No. 16-20032-JAR. Click here for links to Judge Robinson`s order

Transcription

Pleadings in United States v. Black; 16-20032-JAR
8/5/2016
Doc. 85
8/10/2016 Doc. 102
8/15/2016 Doc. 105, 106
8/15/2016 Doc. 110
8/16/2016
8/23/2016
8/23/2016
8/23/2016
Doc. 113
Doc. 119
Doc. 120
Doc. 121
9/2/2016
Doc. 130
9/6/2016
9/6/2016
Doc. 132
Doc. 133
Amended Motion for Return of Video
Recordings
Memorandum & Order Impounding Videos &
Prohibiting Further Recordings
Motion & Memo to Impound Additional
Evidence—Phone Recordings
Response to Motion to Impound Video
Recordings
Order to Impound Phone Recordings
Memorandum of Law re Scope of Special Master
Memorandum of Law re Scope of Special Master
Response to Motion to Impound Phone
Recordings
Reply re Scope of Special Master and
Impounding Phone Recordings
Supplement to Reply re Phone Recordings
Supplemental Memorandum of Law re Special
Master and Phone Recordings and Proffers
FPD
Court
FPD
Gov’t
Court
FPD
Gov’t
Gov’t
FPD
FPD
Gov’t
Case 2:16-cr-20032-JAR Document 85 Filed 08/07/16 Page 1 of 14
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
Case No. 2:16-cr-20032-JAR
v.
LORENZO BLACK,
KARI CARTER,
ANTHON AIONO,
ALICIA TACKETT,
CATHERINE ROWLETTE,
DAVID BISHOP,
Defendants.
AMENDED MOTION FOR FED. R. CRIM. P. 41(g)
RETURN OF INFORMATION
On August 5, 2016, the Federal Public Defender learned that our
privileged communications with clients at CCA Leavenworth 1 have been
recorded by CCA staff and, at times, provided to the government upon
request. CJA counsel suffers identical violations of the attorney-client
privilege. What we understand is that, at least in certain visitation rooms,
CCA Leavenworth has recorded video of our legal visits with our clients. 2 We
CCA, or Corrections Corporation of America, houses some District of Kansas
federal pretrial detainees
2 See July, 21, 2016, transcript of status conference in above-captioned case,
Attachment A, pp. 12-13.
1
do not yet know whether or when audio recordings were made. 3 We
understand that all legal calls are also recorded, and the content of those
calls are provided to the USAO.
Introduction
This presents two pressing matters: first, that CCA is recording
confidential legal communication, and, second, that it provides that
confidential legal communication to the government, with no notice to the
defendant or counsel.
The Federal Public Defender does not represent any of the listed
defendants in this case; however, at least two of our clients were named in
the body of the complaint, Robert Buress and Jermaine Rayton. 4 We
currently represent about 75 clients who are housed at CCA pending trial or
sentencing.
The discovery described by the USAO in this case would include
recordings of Mr. Buress, Mr. Rayton, and any detainee’s legal visitation at
CCA during the relevant time period. 5 That discovery is, in turn, provided to
the defendants in this case. In other words, not only does the prosecution
Id. at pp. 10-11.
We currently represent Mr. Rayton; we withdrew from Mr. Buress’s case, but
because the violation occurred during our representation, we are requesting the
return of that communication, as well.
5 Id. at pp. 10-12.
3
4
2
have access to confidential FPD attorney-client meetings, but all defendants
in this and related cases will have those recordings.
Moreover, the USAO has announced its intention to file a superseding
indictment adding defendants in this case as well as new indictments: “[T]he
government believes that 95 inmates or more were involved in this
conspiracy and 60 individuals or more on the outside [were] working with
them.” 6 Those persons and their counsel will also have access to recorded
legal visitation and phone calls of all CCA detainees during that time period.
Legal Framework
1. Prosecutorial interference with the right to counsel violates Due Process
and the Sixth Amendment.
A defendant’s unfettered and private ability to consult with counsel is
essential to secure the fundamental right to due process and the protections
of the Sixth Amendment. 7 Conferences between counsel and the defendant at
CCA Leavenworth Detention Center are within the scope of the attorneyclient privilege, the oldest of the privileges for confidential communications
known to the common law. 8 The privacy of these communications is “crucial
Id. at p. 23.
7 Strickland v. Washington, 466 U.S. 668, 684–85, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984).
8 Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); see also In Re Grand Jury
Subpoenas, 454 F.3d 511, 519 (6th Cir. 2006) (attorney-client privilege “dates back
to the Tudor dynasty at least”).
