Full text
Case 3:21-cr-00269-WHO Document 75 Filed 12/21/23 Page 1 of 6
1 ISMAIL J. RAMSEY (CABN 189820)
United States Attorney
2
MARTHA BOERSCH (CABN 126569)
3 Chief, Criminal Division
4 SARAH E. GRISWOLD (CABN 240326)
Assistant United States Attorney
5
150 Almaden Boulevard, Suite 900
6 San Jose, California 95113
Telephone: (408) 535-5061
7 FAX: (408) 535-5081
sarah.griswold@usdoj.gov
8
Attorneys for United States of America
9
UNITED STATES DISTRICT COURT
10
NORTHERN DISTRICT OF CALIFORNIA
11
SAN FRANCISCO DIVISION
12
13 UNITED STATES OF AMERICA, ) CASE NO. 3:21-cr-269-WHO
)
14 Plaintiff, ) UNITED STATES’ APPLICATION FOR ORDER
) RE: WAIVER OF DEFENDANT’S ATTORNEY-
15 v. ) CLIENT PRIVILEGE AND DISCOVERY
)
16 LEBNITZ TRAN, A/K/A VIET TRAN, )
)
17 Defendant. )
)
18
19 The United States hereby moves the Court for an order (1) confirming waiver of defendant
20 Lebnitz Tran’s attorney-client privilege as to prior counsel Guyton Jinkerson; and (2) directing
21 Jinkerson and his successors George Benetatos and Alex Park to produce discovery relevant to
22 Jinkerson’s representation of Tran. The undersigned discussed this Application with current defense
23 counsel George Benetatos, who acknowledged Tran waived the attorney-client privilege as to Jinkerson
24 by filing the habeas motion. Tran’s motion under 28 U.S.C. § 2255 and supporting memorandum leave
25 no doubt that he has waived the attorney-client privilege as to Jinkerson. See Dkt. 62, 62-1.
26 BACKGROUND
27 From April 2020 through July 2020, Tran orchestrated a scheme to defraud the Paycheck
28 Protection Program (“PPP”) and Economic Injury Disaster Loan (“EIDL”) program of millions of
1
3:21-cr-269-WHO
30
Case 3:21-cr-00269-WHO Document 75 Filed 12/21/23 Page 2 of 6
1 dollars. Dkt. No. 32 at 5:6-11, 25-27. In his plea agreement, Tran admitted to taking numerous steps to
2 execute his scheme. He admitted to identifying pre-existing business entities and creating additional
3 business entities for the purpose of submitting false and fraudulent applications for PPP and EIDL loans.
4 Id. at 5:12-14. He admitted to making false and fraudulent statements to the Small Business
5 Administration (“SBA”) and lender in connection with these loan applications, including false and
6 fraudulent representations regarding the dates of operation of the loan applicant (e.g., falsely asserting
7 that the loan applicant had been in business longer than it actually had); falsely overstating the number
8 of persons employed by the loan applicant; and falsely overstating the loan applicant’s monthly payroll
9 expenses. Id. at 5:15-20. He admitted that he electronically submitted false and fictitious documents to
10 the SBA and lenders in support of the fraudulent PPP and EIDL loan applications, including false and
11 fictitious tax documents. Id. at 5:21-23.
12 Tran admitted that he “submitted and caused to be submitted at least 27 PPP loan applications
13 and at least seven EIDL loan applications, submitted in [his] name as well as in the name of others.” Id.
14 at 5:24-25. In total, he “sought approximately $8.5 million in PPP and EIDL loan proceeds through
15 these applications and received over $3.6 million from the SBA and SBA-approved lenders.” Id. at
16 5:25-27. Tran admitted that he “netted at least $1,719,233 from this scheme.” Id. at 5:27.
