Court filing
Government's Ex Parte Application re Attorney-Client Privilege — Carl Bradley Johansson
No. 5:21-cr-00170-JGB · Doc. 138 · Docket on CourtListener
Full text
Case 5:21-cr-00170-JGB Document 138 Filed 03/11/25 Page 1 of 12 Page ID
#:1193
1 JOSEPH T. MCNALLY
Acting United States Attorney
2 LINDSEY GREER DOTSON
Assistant United States Attorney
3 Chief, Criminal Division
MATTHEW O'BRIEN (Cal. Bar No. 261568)
4 Assistant United States Attorney
Environmental Crimes and Consumer Protection Section
5 1400 United States Courthouse
312 North Spring Street
6 Los Angeles, California 90012
Telephone: (213) 894-8644
7 Facsimile: (213) 894-0141
E-mail: Matthew.O'Brien@usdoj.gov
8
Attorneys for Plaintiff/Respondent
9 UNITED STATES OF AMERICA
10 UNITED STATES DISTRICT COURT
11 FOR THE CENTRAL DISTRICT OF CALIFORNIA
12 UNITED STATES OF AMERICA, No. 5:18-CR-00114-JGB
5:21-CR-00170-JGB
13 Plaintiff/Respondent, 5:24-CV-02550-JGB
5:24-CV-02552-JGB
14 v.
GOVERNMENT’S EX PARTE APPLICATION
15 CARL BRADLEY JOHANSSON, FOR COURT ORDER (1) AUTHORIZING
aka “Brad Johnson,” DISCLOSURE OF CERTAIN ATTORNEY-
16 aka “Carl Johnson,” CLIENT COMMUNICATIONS,(2)
aka “C. Brad Johanson,” ESTABLISHING PROCEDURES FOR
17 aka “Jay Johnson,” OBTAINING SUCH ATTORNEY-CLIENT
aka “Keith Golatta, COMMUNICATIONS, AND (3)
18 IMPLEMENTING PROTECTIVE ORDER FOR
Defendant/Petitioner. SUCH OBTAINED COMMUNICATIONS
19
[Proposed] Order file concurrently
20 herewith
21
22 Plaintiff/Respondent United States of America, by and through
23 its counsel of record, the Acting United States Attorney for the
24 Central District of California and Assistant United States Attorney
25 Matthew O’Brien, hereby applies ex parte for an order from this Court
26 (1) declaring that defendant/petitioner CARL BRADLEY JOHANSSON, also
27 known as “Brad Johnson,” “Carl Johnson,” “C. Brad Johanson,” “Jay
28 Johnson,” and “Keith Golatta” (“defendant”), has waived his attorney-
Case 5:21-cr-00170-JGB Document 138 Filed 03/11/25 Page 2 of 12 Page ID
#:1194
1 client privilege with respect to all communications between him and
2 his attorneys Mark Werksman, Edward Robinson, and Rachel Robinson,
3 concerning the events and facts involved in defendant’s guilty pleas,
4 sentencing, and appeal in United States v. National Distribution
5 Services, Inc., et al., 5:18-CR-00114(B)-JGB, and United States v.
6 Western Distribution, LLC, et al., 5:21-CR-00170-JGB (collectively,
7 the “Related Cases”); (2) establishing procedures for the government
8 to obtain such attorney-client communications; and (3) implementing a
9 protective order under which information disclosed by defendant’s
10 prior attorneys pursuant to the disclosure order will be kept
11 confidential, will be filed with the Court under seal, and will be
12 used only in connection with litigation relating to defendant’s
13 ineffective assistance of counsel claims.
14 The government did not contact defendant regarding this ex parte
15 application. Defendant is proceeding pro se. He is currently
16 imprisoned at FCI Lompoc I, where he is serving a 10-year sentence.
17 According to the Bureau of Prisons, defendant’s projected release
18 date is August 9, 2029.
19 //
20 //
21 //
22
23
24
25
26
27
28
2
Case 5:21-cr-00170-JGB Document 138 Filed 03/11/25 Page 3 of 12 Page ID
#:1195
1 This application is based upon the attached memorandum of points
2 and authorities, all files and records in the case, and upon such
3 further evidence or argument as may be requested by the Court.
4 Dated: March 10, 2025 Respectfully submitted,
5 JOSEPH T. MCNALLY
Acting United States Attorney
6
LINDSEY GREER DOTSON
7 Assistant United States Attorney
Chief, Criminal Division
8
9 /s/
MATTHEW O’BRIEN
10 Assistant United States Attorney
11 Attorneys for Plaintiff/Respondent
UNITED STATES OF AMERICA
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Case 5:21-cr-00170-JGB Document 138 Filed 03/11/25 Page 4 of 12 Page ID
#:1196
1 TABLE OF CONTENTS
2 DESCRIPTION PAGE
3 I. PROCEDURAL BACKGROUND..........................................1
4 II. DEFENDANT HAS WAIVED THE ATTORNEY-CLIENT PRIVILEGE........Error!
Bookmark not defined.