6
3
to this relationship.” 9 The attorney-client privilege extends to “[c]onfidential
disclosures by a client to an attorney made in order to obtain legal
assistance.” 10 It also extends to “at least those attorney to client
communications which would have a tendency to reveal the confidences of the
client.” 11
Government interference with that right violates both constitutional
guarantees, and constitutes structural error. 12
[A] prosecutor's intentional intrusion into the attorney-client
relationship constitutes a direct interference with the Sixth
Amendment rights of a defendant, and because a fair adversary
proceeding is a fundamental right secured by the Sixth and
Fourteenth Amendments, we believe that absent a countervailing
state interest, such an intrusion must constitute a per se
violation of the Sixth Amendment. In other words, we hold that
when the state becomes privy to confidential communications
because of its purposeful intrusion into the attorney-client
relationship and lacks a legitimate justification for doing so, a
prejudicial effect on the reliability of the trial process must be
presumed. In adopting this rule, we conclude that no other
standard can adequately deter this sort of misconduct. We also
Al Odah v. United States, 346 F.Supp.2d 1, 10 (D.D.C. 2004).
10 Fisher v. United States, 425 U.S. 391, 403 (1976).
11In re Grand Jury Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010) (quoting
Kenneth S. Brown, McCormick on Evidence § 89 (6th ed. 2006)).
12 Luis v. United States, 136 S.C.t 1083, 1089 (2016) (noting the “necessarily close
working relationship between lawyer and client, the need for confidence, and the
critical importance of trust . . .”; and that wrongful deprivation of counsel is
structural error).
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4
note that prejudice in these circumstances is so likely that caseby-case inquiry into prejudice is not worth the cost. 13
This rule recognizes that the accused “does not enjoy the effective aid of
counsel if he is denied the right of private consultation [.]” 14 If discovery of
materials provided by an attorney to a client were permitted, “[t]he effect on
the legal profession would be demoralizing. And the interests of the clients
and the cause of justice would be poorly served.” 15
2. Videotaping client meetings is prosecutorial interference with the right
to counsel.
The Kansas Supreme Court addressed a milder form of our problem in
Case v. Andrews, 16 which held that,
the Lyon County jail policy of visually monitoring all
consultations between attorneys and clients is an unreasonable
interference with the right to confidential attorney-client
communications. The confidentiality of communications between
Schillinger v. Haworth, 70 F.3d 1132, 1142 (10th Cir. 1995).
14 Mastrian v. McManus, 554 F.2d 813, 820–21 (8th Cir. 1977), cert. denied, 433
U.S. 913 (1977) (It is clear “that an accused does not enjoy the effective aid of
counsel if he is denied the right of private consultation[.]”). See also, Coplon v.
United States, 191 F.2d 749, 757 (1951); Geders v. United States, 425 U.S. 80
(1976); Hoffa v. United States, 385 U.S. 293 (1966); Massiah v. United States, 377
U.S. 201 (1964); United States v. Rosner, 485 F.2d 1213 (2nd Cir. 1973), cert.
denied, 417 U.S. 950 (1974); United States v. Brown, 484 F.2d 418 (5th Cir. 1973),
cert. denied, 415 U.S. 960 (1974); Caldwell v. United States, 205 F.2d 879, 92
U.S.App.D.C. 355, (D.C. Cir. 1953).
15 Upjohn, 449 U.S. at 398.
16 226 Kan. 786 (Kan. 1979).
13
5
an attorney and his client who is charged with crime should be
carefully protected by the courts. 17
Because “absent a showing of any risk to the order or security of the jail, the
practice of visually monitoring an attorney-client conference when privacy is
requested, is unreasonable. Such unreasonable interference violates an
accused's Sixth Amendment right to effective representation by counsel.” 18
Our situation, as we apprehend it, is a far more significant interference
with the right to counsel than the circumstances considered in Case. The
17
18
Id. at 790.
Id. at 791. See also, State v. Walker, 804 N.W.2d 284, 295 (Iowa 2011) (“in the
absence of any individualized showing of a safety or security risk video
surveillance violates an arrestee's right to ‘see and consult confidentially’ with his
attorney ‘alone and in private.’”); People v. Dehmer, 931 P.2d 460, 463 (Colo.App.
