Order Granting in Part the United States of America’s Motion for an Order Finding a Waiver of the Attorney-Client Privilege — United States v. Mills (Dkt. 52, D. Haw.)

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An order by Chief United States District Judge Derrick K. Watson in United States of America v. Carey Mills, Case No. 22-cr-00034-DKW-1 and Case No. 24-cv-00558-DKW-KJM, in the U.S. District Court for the District of Hawaii, dated January 8, 2025. It recites that on January 6, 2025 Mills filed a counseled motion under Title 28, United States Code, Section 2255 to vacate his sentence (Dkt. No. 49), asserting ineffective assistance of counsel against his former lawyer, Neal J. Kugiya. On the government's motion (Dkt. No. 51), the order grants in part a finding that Mills has waived the attorney-client privilege as to the matters raised in his motion. A footnote notes an earlier motion of December 20, 2024 (Dkt. No. 48) filed by an attorney not admitted in the case.

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Case 1:22-cr-00034-DKW         Document 52        Filed 01/08/25     Page 1 of 3 PageID.505




                   IN THE UNITED STATES DISTRICT COURT

                            FOR THE DISTRICT OF HAWAI‘I

    UNITED STATES OF AMERICA,                     Case No. 22-cr-00034-DKW-1
                                                  Case No. 24-cv-00558-DKW-KJM1
               Plaintiff,
                                                  ORDER GRANTING IN PART THE
        v.                                        UNITED STATES OF AMERICA’S
                                                  MOTION FOR AN ORDER
    CAREY MILLS,                                  FINDING A WAIVER OF THE
                                                  ATTORNEY-CLIENT PRIVILEGE
               Defendant.



       On January 6, 2025, Defendant Carey Mills (Mills) filed a counseled motion

to vacate, set aside or correct his sentence pursuant to Title 28, United States Code,

Section 2255 (Section 2255 Motion). Dkt. No. 49. 2 In the Section 2255 Motion,

Mills asserts claims of ineffective assistance of counsel against his “former”

lawyer, who is identified as Neal J. Kugiya (Kugiya). Id. at 4. 3 Specifically,

Mills argues, among other things, that Kugiya (1) created a “damaging impression”

at sentencing regarding attempts to delay the sentencing hearing and Mills’




1
  The Court cites to the docket numbers in Case No. 22-cr-34-DKW-1.
2
  Mills also filed a motion to vacate his sentence on December 20, 2024. Dkt. No. 48. That
motion, however, was filed by an attorney not admitted to practice in this case and signed by an
attorney other than the filer. The Court, therefore, cites the January 6, 2025 Section 2255
Motion, which was filed by local counsel.
3
  In citing the Section 2255 Motion, the Court cites the page numbers assigned by CM/ECF in the
top right corner of the document, i.e., “Page 4 of 12.”

Case 1:22-cr-00034-DKW      Document 52      Filed 01/08/25   Page 2 of 3 PageID.506



medical conditions, and (2) provided “insufficient communication,” resulting in

Mills’ acceptance of a guilty plea. Id.

      After the setting of briefing on the Section 2255 Motion, Dkt. No. 50, the

government moved for an order finding a waiver of the attorney-client privilege,

Dkt. No. 51. Specifically, the government sought waiver of “all” communications

between Mills and Kugiya. For the reasons set forth below, the Court GRANTS

IN PART the government’s request for waiver of the attorney-client privilege.

      In Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003), cert. denied, 540

U.S. 1013 (2003), the Ninth Circuit held that “[i]t has long been the rule in 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

alleged ineffective lawyer.” The waiver imposed, however, should be “no broader

than needed” and tailored “to the needs of the opposing party in litigating the claim

in question.” Id. at 720.

      Here, the Section 2255 Motion clearly raises claims of ineffective assistance

of counsel, resulting in the waiver of the attorney-client privilege between Mills

and Kugiya. However, those claims are limited to Kugiya’s representation (1) in

the run-up to and during sentencing – in particular, concerning scheduling – and

(2) related to Mills’ acceptance of a guilty plea. Therefore, in order to investigate

and respond to those claims, the government may ---
                                                only inquire into
                                        2

Case 1:22-cr-00034-DKW     Document 52        Filed 01/08/25           Page 3 of 3 PageID.507



communications between Mills and Kugiya reasonably related to (1) attempts to

delay sentencing and Kugiya’s alleged statements at sentencing concerning Mills’

medical conditions, and (2) Mills’ acceptance of a guilty plea. Attorney Kugiya is

expressly authorized to provide information to the government on the above

matters. To that extent only, the instant motion, Dkt. No. 51, is GRANTED.

      IT IS SO ORDERED.

      DATED: January 8, 2025 at Honolulu, Hawai‘i.




                                  ___________________________
                                  Derrick K. Watson
                                  Chief United States District Judge




UNITED STATES v. CAREY MILLS
CR. NO. 22-00034-DKW-1
CV. NO. 24-00558-DKW-KJM
“Order Granting in Part the United States of America’s Motion for an Order
Finding A Waiver of the Attorney-Client Privilege.”




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