United States District Court, W.D. Michigan, Northern Division
HOLMES BELL, UNITED STATES DISTRICT JUDGE.
pleaded guilty to wire fraud, and the Court sentenced him to
a 20-year term of imprisonment, a 3-year period of supervised
release, a $250, 000 fine, and a mandatory special assessment
of $100. (ECF No. 15.) While on supervised release, Defendant
violated several release conditions. He pleaded guilty to
four violations, including filing a falsified monthly report,
in violation of 18 U.S.C. § 1001, which was a Grade B
violation. The matter is before the Court on Defendant's
motions for reconsideration under Federal Rule of Civil
Procedure 60(b) (ECF Nos. 66, 67), and motion to produce
documents (ECF No. 69). Because Defendant filed the motions
in his criminal case, the Court will construe both as motions
for reconsideration under W.D. Mich. LCrR 47.3. In the
motions, Defendant argues that his attorney violated
attorney-client privilege by disclosing how much he charged
Defendant for his retainer fee. He also claims that, because
of his attorney's disclosure of the fee, his attorney was
ineffective and coerced him into entering his guilty plea.
order to prevail on a motion for reconsideration, the movant
must make two showings. First, “the movant must
‘demonstrate a palpable defect by which the Court and
the parties have been mislead[.]'” United
States v. Watson, 549 F.Supp.2d 961, 963 (W.D. Mich.
2008) (Bell, J.) (quoting W.D. Mich. LCrR 47.3(a). Second,
“the movant must ‘show that a different
disposition of the case must result from a correction' of
the palpable defect.” Id.
argues that his attorney violated attorney-client privilege
by disclosing the amount of the monthly retainer fee to the
Magistrate Judge. Defendant claims that his Grade B violation
was based on confidential information between him and his
attorney. Under federal common law, attorney-client privilege
only precludes the disclosure of communications between
attorney and client, and it does not protect against
disclosure of facts underlying the communication like
attorney's fees. Humphreys, Hutcheson & Moseley
v. Donovan, 755 F.2d 1211, 1219 (6th Cir. 1985) (citing
In re Grand Jury Invest. No. 83-2-35, 723 F.2d 447
(6th Cir. 1983), cert. denied, 467 U.S. 1246 (1984).
Because attorney-client privilege did not protect against the
attorney's disclosure of his monthly retainer fee, it was
not a palpable defect for the Court to rely upon that
information during Defendant's supervised release
violation hearing. Moreover, Defendant admitted at the
hearing that he filed a falsified monthly report by failing
to disclose to the fee. Thus, Defendant is not entitled to
relief on this claim.
addition, Defendant argues that because of his attorney's
disclosure of the fee amount, he was coerced into making a
guilty plea. The Sixth Circuit “will affirm a district
court's sentence of imprisonment upon revocation of
supervised release if it shows consideration of the relevant
statutory factors and is not plainly unreasonable.”
United States v. McClellan, 164 F.3d 308, 309 (6th
Cir. 1999). The policy statements contained in the guidelines
are merely advisory, and the Court need only consider them
before imposing sentence upon revocation of supervised
release. Id. at 310. Further, the Court must
consider the factors listed in 18 U.S.C. § 3553.
Id. But the Court need not recite any “magic
words” explaining whether and how it considered the
policy statements or how it weighed the § 3553 factors.
the hearing, the Court asked Defendant if he knew that he
would be subject to a maximum of two years in prison, and
Defendant said that he did. (ECF No. 68, PageID.266.) The
Court then asked if Defendant still wished to plead guilty,
and Defendant stated that he did. (Id.) The Court
then discussed the underlying facts of the charged
violations, and Defendant admitted to each one, including
falsifying a monthly report. (Id. at PageID.267-68.)
Defendant knowingly, voluntarily, and intelligently pleaded
guilty to violating four conditions of supervised release.
Then, the Court considered the sentencing guidelines as well
as the 18 U.S.C. § 3553(a) factors, and sentenced
Defendant to 24 months in prison with no supervised release
to follow. (Id. at PageID.279-80.) Although the
Court did not expressly discuss the policy statements, it is
clear that it considered the relevant factors. See United
States v. Salomon-Carrillo, F. App'x 3 (6th Cir.
2004). The Court considered the established sentencing range,
and noted that was imposing prison time to promote
Defendant's respect for the law and to protect the public
from Defendant's financial and fraudulent activity. (ECF
No. 68, PageID.279.) The Court also considered
Defendant's prior criminal history and characteristics.
(Id. at PageID.280.) The Court did not violate
Defendant's due process rights, and the judgment is not
plainly unreasonable. Moreover, Defendant has not shown a
palpable defect upon which the Court and parties have been
mislead. Therefore, Defendant is not entitled to relief on
Defendant argues that his counsel was ineffective because he
did not have Defendant's consent to disclose the fee
amount. As discussed above, attorney-client privilege does
not extend to such communications. Further, Defendant has not
shown that disclosing this amount to the Magistrate Judge
amounted to ineffective assistance under Strickland v.
Washington, 466 U.S. 668 (1984). There is a two-prong
test to evaluate claims of ineffective assistance of counsel.
Id. at 687-88. Defendant must prove that (1)
counsel's performance fell below an objective standard of
reasonableness; and (2) that counsel's deficient
performance prejudiced the defendant resulting in an
unreliable or fundamentally unfair outcome. Id. A
court considering a claim of ineffective assistance must
“indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance.” Id. at 689.
Defendant argues that, because this information is protected
by attorney-client privilege, counsel's disclosure fell
below an objective standard of reasonableness. Since the
information was not protected by attorney-client privilege,
Defendant has failed to show deficient performance or a
palpable defect. Therefore, Defendant is not entitled to
relief for his ineffective assistance of counsel claim.
also filed a motion to produce documents. Defendant requested
copies of his written monthly reports from Probation Officer
Lindquist (ECF No. 69-1) and the Assistant United States
Attorney (ECF No. 69-2) under the Freedom of Information Act
and the Privacy Act. Officer Lindquist explained that
Defendant did not have a right under these Acts to obtain the
documents, and that he should contact the Federal Bureau of
Prisons and/or the U.S. Parole Commission. (ECF No. 69-1,