Johnson v. United States of America
Filing
283
ORDER denying 262 Motion to Compel Discovery or In Camera Inspection of Governmental Communications. See text of order. Signed by Judge Mark W Bennett on 6/23/11. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
ANGELA JOHNSON,
Petitioner,
No. C 09-3064-MWB
(No. CR 01-3046-MWB)
vs.
ORDER
UNITED STATES OF AMERICA,
Respondent.
____________________
This case is before me on petitioner Angela Johnson’s June 1, 2011, Renewed
Motion To Compel Discovery Or In Camera Inspection Of Governmental Communications
Relevant To Claim III A.1 Of The Corrected, Amended Motion Under 28 U.S.C. § 2255
(docket no. 262). In her renewed motion, Johnson states that, in a March 1, 2011, Motion
(docket no. 160), she originally sought five categories of evidence, related to the
prosecution’s position in plea negotiations: (1) any correspondence or memoranda by
members of the United States Attorney’s Office for the Northern District of Iowa directed
to defense counsel for Johnson or Honken relevant to plea negotiations in this case; (2) any
correspondence or memoranda by members of the United States Attorney’s Office for the
Northern District of Iowa directed to Main Justice relevant to plea negotiations in this case;
(3) any correspondence or memoranda by Main Justice directed to members of the United
States Attorney’s Office for the Northern District of Iowa relevant to plea negotiations in
this case; (4) any correspondence or memoranda between members of the United States
Attorney’s Office for the Northern District of Iowa relevant to plea negotiations in this
case; and (5) any correspondence or memoranda by Main Justice directed to members of
the United States Attorney’s Office for the Northern District of Iowa relevant to the date
of when there was any change in policy regarding acceptance of pleas in death eligible
cases.
The respondent produced the items in category (1), but I reserved ruling on the
remaining categories until I had heard evidence about whether the petitioner was ever
amenable to a guilty plea, what steps, if any, trial counsel took to attempt to encourage the
petitioner to consider a guilty plea or to obtain from the government a plea agreement to
a sentence other than death, and whether the government ever made any plea offers. See
Order (docket no. 162). Subsequently, by Order (docket no. 218), filed April 13, 2011,
I denied Johnson’s request for the information in categories (2) through (5), finding that
much of the information in the remaining categories is simply irrelevant, where there is
no showing that anyone other than the Attorney General had ultimate authority with regard
to any plea offer in a capital case; if somehow relevant, the information in these categories
is subject to work product and/or deliberative process privileges; and there was no waiver
of any applicable privilege.
In her Renewed Motion (docket no. 162), Johnson renews her request for
production of the items in categories (2) through (5), either directly to her counsel or, in
the alternative, to the court for in camera inspection and creation of an appellate record.
She notes that, after my rulings, the respondent produced some documents within
categories (2) through (5), which were incorporated into hearing Exhibit 48, and that I
ruled that any privilege as to these documents had been waived. She also points out that
several witnesses in the hearing provided testimony relevant to the plea negotiation issues
to which the requested documents pertain. She contends that, while I ruled that there had
been no waiver as to any applicable privilege as a result of the respondent’s response to
Johnson’s § 2255 motion, I have not yet addressed or resolved the second waiver argument
raised in her motions, that is, that any privileges were waived, because, at the time of trial,
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government counsel had disclosed to defense counsel internal plea discussions between
members of the United States Attorney’s Office and between that Office and Main Justice.
On June 13, 2011, in the course of part three of the evidentiary hearing, I advised
the parties that I had reviewed relevant case law and that I was convinced that the
correspondence between the Attorney General’s Office and the local United States
Attorney’s Office is protected by the deliberative process privilege and that I did not
believe that privilege had been waived. Hearing Transcript, Vol. 13, 352:21-353:2.
However, I suggested that, in my view, whether or not the Attorney General or a
representative of the Attorney General ever authorized a plea to less than death was an
ultimate determination not protected by that privilege. Id. at 353:3-15. Therefore, I asked
the respondent to consider answering the ultimate question of whether the Attorney
General, or any of his representatives, ever authorized anyone to accept a plea of less than
death for Angela Johnson. In an e-mail dated June 21, 2011, to the court and opposing
counsel, the respondent’s counsel has now answered that question, and the answer is no,
neither the Attorney General, nor any of his representatives, ever authorized anyone to
accept a plea of less than death for Angela Johnson.
