USA v. GOGUEN

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
) 	1:11-cr-00003-JAW
v. 	) 	1:16-cr-00167-JAW
)
ROBERT GOGUEN 	)
ORDER ON GOVERNMENT’S MOTION FOR COURT ORDER
AUTHORIZING DISCLOSURE
A defendant filed a motion to withdraw his guilty plea to a new criminal charge
and his admission to violations of the terms of his supervised releasee on an earlier
criminal conviction. 	In the motion, the defendant alleges that his prior attorney
provided ineffective assistance of counsel and that his attorney’s conduct justifies the
withdrawal of his guilty plea and admissions. 	In response the government moves
this Court for an order allowing the defendant’s former counsel to disclose what would
otherwise be confidential communications with the defendant in order to allow the
government to investigate the accuracy of the defendant’s allegations against his
former attorney. 	Concluding that the government’s request is narrowly tailored to
address only the issues that the defendant has raised and that the revelation of this
otherwise confidential information is necessary for the government to adequately
respond to the defendant’s allegations, the Court grants the government’s motion and
authorizes 	the 	defendant’s 	former 	attorney 	to 	provide 	otherwise 	confidential
documents and to produce an affidavit to the Government disclosing otherwise
confidential matters.
Case 1:16-cr-00167-JAW Document 150 Filed 04/02/20 Page 1 of 5 PageID #:
<pageID>

2
I. 	BACKGROUND
On January 16, 2020, Robert Goguen filed a motion to withdraw his guilty
pleas in both pending matters before the Court. Def.’s Pro Se Mot. to Withdraw Guilty
Plea(s) and Req. for Order to Disqualify Hon. John A. Woodcock, Jr. (ECF No. 309;
ECF No. 132) (Def.’s Mot.).1 After Mr. Goguen filed his motion to withdraw, on
January 23, 2020, the United States (Government) filed a motion for a court order
authorizing 	Attorney 	Hunter 	Tzovarras 	to 	disclose 	confidential 	attorney-client
communications. 	Gov’t’s Mot. for Ct. Order Authorizing Disclosure of Confidential
Communications (ECF No. 313; ECF No. 136) (Gov’t’s Mot.). On February 18, 2020,
Mr. Goguen objected to the Government’s motion. 	Def.’s Obj. to Disclosure of
Confidential Communications (ECF No. 321; ECF No. 143) (Def.’s Opp’n). 	On
February 27, 2020, the Government filed a reply. Gov’t’s Reply to Def.’s Obj. to Mot.
for Ct. Order Authorizing Disclosure of Confidential Communications (ECF No. 325;
ECF No. 145) (Gov’t’s Reply).
II. 	DISCUSSION
The Court is not convinced that the Government and Mr. Goguen are very far
apart regarding the Government’s motion. 	In his motion to withdraw, Mr. Goguen
makes several claims that Attorney Tzovarras was ineffective in his representation
of Mr. Goguen and that his ineffective representation led Mr. Goguen to plead guilty
1 	To simplify citation, the Court has not recited the docket number for Mr. Goguen’s two criminal
cases in this Court each time it referred to a filed document. Instead, the higher number is a citation
to 1:11-cr-00003-JAW and the lower number to 1:16-cr-00167-JAW.
On February 24, 2020, the Court issued an order denying the recusal part of Mr. Goguen’s
motion. Order on Def.’s Mot. to Recuse (ECF No. 323; ECF No. 144). On March 3, 2020, Mr. Goguen
appealed this order in both cases to the Court of Appeals for the First Circuit. Def.’s Notice of Appeal
(ECF No. 326; ECF No. 146).
Case 1:16-cr-00167-JAW Document 150 Filed 04/02/20 Page 2 of 5 PageID #:
<pageID>

