STIPULATION FOR LIMITED WAIVER OF THE ATTORNEY-CLIENT PRIVIEGE; ORDER

KENDALL J. NEWMAN, Magistrate Judge.

STIPULATION

Plaintiff United States of America, through its counsel, Assistant United States Attorney James R. Conolly, and defendant Edwin Forrest Ludwig, IV, through his counsel, Sandra Gillies, Esq., hereby stipulate as follows:

On April 22, 2015, Mr. Ludwig entered a change of plea in this matter that included admitting to an intended loss through his crimes of $400,000. Plea Agreement, ECF No. 130. In the United States Sentencing Guidelines' Tax Table at the time, this amount corresponded to a base offense level of 20. See USSG §2T4.1(G) (2015)

On July 8, 2015, the Court sentenced Mr. Ludwig to a total of 84 months incarceration, to be served consecutively to any prison sentence he was already serving at that time. ECF Nos. 145 & 146.

On November 1, 2015, Congress adopted a change to the Tax Table, USSG §2T4.1, which lowered by two points — to 18 — the base offense level corresponding to the amount of loss to which Mr. Ludwig had admitted in his plea agreement. See USSG §2T4.1(G) (2016).

On December 19, 2016, Mr. Ludwig filed an application for relief, pursuant to 28 U.S.C. § 2255, asking the Court to modify his sentence, based in part on a claim that his counsel, Christopher Cosca, had been ineffective during his change of plea and sentencing. ECF No. 206. In his petition, Mr. Ludwig alleged that Mr. Cosca had failed to investigate the possibility of the upcoming change to the Sentencing Guidelines, despite Mr. Ludwig's prompting him to do so on numerous occasions between April 7, 2014, and July 8, 2015. ECF No. 206. Mr. Ludwig alleged also that Mr. Cosca had been ineffective for failing to delay Court proceedings until Congress had adopted the change to the Sentencing Guidelines that could have reduced Mr. Ludwig's base offense level by two points, thereby resulting in a lower sentence. ECF No. 206. As a result, Mr. Ludwig contends that Mr. Cosca advised him improperly about his plea and sentence, and the possible benefits to delay, resulting in prejudice to Mr. Ludwig when he entered his guilty plea on July 8, 2015. ECF No. 206.

The United States opposed Mr. Ludwig's Section 2255 petition. ECF No. 243.

On August 30, 2018, the Court ordered that an evidentiary hearing for Mr. Ludwig's Section 2255 petition be held on October 17, 2018, at 9:00 a.m. ECF No. 329.

Both counsel for the United States and counsel for Mr. Ludwig anticipate that Mr. Cosca, and potentially others in his employ during the time of Mr. Ludwig's plea and sentencing, may be called during the evidentiary hearing to give evidence.

By alleging that his former counsel, Mr. Cosca, provided ineffective legal assistance by failing to make himself aware of the upcoming changes in the Sentencing Guidelines, by failing to heed Mr. Ludwig's requests that Mr. Cosca research the possibility of a potential change to the Sentencing Guidelines, and by failing to seek a delay to Mr. Ludwig's plea or sentencing, Mr. Ludwig has waived his attorney-client privilege with respect to communications between him and Mr. Cosca (and any other person employed by Mr. Cosca as part of the defense team) regarding issues bearing on timing of Mr. Ludwig's plea and sentencing, including communications regarding potential changes to the Sentencing Guidelines.

ORDER

The Court, having considered the parties' stipulation, and good cause appearing therefor,

IT IS HEREBY ORDERED THAT:

Defendant Edwin Forrest Ludwig, IV, has waived his attorney-client privilege with respect to communications between him and his previous attorney, Christopher Cosca, and any other person employed by Mr. Cosca as part of the defense team, concerning matters relating to the timing of Mr. Ludwig's change of plea and sentencing, including discussions related to potential changes to the Sentencing Guidelines. Mr. Cosca is hereby permitted to disclose freely to the parties and the Court any relevant information bearing on those issues, including by producing documents and by answering questions as a witness.