5
III. THE GOVERNMENT’S PROPOSED ORDER STRIKES AN EFFECTIVE
6 BALANCE BETWEEN PROTECIGING DEFENDANT’S ATTORNEY-CLIENT
PRIVILEGE AND ALLOWING THE FAIR RESOLUTION OF THE SECTION
7 2255 MOTION....................................................4
8 IV. CONCLUSION.....................................................7
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
i
Case 5:21-cr-00170-JGB Document 138 Filed 03/11/25 Page 5 of 12 Page ID
#:1197
1 TABLE OF AUTHORITIES
2 DESCRIPTION PAGE
3
4 Bittaker v. Woodford,
331 F.3d 715 (9th Cir. 2003) ................................... 3, 5
5
6 Hendricks v. Vasquez,
974 F.2d 1099 (9th Cir. 1992) ..................................... 3
7
Tasby v. United States,
8 504 F.2d 332 (8th Cir. 1974) ...................................... 4
9 United States v. Leoni,
326 F.3d 1111 (9th Cir. 2003) ..................................... 3
10
11 United States v. Sanchez-Cervantes,
282 F.3d 664 (9th Cir. 2002) ...................................... 3
12
Wharton v. Calderon,
13 127 F.3d 1201 (9th Cir. 1997) ..................................... 4
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ii
Case 5:21-cr-00170-JGB Document 138 Filed 03/11/25 Page 6 of 12 Page ID
#:1198
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. PROCEDURAL BACKGROUND
3 On September 29, 2021, defendant/petitioner CARL BRADLEY
4 JOHANSSON, also known as “Brad Johnson,” “Carl Johnson,” “C. Brad
5 Johanson,” “Jay Johnson,” and “Keith Golatta” (“defendant”), pled
6 guilty to (1) counts one, two, and four of the second superseding
7 indictment in United States v. National Distribution Services, Inc.,
8 et al., ED CR No. 5:18-00114(B)-VAP (“the 2018 Case”), which charged
9 defendant with Conspiracy, in violation of 18 U.S.C. § 371, Welding
10 Without Required Certifications, in violation of 49 U.S.C. § 5124 and
11 49 C.F.R. § 180.413(a)(1), and Tax Evasion, in violation of 26 U.S.C.
12 § 7201; and (2) counts one and three of the indictment in United
13 States v. Western Distribution, LLC, et al., ED CR No. 5:21-00170-VAP
14 (the “2021 Case”), which charged defendant with Conspiracy to Commit
15 Bank Fraud/Committed while on Pre-trial Release, in violation of 18
16 U.S.C. §§ 1349 and 3147, and Bank Fraud/Committed while on Pre-trial
17 Release, in violation of 18 U.S.C. §§ 1344(2) and 3147.
18 On November 6, 2022, defendant filed a motion to withdraw his
19 guilty pleas (except as to the tax evasion count in the 2018 Case).
20 On December 5, 2022, the Honorable Virginia A. Phillips, United
21 States District Judge, denied defendant’s motion to withdraw his
22 guilty pleas. Judge Phillips sentenced defendant to 120 months in
23 prison.
24 On May 10, 2023, defendant filed three consolidated appeals
25 challenging Judge Phillips’ denial of his motion to withdraw his
26 guilty pleas.
27
28
Case 5:21-cr-00170-JGB Document 138 Filed 03/11/25 Page 7 of 12 Page ID
#:1199
1 On August 18, 2023, the Ninth Circuit dismissed defendant’s
2 three consolidated appeals due to the appellate waiver in his
3 consolidated plea agreement.
4 On November 13, 2024, defendant filed his motion to vacate, set
5 aside, or correct his 120-month sentence under 28 U.S.C. § 2255. In
6 the Section 2255 motion, defendant makes the following claims about
7 three of his attorneys in the Related Cases:
8 • Defendant claims that Mark Werksman provided ineffective
9 assistance of counsel in 2021 when he allegedly coerced
10 defendant into pleading guilty in the Related Cases (Motion
11 at 16-23);
12 • Defendant claims that, in 2022, Edward Robinson provided
13 ineffective assistance of counsel when he allegedly failed to
14 properly advocate for defendant’s unsuccessful motion to
15 withdraw his guilty pleas in the Related Cases (id. at 23-
16 52); and
17 • Defendant claims that, in 2023, Rachel Robinson provided
18 ineffective assistance of counsel relating to defendant’s
19 unsuccessful appeal of Judge Phillips’ denial of defendant’s
20 motion to withdraw his guilty pleas (id. at 52-59).