17 At his change of plea hearing, Tran reaffirmed that these facts were true. Tran also agreed to pay
18 restitution of at least $1,719,233. Id. at 10:12-13. Guyton Jinkerson represented Tran at the change of
19 plea hearing and sentencing. Dkt. Nos. 31, 46. During the Probation Office’s presentence investigation,
20 Tran relied on the factual basis of the plea agreement. Dkt. No. 39 at ¶ 22.
21 ARGUMENT
22 A. Tran waived attorney-client privilege by alleging ineffective assistance
23 In his § 2255 motion, Tran waived his attorney-client privilege for all communications with his
24 former counsel Guyton Jinkerson, who he claims rendered ineffective assistance in connection with his
25 plea and sentencing. The Court should issue an order so finding. A proposed order is attached.
26 By claiming ineffective assistance, a defendant waives attorney-client privilege as to all
27 communications with his lawyer regarding the representation he claims was deficient. See Hernandez
28 v. Tanninen, 604 F.3d 1095, 1100 (9th Cir. 2010) (“Disclosing a privileged communication or raising a
2
3:21-cr-269-WHO
30
Case 3:21-cr-00269-WHO Document 75 Filed 12/21/23 Page 3 of 6
1 claim that requires disclosure of a protected communication results in waiver as to all other
2 communications on the same subject.”); Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003) (“It has
3 long been the rule in the federal courts that, where a habeas petitioner raises a claim of ineffective
4 assistance of counsel, he waives the attorney-client privilege as to all communications with his allegedly
5 ineffective lawyer.”); Wharton v. Calderon, 127 F.3d 1201, 1203 (9th Cir. 1997) (same); Tasby v.
6 United States, 504 F.2d 332, 336 (8th Cir. 1974) (same).
7 Tasby helpfully summarizes the rationale for this rule. “A client has a privilege to keep his
8 conversations with his attorney confidential, but that privilege is waived when a client attacks his
9 attorney’s competence in giving legal advice, puts in issue that advice and ascribes a course of action to
10 his attorney that raises the specter of ineffectiveness or incompetence.” 504 F.2d at 336. The Tasby
11 court emphasized that “[s]urely a client is not free to make various allegations of misconduct and
12 incompetence while the attorney’s lips are sealed by invocation of the attorney-client privilege,” and that
13 “[s]uch an incongruous result would be inconsistent with the object and purpose of the attorney-client
14 privilege and a patent perversion of the rule.” Id.
15 “When a client calls into public question the competence of his attorney,” as Tran has done here,
16 “the privilege is waived.” Id. In the memorandum in support of his § 2255 motion, Tran claims
17 ineffective assistance, alleging that Jinkerson did not review with Tran documents including the
18 indictment, plea agreement, Presentence Investigation Report, or sentencing memoranda. Dkt. No. 62-1
19 at 5:7-9, 14:16-15:24. Tran further claims that Jinkerson did not provide the United States with financial
20 figures from Tran, refused to listen to Tran’s attempts to explain which loans Tran actually received,
21 which proceeds he never received, and which proceeds were legitimately obtained. Id. at 5:2-5. Tran
22 alleges that Jinkerson failed to review with him material information Tran provided him or informed
23 him existed. Id. at 5:6-7. Tran claims Jinkerson did not discuss or otherwise review with him
24 information Jinkerson received from the United States, including spreadsheets regarding the loans in
25 question. Id. at 8:23-26. Tran alleges that Jinkerson did not discuss with Tran or investigate issues
26 regarding Heather Russell, id. at 11:22-28, 16:4-21:28, Anthony Sanchez, id. at 22:1-25:8, or a Tesla
27 purchased with loan proceeds, id. at 25:9-27:8.
28 The United States thus moves the Court to find that Tran has waived attorney-client privilege as
3
3:21-cr-269-WHO
30
Case 3:21-cr-00269-WHO Document 75 Filed 12/21/23 Page 4 of 6
1 to Jinkerson.
2
B. The Court should order Jinkerson and Jinkerson’s successors, to furnish all
3 information and documents relating to Jinkerson’s representation in this matter
4 To establish whether Jinkerson complied with standards of professional competence in his
5 representation of Tran, this Court must analyze “whether ‘counsel’s representation fell below an
6 objective standard of reasonableness considering all the circumstances under prevailing professional
7 norms.’” Harris v. Wood, 64 F.3d 1432, 1435 (9th Cir. 1995) (quoting Strickland v. Washington, 466
8 U.S. 668, 688 (1984)) (emphasis added). The scope of the waiver here is thus necessarily broad,
9 encompassing all information and documents regarding Jinkerson’s representation of Tran in this matter.
