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Ragbir v. United States

United States District Court, D. New Jersey

April 19, 2018

United States



         Dear Counsel:

         Before this Court is a motion by respondent, the United States, for an order requiring former trial and appellate co-counsel of petitioner, Ravidath Ragbir, to disclose information and documents relating to his claims for ineffective assistance of counsel. (ECF No. 42.) Mr. Ragbir has filed a resonse (ECF No. 45), and the government has filed a reply. (ECF No. 46). The parties seek other, ancillary relief as well.


         Familiarity with the background of this matter is assumed. In February 2017, Mr. Ragbir filed his current petition for a writ of coram nobis, seeking to vacate a 2001 conviction for wire fraud and conspiracy or, in the alternative, to require resentencing. (Pet., ECF No. 1.) Among other arguments, Mr. Ragbir asserts that he received ineffective assistance of both trial and appellate counsel. (See Id. ¶¶ 46-64.) Trial counsel Patricia Lee, he says, was ineffective in three ways: (1) she "misadvised him when she said that his conviction could lead to deportation, but did not explain that the immigration consequences of the conviction were dependent on the outcome of the loss determination" (id. ¶¶ 48-52); (2) she failed to sufficiently investigate and negotiate loss calculations during Mr. Ragbir's sentencing (id. ¶¶ 53-58); and (3) she failed to retain a linguistics expert to evaluate the authenticity of a purported confession (id. ¶¶ 59-61). Appellate counsel, Anthony J. Fusco, Jr., he says, was ineffective in that he failed to raise a preserved objection to a jury instruction concerning the element of willful blindness. (Id. ¶¶ 62-64.) A hearing on the merits is set to occur before me on May 4, 2018. (See ECF Nos. 9, 28, 29.)


         The government now moves for an order requiring Mr. Ragbir's trial and appellate counsel "to disclose to the Government otherwise privileged or confidential communications that Mr. Ragbir's claims of ineffective assistance of counsel have placed in issue" and also "to provide [the government] with any documents bearing on Mr. Ragbir's ineffective assistance of counsel claims." (ECF No. 42 at 1.) The government indicates an intent to interview and otherwise seek information not only from Ms. Lee and Mr. Fusco, but also from two other lawyers: Alan L. Zegas, said to have served as co-counsel with Ms. Lee, and Michele Alcalde, said to have served as co-counsel with Mr. Fusco. (See id.) The government seeks mis relief on the basis that raising an argument of ineffective assistance of counsel implicitly waives attorney-client privilege as to communications related to the claim. (Id. at 1-2.) It contends that Mr. Zegas was listed as lead attorney on Mr. Ragbir's trial docket and that other evidence suggests his active involvement in the litigation. (Id., at 2.) It also notes that Ms. Alcalde signed Mr. Ragbir's appellate brief and that an affidavit from Mr. Ragbir in support of his coram nobis petition mentions his discussions with both Mr. Fusco and Ms. Alcalde. (Id.) The government includes with its motion a proposed order that recites findings that Mr. Ragbir's claims have implicitly waived attorney-client privilege "with respect to communications with his attorneys reasonably necessary to prove or disprove his claims" and ordering "that the Government may interview petitioner's former counsel, Patricia Lee, Alan L. Zegas, Anthony J. Fusco, Jr. and Michele Alcalde, Esqs., who shall provide all reasonably necessary information for the Government to respond to the ineffective assistance of counsel allegations raised by their former client." (ECF No. 42-7.)