21 II. DEFENDANT HAS WAIVED THE ATTORNEY-CLIENT PRIVILEGE
22 Defendant has waived the attorney-client privilege with respect
23 to the issues raised in his Section 2255 motion because defendant
24 relies on communications between himself and his attorneys, as well
25 as an examination of his attorneys’ efforts, in support of his
26 ineffective assistance of counsel claims. Consequently, the
27 government requests that the Court declare that such a waiver has
28
2
Case 5:21-cr-00170-JGB Document 138 Filed 03/11/25 Page 8 of 12 Page ID
#:1200
1 occurred and order defendant’s three attorneys – Mr. Werksman, Mr.
2 Robinson, and Ms. Robinson – to disclose to the government
3 communications with defendant concerning the events and facts
4 involved in defendant’s guilty pleas, sentencing, and appeal.
5 Defendant claims that advice given by his attorneys, and his
6 attorneys’ tactical decisions not to pursue certain avenues of
7 investigation or argument, constituted ineffective assistance of
8 counsel. To make out such a claim, defendant must show that his
9 attorneys’ actions were deficient, and resulted in subsequent
10 prejudice. Hendricks v. Vasquez, 974 F.2d 1099, 1109 (9th Cir.
11 1992). To demonstrate deficiency, “the defendant must show that
12 counsel’s actions were outside the wide range of professionally
13 competent assistance.” Id. (internal quotations omitted). A
14 lawyer’s tactical decision to pursue (or not pursue) certain avenues
15 generally does not amount to ineffective assistance. See United
16 States v. Leoni, 326 F.3d 1111, 1120-21 (9th Cir. 2003); United
17 States v. Sanchez-Cervantes, 282 F.3d 664, 672 (9th Cir.) (“It is not
18 the role of courts to second-guess attorney’s tactical decisions.”),
19 cert. denied, 537 U.S. 939 (2002).
20 In his motion, defendant complains about the three attorneys’
21 conduct with respect to his guilty pleas, sentencing, and appeal.
22 Conversations between defendant and his attorneys regarding these
23 claims, and the attorneys’ explanation of their strategy, may be
24 probative of whether standards of professional competence have been
25 met. Accordingly, by claiming ineffective assistance of counsel,
26 defendant has waived the attorney-client privilege. See Bittaker v.
27 Woodford, 331 F.3d 715, 716 (9th Cir. 2003) (“It has long been the
28
3
Case 5:21-cr-00170-JGB Document 138 Filed 03/11/25 Page 9 of 12 Page ID
#:1201
1 rule in the federal courts that, where a habeas petition raises a
2 claim of ineffective assistance of counsel, he waives the attorney-
3 client privilege as to all communications with his allegedly
4 ineffective lawyer.”), cert. denied, 124 S. Ct. 536 (2003); see also
5 Wharton v. Calderon, 127 F.3d 1201, 1203 (9th Cir. 1997) (defendant
6 waived attorney-client privilege by raising ineffective assistance of
7 counsel claim in a habeas proceeding); Tasby v. United States, 504
8 F.2d 332, 336 (8th Cir. 1974) (attorney-client privilege waived when
9 defendant, in a Section 2255 proceeding, attacked his attorney’s
10 competence in giving legal advice, and ascribed course of action to
11 his attorney that raised specter of incompetence). The rationale for
12 the rule is explained in Tasby:
13 A client has a privilege to keep his conversations with his
attorney confidential, but that privilege is waived when a
14 client attacks his attorney’s competence in giving legal
advice, puts in issue that advice and ascribes a course of
15 action to his attorney that raises the specter of
ineffectiveness or incompetence. . . . Surely a client is
16 not free to make various allegations of misconduct and
incompetence while the attorney’s lips are sealed by
17 invocation of the attorney-client privilege. Such an
incongruous result would be inconsistent with the object
18 and purpose of the attorney-client privilege and a patent
perversion of the rule. When a client calls into public
19 question the competence of his attorney, the privilege is
waived.
20
21 Tasby, 504 F.2d at 336. The same reasoning applies here.
22 III. THE GOVERNMENT’S PROPOSED ORDER STRIKES AN EFFECTIVE BALANCE
BETWEEN PROTECIGING DEFENDANT’S ATTORNEY-CLIENT PRIVILEGE AND
23 ALLOWING THE FAIR RESOLUTION OF THE SECTION 2255 MOTION
24 As the Ninth Circuit explained in Bittaker, the waiver of the
25 attorney-client privilege created by a defendant’s claim of
26 ineffective assistance of counsel is not unlimited. Instead, courts
27 must impose a waiver that is “no broader than needed to ensure the
28
4
Case 5:21-cr-00170-JGB Document 138 Filed 03/11/25 Page 10 of 12 Page ID
#:1202
1 fairness of the proceedings before it.” Bittaker, 331 F.3d at 720.