1996); State v. Sherwood, 174 Vt. 27, 800 A.2d 463, 466 (2002) (“The tape itself is
evidence that defendant's conversation with counsel was not, in fact, private.”);
Moore v. Janing, 427 F. Supp. 567, 576 (D. Neb. 1976) (“there is no physical
facility specifically set aside for this purpose in which the pretrial detainees have
a right to consult privately with attorneys and witnesses. Such conditions impede
the detainees' ability to prepare for trial, jeopardize the confidentiality of their
attorney-client communications and invade their right to privacy.”); compare 66
Fed. Reg. 55065(d) (“In any case where the Attorney General specifically so orders,
based on information from the head of a federal law enforcement or intelligence
agency that reasonable suspicion exists to believe that a particular inmate may
use communications with attorneys or their agents to further or facilitate acts of
terrorism, the Director, Bureau of Prisons, shall, in addition to the special
administrative measures imposed under paragraph (a) of this section, provide
appropriate procedures for the monitoring or review of communications between
that inmate and attorneys or attorneys' agents who are traditionally covered by
the attorney-client privilege, for the purpose of deterring future acts that could
result in death or serious bodily injury to persons, or substantial damage to
property that would entail the risk of death or serious bodily injury to persons.”).
6
meetings between the Federal Defender or CJA counsel and our respective
clients are not only visually monitored, but recorded. Those recordings are
then, at least in some cases, provided to the United States Attorney’s Office.
The documents we review with our clients, how our clients react to those
documents, and the notes are taken by client and counsel are open to
government inspection and review. Recorded phone calls present the same
problems.
This arrangement chills our client’s exercise of their right to counsel, as
they do, and should, “be hesitant to disclose names and information relevant
to the attorney's investigation and necessary to the advice sought.” 19 Such
conditions impede our clients’ “ability to prepare for trial, jeopardize the
confidentiality of their attorney-client communications and invade their right
to privacy.” 20 Allowing the government to “monitor these meetings and
conduct a classification review of meeting notes flies in the face of the
Johnson-El v. Schoemehl, 878 F. 2d 1043, 1052-53 (8th Cir. 1989).
20 Moore v. Janing, 427 F. Supp. 567, 576 (D. Neb. 1976), superseded on other
grounds by Bell v. Wolfish, 441 U.S. 520 (1979), see also, United States v.
DiDomenico, 78 F. 3d 294, 299 (7th Cir. 2004) (“knowledge that a permanent
record was being made of the conversations . . . would make the defendants
reluctant to make candid disclosures.”).
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foundational principle of the attorney-client privilege.” 21 Such government
intrusion “would lay waste to the value of the attorney-client privilege.” 22
3. Inaction in the face of the government’s surveillance would waive the
attorney-client privilege.
The attorney-client privilege is “virtually inviolable” unless waived. 23
Waiver may be express or implied. 24 An “[i]mplied waiver occurs when a
party claiming the privilege has voluntarily disclosed confidential
information on a given subject matter to a party not covered by the
privilege.” 25
The Federal Defender believes that visiting clients at CCA, while
subject to video recording, threatens to waive the attorney-client privilege.
The “presence of the recording device [is] the functional equivalent of the
presence of a third party,” such that the attorney-client privilege is
destroyed. 26 Once the invasion is known to counsel, she has “a duty to seek to
Al Odah, 346 F.Supp. 2d at 11.
22 Id. citing Weatherford v. Bursey, 429 U.S. 545, 554 (1977).
23 United States v. Ary, 2005 WL 2367541 (D. Kan. 2005).
24 Id.
25Id. See also, Hanson v. U.S. Agency for International Development, 372 F.3d 286,
293–94 (4th Cir.2004).
26 United States v. Hatcher, 323 F.3d 666, 674 (8th Cir.2003). See also, United
States v. Walker, 2011 WL 2728460 at 1 (M.D. Ala. 2011); United States v.
Mitchell, 2013 WL 3808152 (M.D. Fl. 2013) (“Both individuals having heard the
automated message, and Newby's action of affirmatively pressing a phone key to
accept the calls, obviates any reasonable expectation of privacy between the
attorney and client in these two calls because Newby and Mitchell each knew the
21
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end the surveillance, discover the true extent of it, and find a remedy for
what has already happened. One cannot simply rely upon post hoc use of the
exclusionary rule because the harm to the ability of the criminal defense
lawyer to adequately defend has already occurred and continues, and it
substantially risks infecting the fairness of the trial.” 27 That is one reason
that 18 USC § 3142 requires a person detained awaiting federal trial be
“afforded reasonable opportunity for private consultation with counsel.”