The court anticipates that
respondent’s counsel will file an affidavit to that effect, as well.
In my view, the respondent’s answer to the ultimate question renders irrelevant all
of the remaining categories of correspondence requested by Johnson in her Renewed
Motion. Moreover, while the ultimate answer plainly is not privileged, see NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 151-52 (1975), I am convinced that the remaining
categories of correspondence and communications are subject to deliberative process and
other privileges. See, e.g., Department of the Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1, 8 (2001); United States v. Nobles, 422 U.S. 225, (1975) (explaining
the applicability of work-product and mental processes privileges to prosecutors); NLRB,
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421 U.S. at 150-51; United States v. Zingsheim, 384 F.3d 867, 871-72 (7th Cir. 2004)
(considering privileges applicable to communications between prosecutors and client
agencies and materials and discussions leading to the formulation of an official position);
United States v. Fernandez, 231 F.3d 1240, 1247 (9th Cir. 2000) (finding work product
privilege applies to the death penalty evaluation form and prosecution memoranda); Amobi
v. District of Columbia Dep’t of Corrections, 262 F.R.D. 45, 57 (D.D.C. 2009) (holding
that federal prosecutors could assert work product and deliberative process privileges
concerning notes and materials incident to the decision to prosecute the defendant);
Antonelli v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 555 F. Supp. 2d 16,
(D.D.C. 2008) (holding that inter-agency and intra-agency memoranda and letters from
an assistant United States Attorney to the Bureau of Prisons in connection with a criminal
prosecution were protected by the deliberative process privilege); Berger v. IRS, 487 F.
Supp. 2d 482, 498-500 (D.N.J. 2007) (holding that interagency correspondence between
the local United States Attorney’s Office and the IRS regarding a criminal investigation
were subject to the deliberative process and work product privileges).
I also now find or reiterate my finding that the respondent has not waived applicable
privileges, either as a result of the respondent’s response to Johnson’s § 2255 motion, or
because, at the time of trial, government counsel had disclosed to defense counsel internal
plea discussions between members of the United States Attorney’s Office and between that
Office and Main Justice.
Specifically, I find that the circumstances of the alleged
disclosure to defense counsel of internal plea discussions between members of the United
States Attorney’s Office and between that Office and Main Justice identified by Johnson
fall short of circumstances giving rise to a waiver of the applicable privileges. References
to what local prosecutors might find acceptable or what local prosecutors thought Main
Justice might find acceptable for terms of a plea agreement do not actually disclose internal
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plea discussions nor do they sufficiently convey an intention to disclose work product or
deliberative processes. See, e.g., Gundacker v. Unisys Corp., 151 F.3d 842, 848 (8th Cir.
1998) (stating that, ordinarily, disclosure of work product waives work product privilege,
but there must be an intention that the opposing party see the work product); Pittman v.
Frazer, 129 F.3d 983, 988 (8th Cir. 1997) (holding that a waiver occurred only as to work
product actually used as exhibits at trial); United States v. Metropolitan St. Louis Sewer
Dist., 952 F.2d 1040, 1045 (8th Cir. 1992) (giving as an example of waiver disclosure of
privileged documents to third parties); In re Chrysler Motors Corp. Overnight Evaluation
Program Litig., 860 F.2d 844, 846-47 (8th Cir. 1988) (holding that disclosure to an
adversary waives the privilege only as to the items actually disclosed, while continuing
efforts to keep material confidential would retain the privilege for those materials); United
States v. Pfizer, Inc., 560 F.2d 326, 339 n.24 (8th Cir. 1977) (holding that testimonial use
of confidential materials waives applicable privileges, but questioning by an opposing party
about events that may be discussed in the privileged materials does not result in a waiver).
THEREFORE, petitioner Angela Johnson’s June 1, 2011, Renewed Motion To
Compel Discovery Or In Camera Inspection Of Governmental Communications Relevant
To Claim III A.1 Of The Corrected, Amended Motion Under 28 U.S.C. § 2255 (docket
no. 262) is denied as to requested information not already disclosed.
IT IS SO ORDERED.
DATED this 23rd day of June, 2011.
__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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