3
to the new criminal conduct and admit to violations of his supervised release when
he was in fact innocent of both the new criminal conduct and the supervised release
violations. Def.’s Mot. at 10-23.
In his objection to the Government’s motion, citing United States v. Pinson, 584
F.3d 972 (10th Cir. 2009), which itself quotes Strickland v. Washington, 466 U.S. 668
(1984), Mr. Goguen acknowledges that disclosure of otherwise confidential attorney-
client communications “may be critical . . . to a proper assessment of counsel’s . . .
litigation decisions.” Def.’s Opp’n at 2 (some alterations in original) (quoting Pinson,
584 F.3d at 978 (quoting Strickland, 466 U.S. at 691)). Mr. Goguen’s main worry is
that the Government will go on a “fishing expedition.” 	Id. at 4. He asks that if the
Court is going to grant the Government’s motion, the order limit the areas that
Attorney Tzovarras will be allowed to disclose, and he objects to the in-person
conference between the prosecutor and Attorney Tzovarras. Id. at 4-5.
In its reply, the Government agrees not to proceed with an interview of
Attorney Tzovarras so long as he is required to submit an affidavit instead. 	Gov’t’s
Reply at 5. Furthermore, in reply to Mr. Goguen’s concern about a fishing expedition,
the Government proposes that Attorney Tzovarras release documents relevant to
certain specific topics. 	Id. at 4-5. 	The Court reviewed Mr. Goguen’s allegations,
compared them to the areas for which the Government wishes to obtain Attorney
Tzovarras’ responses, and concludes that the areas are sufficiently narrow and
specific to allow the intrusion on the attorney-client privilege as is necessary for the
Government to properly respond to Mr. Goguen’s allegations.
Case 1:16-cr-00167-JAW Document 150 Filed 04/02/20 Page 3 of 5 PageID #:
<pageID>

4
The Court overrules Mr. Goguen’s more generalized objections to the disclosure
of this information, Def.’s Opp’n at 2-5, and it issues this Order without prejudice to
the Government’s further motion, if necessary, to seek additional discovery.
III. 	CONCLUSION
The Court GRANTS the Government’s Motion for Court Order Authorizing
Disclosure of Confidential Communications (ECF No. 313; ECF No. 136). The Court
authorizes the Government to obtain information, correspondence, notes, and other
documents 	that 	would 	otherwise 	be 	confidential 	communications 	between 	Mr.
Goguen and Attorney Tzovarras and work product from Attorney Tzovarras, and the
Court 	also 	authorizes 	Attorney 	Tzovarras 	to 	produce 	such 	confidential
communications and work product to the Government. The Court further authorizes
Attorney Tzovarras to disclose otherwise confidential communication in affidavit
form in response to the Government’s inquiries. The Court limits Attorney Tzovarras’
disclosures both of documents and by affidavit to the following areas:
(1) whether Attorney Tzovarras properly advised his client concerning the
evidence that supported the crime that Mr. Goguen was charged with
having committed as alleged in Section II.A of Mr. Goguen’s Pro Se Motion
to Withdraw Guilty Pleas;
(2) whether Attorney Tzovarras properly advised his client concerning Mr.
Goguen’s claim that he did not know there was illicit material on the laptop
and 	his 	claim 	that 	Attorney 	Tzovarras 	misadvised 	him 	that 	the
Case 1:16-cr-00167-JAW Document 150 Filed 04/02/20 Page 4 of 5 PageID #:
<pageID>

5
Government needed only to show that he possessed the laptop as alleged in
Section II.B of Mr. Goguen’s Pro Se Motion to Withdraw Guilty Pleas;
(3) whether Attorney Tzovarras conducted an adequate investigation of the
areas Mr. Goguen identified in Section III.C of Mr. Goguen’s Pro Se Motion
to Withdraw Guilty Pleas; and,
(4) whether Attorney Tzovarras properly advised Mr. Goguen with respect to
the burden of proof applicable to the criminal proceedings against him as
set forth in Section III.I of Mr. Goguen’s Pro Se Motion to Withdraw Guilty
Plea.
Finally, to maintain control of the pending motion and to make certain that
the matter is proceeding to resolution, the Court ORDERS the Government to file a
status report within twenty-eight days of the date of this Order as to the status of
compliance with this Order and of the pending motion to withdraw plea and
admission.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of April, 2020
Case 1:16-cr-00167-JAW Document 150 Filed 04/02/20 Page 5 of 5 PageID #:
<pageID>