We assert the privilege now, because delay may cut against a later
invocation. 28
4. Rule 41(g) is an appropriate, albeit partial, remedy.
Rule 41(g) provides an immediate remedy for this violation. 29 The rule
provides a mechanism for a “person aggrieved by an unlawful search and
seizure of property or by the deprivation of property” to move for the
calls were being recorded. Furthermore, Mitchell and Newby implicitly consented
to the recording of the calls by continuing the conversations despite the
warning.”); Modelle v. Fauro, 2010 WL 624023 (N.D. N.Y. 2010).
27 NACDL Ethics Opinion, 02-01, supra, 5 and 15.
Ary at 7 (“While the court may have been willing to accept a claim of privilege
asserted during his review of the contents of the black plastic box, now it appears
that counsel has delayed too long.”); United States v. de la Jara, 973 F.2d 746, 750
(9th Cir.1992) (noting that the privilege will be waived “if the privilege holder fails
to pursue all reasonable means of preserving the confidentiality of the privileged
matter.”).
29 See Rule 41(g).
28
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property's return. 30 Under this Rule, “[p]roperty” includes not only “tangible
objects” such as “documents,” but also “information.” 31 The recordings at
issue here are “property.” The Rule’s distinction between those who are
aggrieved by an illegal “search and seizure” and those aggrieved by the
“deprivation of property” is meant to extend the Rule’s protection to not only
those harmed by an initially unlawful seizure, but also to those harmed by
the retention of property whose seizure may have been legal: 32
. . . Rule 41(e) 33 provides that an aggrieved person may seek
return of property that has been unlawfully seized, and a person
whose property has been lawfully seized may seek return of
property when aggrieved by the government’s continued
possession of it. 34
Id.
Rule 41(a)(2)(A).
32 “Privileges for confidential communications are more absolute, narrower in scope,
and broader in application than the Fourth Amendment exclusionary rule. As
previously stated, the exclusionary rule is qualified in the sense that a
government showing of probable cause can justify the issuance of a warrant
authorizing a search or seizure. Under the dominant Wigmorean paradigm,
privileges for confidential communications are absolute.” Edward Imwinkelried,
The Dangerous Trend Blurring the Distinction Between a Reasonable Expectation
of Confidentiality in Privilege Law and a Reasonable Expectation of Privacy in
Fourth Amendment Jurisprudence, 57 Loy.L.Rev.1, 7 (Spr. 2011).
33 The 2002 amendments moved subsection (e) to (g) and made some “minor stylistic
changes.” United States v. Albinson, 356 F.3d 278, 279, n. 1 (3rd Cir. 2004).
34 Rule 41, Advisory Comm. Note to the 1989 Amendments.
30
31
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Remedies
Pursuant to Rule 41(g), the defense asks that all recorded confidential
legal communication be returned to counsel, and through counsel, to the
defendant. The scheduled evidentiary should provide the factual basis for the
Court to grant this request. For that hearing, we ask the Court to Order:
1. That CCA Leavenworth disclose its policy regarding surveillance
and documentation of legal communication;
2. That CCA Leavenworth disclose how recorded legal communication
is provided to the USAO or any law enforcement agency;
3. That the USAO disclose its policy and practice of gathering and
reviewing privileged and confidential legal communication from
CCA or other pretrial holding facilities;
4. That the USAO identify the cases in which it has gathered or
reviewed confidential and privileged legal communication, and
whether that has been disseminated;
5. That the parties be allowed to address other evidentiary matters as
they arise in this quickly developing investigation.
Once the evidence is presented and considered, we reserve the right to
request any of the sanctions recognized by the Tenth Circuit in Schillinger v.
Haworth. 35 Counsel advises the Court that the parties are working together
35
70 F.3d 1132, 1142-43 (10th Cir. 1995) (Identifying as appropriate remedies the
recusal of government counsel, exclusion of evidence, retrial, or dismissal.).
11
to reach stipulations and streamline evidence for an orderly and efficient
hearing.
Conclusion
The hearing is scheduled for Tuesday, August 9, 2016, at 1:30 p.m. Until
then, we ask the Court to impound from the USAO any CCA recordings that
include legal communication and any information derived from the
government possession of that legal communication, such as law enforcement
reports.
After the hearing, we will ask the Court to appoint an outside entity to
1) investigate, in consultation with the defense and USAO, the conduct of
CCA and the USAO in recording and reviewing legal communication, and
2) recommend appropriate remedies to the Court.