         Mr. Ragbir opposes this motion, asking "that the Court reject it entirely or, in the alternative, impose significant limitations on the scope of any waiver." (ECF No. 45 at 1.) He argues that his assertion of claims for ineffective assistance of counsel does not warrant a blanket waiver of attorney-client privilege, but rattier a waiver narrowly limited to the scope necessary to ensure a fair proceeding. (Id. at 2-3.) He contends that document production by former counsel should be narrowly limited and first subject to in camera review, with an opportunity for his counsel to raise objections. (Id. at 3-4.) Mr. Ragbir asserts that, as he raised specific ineffective-assistance claims concerning only Ms. Lee and Mr. Fusco, the government should be limited to questioning only those two attorneys, and only on those specific topics. (Id. at 4-5.) He further asks that I bar the government from speaking with his former counsel except at the May 4 hearing or, in the alternative, that I require that his counsel be permitted to attend any interview. (Id. at 5-6.) Finally, Mr. Ragbir asks that I issue a protective order limiting the use of any information obtained from his former counsel to this proceeding. (Id. at 6-7.)

         In reply, the government states that it agrees with Mr. Ragbir that attorney-client privilege and work-product immunity are waived only as to the specific topics raised in support of his claims for ineffective assistance of counsel. (ECF No. 46 at 1.) It contends, however, that it must be permitted to explore those topics not only with Ms. Lee and Mr. Fusco, but also with their co-counsel, Mr. Zegas and Ms. Alcalde. (Id. at 2.) The government argues that I "can and should" require Mr. Ragbir's former counsel to appear for interviews with the government and produce relevant documents without in camera review. (Id.) The government contends that it should be able to interview Mr. Ragbir's former counsel outside the presence of his current counsel. (Id. at 3.) It posits that a protective order restricting the use of any information obtained is unnecessary. (Id.) It includes with its reply an amended proposed order, based on an order previously issued by Judge Jerome B. Simandle in a similar case, which would order Mr. Ragbir's former counsel to submit to interviews with the government concerning his ineffective-assistance-of-counsel claims, order each former counsel to produce copies of directly relevant documents, and order the government to produce the documents received to Mr. Ragbir's counsel. (ECF No. 46-1.)


         The parties raise several specific questions regarding both the scope of the applicable waiver of attorney-client privilege in this case and the proper procedure to be applied in obtaining discovery prior to the May 4, 2018 hearing. As to scope, the parties raise three distinct issues: (1) the substantive breadth of the privilege waiver, i.e., what topics may be explored with Mr. Ragbir's former counsel; (2) the particular attorneys to whom the privilege waiver applies; and (3) how the government may use any information it acquires via the privilege waiver.

         Substantive Breadth of Waiver

         As to the first issue, the substantive breadth of the waiver, the parties now seem to agree. The United States Court of Appeals for the Third Circuit has generally held that parties implicitly waive attorney-client privilege when they place the legal representation directly in issue.[1] Other circuits have held more specifically that when a petitioner "claims that he received ineffective assistance of counsel, he puts communications between himself and his attorney directly in issue, and thus by implication waives the attorney-client privilege with respect to those communications."[2]1 am persuaded by those authorities.

         That implicit waiver of attorney-client privilege is limited, however, to attorney-client communications that are necessary for the resolution of the claims at hand.[3] Relevance in its broad sense under the Federal Rules of Evidence would be too lax a standard; mere relevance to the case "is not the standard for determining whether or not evidence should be protected from disclosure as privileged ....'[4]

         Mr. Ragbir's counsel perhaps exaggerates in stating that the government's motion sought a "blanket waiver of the attorney-client privilege." In any case the government, in its reply, has sharpened its focus. The government agrees that Mr. Ragbir has waived the privilege only as to four specific topics that his ineffective-assistance claims have placed in issue:

1. trial counsel's alleged 'misadvice' to Mr. Ragbir 'regarding deportation consequences';
2. trial counsel's alleged 'failure to sufficiently investigate and negotiate loss at sentencing';
3. trial counsel's alleged 'failure to consult a linguistic expert to challenge the accuracy of statements that law enforcement attributed to Mr. Ragbir at trial'; and
4. appellate counsel's 'failure to raise the error regarding the willful blindness jury instruction on appeal.'

(ECF No. 46 at 1 (quoting ECF No. 45 at 4-5).) I agree that Mr. Ragbir's waiver of the attorney-client privilege is limited in scope to information necessary to fairly resolve those four ...

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