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United States v. Clark

United States District Court, N.D. Oklahoma

July 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JACK JIM CLARK, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE

         Now before the Court are defendant Jack Jim Clark's motion to reconsider (Dkt. # 90), motion to determine the constitutional validity of the appointment to office of Charles M. McLoughlin (Dkt. # 91), motion for leave to conduct discovery (Dkt. # 92), and motion to unseal and for other relief (Dkt. # 100).

         I.

         On May 1, 2019, defendant, a federal prisoner appearing pro se, filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Dkt. # 79). Defendant raises four grounds for relief in his § 2255 motion. First, defendant argues that his former defense attorney, Martin G. Hart, was ineffective in violation of the Sixth Amendment by (1) failing to know the law; (2) failing to investigate the district court's jurisdiction and judicial power; (3) failing to move to dismiss for lack of an Article III live case or controversy; and (4) failing to determine and argue that the district court lacked subject matter jurisdiction. Id. at 4. Second, defendant argues that plaintiff was not represented by a properly appointed officer of the United States, rendering the indictment unconstitutional. Id. at 5. Third, defendant argues that 28 U.S.C. § 116(a) is in violation of the Treaties of 1832, 1833, 1856, and 1866, and that 28 U.S.C. § 547 and 18 U.S.C. §§ 287 and 1341 do not apply inside the Creek Nation's boundaries. Id. at 6. Finally, defendant argues that Hart provided ineffective assistance of counsel in violation of the Sixth Amendment by failing to obtain and review the first three indictments to determine if the third superseding indictment related back to the first three indictments, and, if not, for failing to move to dismiss counts one through 39 as barred by the statute of limitations. Id. at 8.

         The Court issued an order (Dkt. # 83) directing plaintiff to respond to defendant's § 2255 motion. Plaintiff contacted Hart in order to gather evidence to respond to defendant's claims of ineffective assistance of counsel. Dkt. # 85, at 1-2. Hart requested that, before he prepare an affidavit addressing defendant's allegations, plaintiff obtain an order from the Court declaring that defendant has waived his attorney-client privilege by filing a § 2255 motion raising claims of ineffective assistance of counsel. Id. On June 3, 2019, the Court granted plaintiff's motion for an order recognizing that defendant has waived attorney-client privilege with Hart; however, the Court explicitly limited defendant's waiver “to issues raised in his ineffective assistance of counsel claims.” Dkt. # 89, at 1 (citing United States v. Pinson, 584 F.3d 972 (10th Cir. 2009)). Defendant now moves for reconsideration of the Court's order. Plaintiff filed a response (Dkt. # 94) in opposition to defendant's motion, and defendant filed a reply (Dkt. # 97).

         In addition, defendant moves to determine the constitutional validity of the appointment to office of Charles M. McLoughlin (Dkt. # 91), and moves for leave to conduct discovery into documents or records that show McLoughlin currently holds a proper appointment as an Assistant United States Attorney (AUSA) (Dkt. # 92). Plaintiff filed a response in opposition to each motion (Dkt. ## 95, 96), and defendant filed a reply (Dkt. # 98). Finally, defendant moves to unseal docket numbers 1, 470, and 471 in In re United States Attorneys and Clerks, No. 09-MC-0005-CVE.

         II.

         The Court first addresses defendant's motion to reconsider. “‘[A] motion to reconsider may be granted when the court has misapprehended the facts, a party's position, or the law.'” United States v. Huff, 782 F.3d 1221, 1224 (10th Cir. 2015) (quoting Servants of The Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). “‘Specific situations where circumstances may warrant reconsideration include ‘(1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.'” Id.

         Defendant moves for reconsideration of the Court's order finding an implied waiver of attorney-client privilege, because neither plaintiff nor the Court has identified “a single word” alleged by defendant in his § 2255 claims that brings into question any communication between Hart and defendant. Further, defendant argues that Hart can respond to defendant's allegations of ineffective assistance of counsel without having to make public any privileged communication. Defendant also argues that the language limiting the waiver to “issues raised in [defendant's] ineffective assistance of counsel claims” is too broad. Defendant concedes, however, that he waives attorney-client privilege as to whether Hart informed him of the three earlier indictments, and any advice Hart gave defendant in relation to why he did not move to dismiss counts one through 39.

         Defendant fails to establish a sufficient basis for reconsideration. Defendant does not argue that there was an intervening change in the controlling law, or that there is new evidence that was previously unavailable. Further, defendant does not demonstrate that the Court's order constituted “clear error” of law or fact, or that reconsideration is necessary to “prevent manifest injustice.” The established law in the Tenth Circuit is that there is an “implied waiver of attorney-client privilege that arises when a prisoner claims ineffective assistance of counsel.” Pinson, 584 F.3d at 978. Here, defendant raises two claims of ineffective assistance of counsel in his § 2255 motion. Thus, consistent with Tenth Circuit precedent, the Court held that defendant has implicitly waived attorney-client privilege with respect to those two claims. Nonetheless, defendant argues that there is no implicit waiver of attorney-client privilege because neither plaintiff nor the Court has “identified a single aspect of grounds one and four [that] implicates a communication between Hart and Defendant.” Dkt. # 90, at 3. Defendant fails to realize, however, that raising a claim of ineffective assistance of counsel, in and of itself, “puts communications between himself and his attorney directly in issue.” Pinson, 584 F.3d at 977. As the Supreme Court explained in Strickland v. Washington, 466 U.S. 668, 691 (1984), “[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.” Therefore, “inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's” advice, investigation decisions, and litigation decisions. Id.

         Further, with respect to the scope of the waiver, all parties agree that defendant's waiver of attorney-client privilege is limited “to issues raised in his ineffective assistance of counsel claims” (i.e., ground one and four of the § 2255 motion). Although defendant disagrees with the scope of the waiver, defendant fails to show that the Court's limitation constitutes a clear error of law or fact. Accordingly, the Court finds that defendant has failed to establish a sufficient basis for reconsideration, and defendant's motion for reconsideration should be denied.

         III.

         The Court turns to defendant's motion to determine the constitutional validity of McLoughlin's appointment to office (Dkt. # 91), defendant's motion for leave to conduct discovery (Dkt. # 92), and defendant's motion to unseal documents (Dkt. # 100).

         Defendant argues that AUSA McLoughlin's appointment under 28 U.S.C. § 542(a), which does not require appointment by presidential nomination with advice and consent of the Senate, violates the Appointments Clause. The Appointments Clause of the U.S. Constitution requires “principal officers” to be nominated and appointed by the President, with advice and consent of the Senate. U.S. Const. art. II, § 2, cl. 2. However, Congress may vest the appointment of “inferior officers” in the “President alone, in the Courts of Law, or in the Heads of ...


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