USA v. Alimi

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States v. Spresim Alimi
Case No. 3:16-cr-00028-TMB-1
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
The matter comes before the Court on the United States’ Motion to Find Attorney-Client Privilege
Waived (the “Motion”).1 Defendant Spresim Alimi, through counsel, filed an Objection to the
Motion and a Request for Protective Order (“Objection”).2 For the reasons discussed below, the
Motion is GRANTED IN PART and DENIED IN PART and Defendant’s request for a
protective order is GRANTED.
On May 17, 2019, Defendant filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to
28 U.S.C. § 2255 (“§ 2255 Motion”) asserting, among other things, he received ineffective
assistance from his three prior defense counsel in the underlying case.3 The present Motion by the
United States seeks a court finding that Defendant has “waive[d] the attorney-client privilege as
to all communications with his alleged ineffective lawyer.”4 Defendant objects to such a broad
order.5 Defendant acknowledges that he waives the attorney-client privilege with respect to
conversations with counsel regarding plea negotiations and efforts to withdraw Defendant’s guilty
plea, which serve as grounds for his ineffective assistance claims.6 However, contrary to the United
States’ assertions, Defendant argues that he has not waived the privilege as to all conversations
with his defense counsel.7 Defendant contends that he only needs to disclose those conversations
with counsel that “address the particular claims of ineffectiveness at issue and that are necessary
to give the opposing party a fair opportunity to defend.”8 In addition, Defendant argues that those
same conversations should be protected from use or disclosure other than in rebuttal to Defendant’s
§ 2255 Motion.9
The Ninth Circuit in Bittaker v. Woodford held that the general rule that “a litigant waives the
attorney-client privilege by putting the lawyer’s performance at issue during the court of litigation”
is limited in scope to only “what is needed to litigate the claim of ineffective assistance of counsel
1 Dkt .128 (Motion).
2 Dkt. 129 (Objection).
3 Dkt. 118 (Motion to Vacate).
4 Dkt. 128-1 (Proposed Order) (quoting Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003)).
5 Dkt. 129 at 1.
6 Id. at 2.
7 Id. at 4.
8 Id.
9 Id. at 6–7.
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in federal court.”10 This “narrow waiver rule” allows the adjudication of ineffective assistance of
counsel while also safeguarding the attorney-client privilege in criminal cases.11 The Bittaker
Court further found the district court appropriately entered a protective order precluding the use of
the attorney-client communications at issue for any purpose other than litigating the ineffective
assistance of counsel claim.12
Under the Ninth Circuit’s holding in Bittaker, this Court finds that Defendant has waived the
attorney-client privilege with respect to communications with his prior defense counsel and only
with respect to those communications related to his claims of ineffective assistance regarding plea
negotiations and withdrawing the guilty plea. However, the Court finds that Defendant has not
waived the attorney-client privilege with respect to any other communications with his prior
defense counsel. The United States Motion at Docket 128 is therefore GRANTED IN PART and
DENIED IN PART.
Because 	Defendant 	has 	waived 	the 	attorney-client 	privilege 	as 	to 	certain 	attorney-client
communications, the Court also GRANTS Defendant’s request at Docket 129 for an order
protecting those specific communications. It is HEREBY ORDERED that the United States shall
not use or disclose those communications or the information within those communications for any
reason other than responding to Defendant’s § 2255 Motion and the litigation of Defendant’s
ineffective assistance of counsel claims.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: December 2, 2019.
10 Bittaker, 331 F.3d at 719‒22.
11 Id. at 722.
12 Id. at 726‒28.
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