ORDER (1) GRANTING IN PART AND DENYING IN PART GOVERNMENT'S MOTION REQUESTING ORAL HEARING, AND, IN THE ALTERNATIVE FOR AN ORDER FINDING WAIVER OF ATTORNEY-CLIENT PRIVILEGE (ECF #186) AND (2) SETTING PROCEDURE FOR EVIDENTIARY HEARING
MATTHEW F. LEITMAN, District Judge.
On March 9, 2016, a jury found Defendant Curtis Scott guilty of aiding and abetting a carjacking, aiding and abetting the use and/or carrying of a firearm during a crime of violence, and making a false statement to a federal agent. Scott has now filed a motion for new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. (See ECF ## 144 and 162.) On June 16, 2017, the Court ordered an evidentiary hearing on four issues Scott raised in his motion for a new trial. (See ECF #180.) All of the issues that are the subject of the evidentiary hearing relate to the alleged ineffective assistance of Scott's trial counsel, Mr. Leroy Soles.
On June 30, 2017, the Government filed a motion in which it asked the Court to hold "an oral hearing prior to the scheduling of an evidentiary hearing on the issue of prejudice." (ECF #186 at Pg. ID 3047.) In the alternative, the Government requested "that the Court enter an order finding that Scott has waived the [attorney-client] privilege" with respect to the subjects underlying his ineffective assistance of counsel claim. (Id.)
To the extent the Government's motion requests an oral hearing on the issue of prejudice prior to the scheduling of an evidentiary hearing, the motion is
To the extent the Government's motion requests that the Court enter an order finding that Scott has waived the attorney-client privilege with respect to the subjects underlying his ineffective assistance of counsel claim, the motion is
At the August 8 conference, Scott waived the attorney-client privilege with respect to subjects underlying his ineffective assistance claim. Based on Scott's oral waiver and the applicable caselaw (cited in the Government's motion), the Court
In particular, the attorney-client privilege is waived with respect to, among other things, the four items specifically identified in the Court's June 16, 2017, written Order. (See ECF #180.) These items are:
In addition, the attorney-client privilege is waived with respect to the following issues as specifically identified by Scott at the August 8 status conference:
Absent further order of the Court, the only witnesses who may testify at the evidentiary hearing are (1) Scott, (2) Soles, (3) Monico Hayes, and (4) Paijah McCloud. In addition, absent further order of the Court, the only subjects on which the Court will allow these four witnesses to testify are the eight subjects specifically-identified above.
The parties shall exchange proposed exhibits by not later than 1 week before the scheduled evidentiary hearing.