10 The United States therefore moves the Court to order that Jinkerson and Jinkerson’s successors furnish
11 all information and documents regarding Jinkerson’s representation of Tran in this matter—including
12 but not limited to notes, memoranda, letters, emails, other communications, billing records, and similar
13 documents.
14 CONCLUSION
15 Because Lebnitz Tran has waived attorney-client privilege by alleging ineffective assistance of
16 counsel, the United States requests that the Court order that (1) Tran’s attorney-client privilege with
17 Guyton Jinkerson has been waived with respect to Jinkerson’s representation in this matter; and
18 (2) Guyton Jinkerson and Jinkerson’s successors, shall furnish all information and documents regarding
19 Jinkerson’s representation in this matter to the United States’ Attorney’s Office and the defendant within
20 45 days of the date of the Court’s order. The United States further requests 90 days from the date of the
21 Court’s order in which to file its response to Tran’s § 2255 motion on the merits.
22
23 DATED: December 21, 2023 Respectfully submitted,
24 ISMAIL J. RAMSEY
United States Attorney
25
26 /s/
SARAH E. GRISWOLD
27 Assistant United States Attorney
28
4
3:21-cr-269-WHO
30
Case 3:21-cr-00269-WHO Document 75 Filed 12/21/23 Page 5 of 6
1 ISMAIL J. RAMSEY (CABN 189820)
United States Attorney
2
MARTHA BOERSCH (CABN 126569)
3 Chief, Criminal Division
4 SARAH E. GRISWOLD (CABN 240326)
Assistant United States Attorney
5
150 Almaden Boulevard, Suite 900
6 San Jose, California 95113
Telephone: (408) 535-5061
7 FAX: (408) 535-5081
sarah.griswold@usdoj.gov
8
Attorneys for United States of America
9
UNITED STATES DISTRICT COURT
10
NORTHERN DISTRICT OF CALIFORNIA
11
SAN FRANCISCO DIVISION
12
13 UNITED STATES OF AMERICA, ) CASE NO. 3:21-cr-269-WHO
)
14 Plaintiff, ) ORDER GRANTING UNITED STATES’
) APPLICATION FOR ORDER
15 v. ) RE: WAIVER OF DEFENDANT’S ATTORNEY-
) CLIENT PRIVILEGE AND DISCOVERY
16 LEBNITZ TRAN, A/K/A VIET TRAN, )
)
17 Defendant. )
)
18 )
)
19
20 Upon a showing of good cause, the Court finds that by his motion pursuant to 28 U.S.C. § 2255,
21 in which he alleges ineffective assistance of counsel, defendant Lebnitz Tran has waived the attorney-
22 client privilege for communications with his prior counsel Guyton Jinkerson regarding his representation
23 of Tran in this matter.
24 IT IS HEREBY ORDERED that defendant Lebnitz Tran has waived the attorney-client privilege
25 with respect to his communications with attorney Guyton Jinkerson regarding this matter.
26 IT IS FURTHER ORDERED that Guyton Jinkerson and Jinkerson’s successors, shall furnish all
27 information and documents regarding Jinkerson’s representation of Lebnitz Tran in this matter,
28 including but not limited to notes, memoranda, letters, emails, other communications, billing records,
5
3:21-cr-269-WHO
30
Case 3:21-cr-00269-WHO Document 75 Filed 12/21/23 Page 6 of 6
1 and similar documents to the United States’ Attorney’s Office and the defendant within 45 days of the
2 date of this order.
3 IT IS FURTHER ORDERED that the United States has 90 days from the date of this order in
4 which to file its response to Lebnitz Tran’s § 2255 motion on the merits.
5 IT IS SO ORDERED.
6
7 DATED: December 21, 2023
HON. WILLIAM H ORRICK
8 United States Senior District Judge
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
3:21-cr-269-WHO
30