the government is
seeking too broad of an order.7
4 Docket 292 at 15, 21.
5 Docket 299-1.
6 Docket 300 at 3–4.
7 Docket 300 at 1.
Case 3:15-cr-00008-SLG Document 302 Filed 11/20/20 Page 2 of 6

Case No. 3:15-cr-00008-SLG, United States v. Byler
Order Re Waiver of Attorney-Client Privilege
Page 3 of 6
“It 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.”8 In Bittaker v. Woodford, the Ninth Circuit considered the scope of such
a waiver, asking “[d]oes it extend only to litigation of the federal habeas petition, or
is the attorney-client privilege waived for all time and all purposes—including the
possible retrial of the petitioner, should he succeed in setting aside his original
conviction or sentence?”9 The Bittaker Court held that by filing a habeas claim,
the petitioner makes only a “narrow waiver,” meaning that the waiver extends only
to the litigation of the IAC claims and not to any subsequent retrial or any other
proceeding.10 Mr. Byler appears to maintain that the Court should further parse
the attorney-client communications and permit inquiry only as to those directly
relevant to the IAC claims. But to properly evaluate Mr. Byler’s claims, the Court
must consider whether Mr. Dieni’s performance was reasonable in light of all of the
circumstances.11 “It would be manifestly unfair to require respondent to try to
defend against [an] IAC claim without giving it any ability to assess the content,
timing, and context of petitioner’s communications with trial counsel and trial
8 Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003) (en banc). Bittaker applies to both the
attorney-client privilege and the work-product privilege. 331 F.3d at 722 n.6.
9 Id. at 716–17.
10 Id. at 722.
11 United States v. Ross, Case No. 08-00223DAE , 2012 WL 829779, at *3 (D. Haw. Mar. 9,
2012) (citing Strickland v. Washington, 466 U.S. 668 (1984)).
Case 3:15-cr-00008-SLG Document 302 Filed 11/20/20 Page 3 of 6

Case No. 3:15-cr-00008-SLG, United States v. Byler
Order Re Waiver of Attorney-Client Privilege
Page 4 of 6
counsel's staff.”12 In contrast, it is not unfair to Mr. Byler to allow the government
to inquire into privileged communications with his former counsel when Mr. Byler
has put the performance of his former counsel at issue and the Court limits the
government’s use of the communications to defending against the § 2255 motion.13
The defense relies on United States v. Amlani to assert the “importance of
narrowly circumscribing the parameters of a waiver of attorney-client privilege.”14
This Court agrees that the waiver must be no broader than needed to fairly litigate
the § 2255 motion but finds that Amlani is not directly applicable here. Amlani
occurred in a unique procedural posture; the defendant raised a claim of “attorney
disparagement” concerning his prior counsel on direct appeal (not a habeas claim
of ineffective assistance), which was remanded to the district court.15 The district
court found that the defendant had waived his privilege, and the government then
issued subpoenas for privileged materials.16 The defendant sought a writ of
mandamus from the Ninth Circuit, which held that it could give mandamus review
12 United States v. Sanchez, Case No. CR 08-00640-VBF, 2013 WL 1397081, at *2 (C.D. Cal.
Feb. 28, 2013).
13 Moreover, it appears from the filed declarations of Mr. Byler and his co-defendant that at least
some conversations that Mr. Byler had with his defense team took place in the presence of his
co-defendant or his co-defendant’s defense team. Neither party has indicated that a joint
defense agreement was in place at the time of these conversations. See United States v. Gann,
732 F.2d 714, 723 (9th Cir. 1984) (“Because Gann knew, or should have known, that third
parties were present, his attorney-client privilege claim must fail.”).
14 Docket 300 at 3 (citing United States v. Amlani, 169 F.3d 1189 (9th Cir. 1999)).
15 169 F.3d at 1191.
16 Id.
Case 3:15-cr-00008-SLG Document 302 Filed 11/20/20 Page 4 of 6

Case No. 3:15-cr-00008-SLG, United States v. Byler
Order Re Waiver of Attorney-Client Privilege
Page 5 of 6
of the case because the parties had no other means of appeal, the damage could
not be corrected on appeal, and the situation was sufficiently novel.17 And yet, the
Ninth Circuit concluded that the district court had not erred in finding a waiver of
attorney-client privilege because the defendant had put the communications in
dispute and because the government had a need for the evidence.18 The Ninth
Circuit thus denied the petition for a writ of mandamus.19
The government is entitled to learn of Mr. Byler’s concerning
communications with his former attorney Mike Dieni and his former defense team
to the extent necessary for the government to have a fair opportunity to make an
informed defense against the IAC claims.20 If Mr. Byler elects to proceed with his
§ 2255 claims, he will be deemed to have impliedly waived his attorney-client
privilege with respect to all attorney-client communications necessary for the
resolution of those claims.21
In light of the foregoing, IT IS ORDERED that the motion at Docket 299 is
GRANTED as follows: Within 14 days of the date of this order, Mr. Byler may
17 Id. at 1194.
18 Id. at 1195.
19 Id. at 1196.
20 A “court must impose a waiver no broader than needed to ensure the fairness of the
proceedings before it. Because a waiver is required so as to be fair to the opposing side, the
rationale only supports a waiver broad enough to serve that purpose.” Bittaker, 331 F.3d at
720.
21 See Bittaker, 331 F.3d at 720.
Case 3:15-cr-00008-SLG Document 302 Filed 11/20/20 Page 5 of 6

Case No. 3:15-cr-00008-SLG, United States v. Byler
Order Re Waiver of Attorney-Client Privilege
Page 6 of 6
elect to withdraw his § 2255 petition. If he does not do so within that time, then
this order shall become effective and the attorney-client privilege between Mr.
Byler and his former counsel Mike Dieni is deemed WAIVED as necessary for the
government to respond to the merits of the Sixth Amendment ineffectiveness
claims raised in Mr. Byler’s § 2255 motion, provided that any otherwise privileged
materials shall not be used for any other purposes apart from litigating the merits
of the § 2255 motion.
DATED this 20th day of November, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Case 3:15-cr-00008-SLG Document 302 Filed 11/20/20 Page 6 of 6