2 In addition, the defendant must have an opportunity to abandon the
3 claim as an alternative to waiver. Id. at 721. Finally, the court
4 imposing the waiver must be able to bind the party receiving the
5 privileged materials to the court’s limitations and conditions. Id.
6 The government’s proposed order satisfies all three of these
7 objectives.
8 Specifically, the government proposes the following procedures
9 for obtaining information regarding attorney-client communications
10 subject to the waiver resulting from defendant’s ineffective
11 assistance of counsel claims:
12 • The government will propound interrogatories to Mr. Werksman,
13 Mr. Robinson, and Ms. Robinson (“Defense Counsel”);
14 • Defense Counsel will prepare written answers to the
15 interrogatories, or note objections to particular
16 interrogatories;
17 • Defense Counsel will provide the interrogatories and their
18 proposed answers to defendant for defendant’s review;
19 • Defendant will have an opportunity to note any objections to
20 interrogatories believed to be beyond the scope of the
21 waiver, providing reasons for such objections;
22 • The parties will determine whether to litigate any objections
23 to the interrogatories;
24 • Defendant will be provided an opportunity to withdraw his
25 ineffective assistance of counsel claims if he does not want
26 her attorneys’ answers to the interrogatories deemed to be
27
28
5
Case 5:21-cr-00170-JGB Document 138 Filed 03/11/25 Page 11 of 12 Page ID
#:1203
1 within the scope of the waiver to be disclosed to the
2 government;
3 • If defendant elects not to withdraw his ineffective
4 assistance of counsel claims, the answers to the
5 interrogatories deemed to be within the scope of the waiver
6 will be provided to the government in declaration form with a
7 certification that the answers are provided by counsel under
8 penalty of perjury; and
9 • The disclosure to the government of Defense Counsel’s answers
10 to the interrogatories will be subject to a protective order
11 limiting use of the answers to litigation of defendant’s
12 ineffective assistance of counsel claims.
13 The government’s proposed order also includes protective
14 provisions specifying that: (a) the information disclosed in response
15 to the government’s interrogatories will be considered confidential
16 information and, absent further Court order, will not be disclosed by
17 the USAO to any other law enforcement or prosecuting agency except as
18 necessary to assist in the government’s litigation of the ineffective
19 assistance of counsel claims presented in defendant’s motion; (b) any
20 pleadings referencing the information disclosed in response to the
21 government’s interrogatories will be filed under seal; (c) the
22 information disclosed in response to the government’s interrogatories
23 will be used by the government only for the purpose of litigating the
24 claims presented in the motion; (d) the government will provide a
25 copy of the Court’s order to any individual who is provided access to
26 the information disclosed in response to the government’s
27 interrogatories; and (e) the protections of the protective order
28
6
Case 5:21-cr-00170-JGB Document 138 Filed 03/11/25 Page 12 of 12 Page ID
#:1204
1 shall remain in place even after litigation of defendant’s
2 ineffective assistance of counsel claims is completed.
3 These procedures strike an appropriate balance between the
4 interest of the government in responding to defendant’s motion and
5 defendant’s interest in protecting his attorney-client privilege.
6 IV. CONCLUSION
7 Defendant waived the attorney-client privilege by raising claims
8 of ineffective assistance of counsel, which put at issue the nature
9 of his attorneys’ advice and the competency of the legal advice he
10 received. The government respectfully requests that the Court order
11 a partial waiver of the attorney-client privilege and compel
12 disclosure by Defense Counsel of all communications with defendant
13 that relate to the ineffective assistance of counsel claims presented
14 in defendant’s § 2255 motion, as well as any facts or events relating
15 to those claims.
16
17 Dated: March 10, 2025 Respectfully submitted,
18 JOSEPH T. MCNALLY
Acting United States Attorney
19
LINDSEY GREER DOTSON
20 Assistant United States Attorney
Chief, Criminal Division
21
22 /s/
MATTHEW O’BRIEN
23 Assistant United States Attorney
24 Attorneys for Respondent
UNITED STATES OF AMERICA
25
26
27
28
7
File and source
- File
- gov.uscourts.cacd.826563.138.0.pdf
- Size
- 270,918 bytes
- SHA-256
- 594ab5ab983d616bb2c9a397d329c36d9b6c033bc81f3be7303c411314bfae15
- Original
- PACER (login required)