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United States of America v. David Opollo Ross

March 9, 2012

UNITED STATES OF AMERICA, PLAINTIFF-RESPONDENT.
v.
DAVID OPOLLO ROSS, (01) DEFENDANT-PETITIONER. UNITED STATES OF AMERICA,
PLAINTIFF-RESPONDENT.
v.
LEI LAVARIAS ROSS, (02) ) A.K.A. "LEI L. LAVARIAS" A.K.A. "LEI LOPEZ", DEFENDANT-PETITIONER.



The opinion of the court was delivered by: David Alan Ezra United States District Judge

ORDER: (1) CONSOLIDATING CASES; (2) FINDING LIMITED WAIVER OF ATTORNEY-CLIENT PRIVILEGE; AND (3) EXTENDING TIME IN WHICH THE GOVERNMENT MAY RESPOND TO PETITIONER DAVID ROSS'S § 2255 MOTION

Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a hearing. After considering the Government's Motion, the Court GRANTS the Motion to: (1) consolidate cases; (2) find attorney-client privilege waiver; and (3) extend time in which the Government may respond to Petitioner David Ross's § 2255 Motion. (Doc. # 314.)

BACKGROUND

On February 16, 2010, a jury found Petitioners David Ross and Lei Ross (collectively, "Petitioners") guilty of one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371 and five counts of tax evasion in violation of 26 U.S.C. § 7201. (Doc. # 201.) On July 12, 2010, the Court sentenced Petitioner David Ross to 45 months imprisonment and Lei Ross to 18 months imprisonment, with each term to be followed by 3 years of supervised release. (Doc. # 246, 247.)

Petitioners appealed their convictions and sentences. (Doc. # 256, 267.) On July 11, 2011, the United States Court of Appeals for the Ninth Circuit affirmed Petitioners' convictions and sentences. (Doc. # 305.)

On January 26, 2012, David Ross filed a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence. David Ross alleges his trial counsel, Alan Richey, Esq., provided ineffective assistance in a variety of respects. On February 9, 2012, Lei Ross also filed a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence. Petitioners assert grounds that Alan Richey had an actual conflict of interest that prevented "critical, exculpatory, and admissible evidence from being presented to the jury." (Doc. # 307 at 5; Doc. # 311 at 5.) David Ross claims that this conflict of interest deprived him of his Sixth Amendment right to effective counsel, and Lei Ross claims that this conflict deprived her of her right to a fair trial and effective assistance of counsel. (Doc. # 307 at 5; Doc. # 311 at 5.) In addition, Lei Ross claims that her attorney at trial, Michael Green, Esq., was also ineffective by not asking for a severance mid-trial, when the conflict became apparent. (Doc. # 311 at 5.)

On March 6, 2012, the Government filed the instant Motion seeking:

(1) to consolidate Petitioners' § 2255 cases; (2) an order finding a limited waiver of attorney-client privilege; and (3) to extend the time in which the Government may file a response to David Ross's § 2255 motion. (Doc. # 314.)

DISCUSSION

I. Consolidation

A court may order consolidation if the actions "involve a common

question of law or fact[.]" Fed. R. Civ. P. 42(a). Under Rule 42(a), a court has broad discretion to consolidate cases pending in that district. See Investors Research Co. v. United States Dist. Court for Cent. Dis. of Cal., 877 F.2d 777 (9th Cir. 1989). Such discretion, however, is not unfettered. See Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990). The court should weigh the time and effort that consolidation would save against any inconvenience, delay, or expense it would cause. See Huene v. United States, 743 F.2d 703, 704 (9th Cir. 1984).

Here, Petitioners' motions involve a common legal and factual question, that is, whether David Ross's counsel had an actual conflict of interest that resulted in critical evidence being kept from the jury in Petitioners' joint trial. Additionally, requiring separate proceedings for these motions would result in duplication of ...


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