Respectfully submitted,
s/Melody Brannon
MELODY BRANNON #17612
Federal Public Defender for the
District of Kansas
117 SW 6th Avenue, Suite 200
Topeka, Kansas 66603-3840
Phone: 785/232-9828
Fax: 785/232-9886
E-mail Address: melody_brannon@fd.org
12
CERTIFICATE OF SERVICE
I hereby certify that on August 7, 2016, I electronically filed the foregoing
with the clerk of the court by using the CM/ECF system which will send a
notice of electronic filing to the following:
Donald Christopher Oakley
Assistant United States Attorney
Office of the United States Attorney – Kansas City
chris.oakley@usdoj.gov
Erin S. Tomasic
erin.tomasic@usdoj.gov
Debra L. Barnett
Criminal Chief
Office of the United States Attorney – Wichita
debra.barnett@usdoj.gov
John Jenab
Jenab Law Firm, PA
john.jenab@gmail.com
David J. Guastello
The Guastello Law Firm, LLC
david@guastellolaw.com
Jason P. Hoffman
Hoffman & Hoffman
jphoffman@sbcglobal.net
Kathleen A. Ambrosio
Ambrosio & Ambrosio Chtd.
kaambrosio@yahoo.com
13
Michael M. Jackson
jacksonmm@aol.com
Cynthia M. Dodge
Cynthia M. Dodge, LLC
cindy@cdodgelaw.com
Shazzie Naseem
Berkowitz Oliver LLP - KCMO
snaseem@berkowitzoliver.com
s/ Melody Brannon
Melody Brannon
14
Plaintiff,
Case No. 16-20032-JAR
v.
LORENZO BLACK,
KARL CARTER,
ANTHON AIONO,
ALICIA TACKETT,
CATHERINE ROWLETTE, and
DAVID BISHOP
Defendants.
MEMORANDUM AND ORDER
This matter is before the Court on Movant Federal Public Defender’s (“FPD”) Amended
Motion for Fed. R. Crim. P. 41(g) Return of Information (Doc. 82). Defendants Catherine
Rowlette, Lorenzo Black, David Bishop, and Karl Carter join in the FPD’s motion (Docs. 89, 96,
& 97). Interested Parties Richard Dertinger and David Lougee also join in the motion (Docs. 92
& 94). The Court held an emergency hearing on August 9, 2016, and heard evidence and oral
argument from the parties regarding the FPD’s motion. The Court issues this Order to
supplement its previous oral rulings.
At the hearing, the Court heard evidence that the United States Attorney’s Office for the
District of Kansas came into possession of video recordings depicting privileged attorney-client
communications at the Corrections Corporation of America Leavenworth Detention Center
(“CCA Leavenworth”).1 The recordings do not capture audio, but allow a viewer to observe
1
See Case v. Andrews, 603 P.2d 623, 626–27 (Kan. 1979)(holding that county jail interfered with attorneyclient privilege by video monitoring meetings between inmates and their attorneys in jailhouse).
1
non-verbal communications in six of CCA Leavenworth’s eight attorney-client conference rooms
with the assistance of pan and zoom functions. These recordings are contained on at least two of
six DVR hard drives that CCA Leavenworth produced in response to a Grand Jury subpoena.
The subpoena directed CCA Leavenworth to produce the following:
All video footage or still images currently retained by the Corrections Corporation
of America (CCA) depicting any internal or external surveillance video or still
image taken between July 2014 and April 12, 2016 at the CCA facility in
Leavenworth, Kansas.
Consistent with its oral ruling at the previous hearing, the Court orders the Government to submit
to the custody of the Court all originals and copies of DVR hard drives that it received pursuant
to the subpoena described above. This order applies to all such hard drives that the Government
is aware are in the possession of the United States Attorney’s Office or in the possession of law
enforcement agents.
The Court also heard evidence that CCA Leavenworth records outgoing phone calls
placed by inmates to their attorneys unless the inmate informs CCA Leavenworth that they are
placing a call to counsel.
The Court also heard evidence that other detention facilities in Kansas and Missouri that
house federal inmates charged in this District record phone, video and/or face-to-face
communications between attorneys and their clients. Accordingly, the Court finds reason to
order all detention facilities in Kansas and Missouri, as well as CCA, that house detainees
charged in this District, to immediately cease and desist all: (1) audio-visual recording of
attorney-client communications in the detention facility; (2) audio recording of attorney-client
phone calls; and (3) audio-visual recording of attorney-client videoconference calls. The Court
further finds reason to order the detention facilities described above to submit written
2
confirmation to the United States Marshal (“USM”) for the District of Kansas that the facilities
are not recording any type of attorney-client communications.
The Court also finds reason to direct the USM give the USM for the Western District of
Missouri notice of this Court’s Order, as it is likely that detainees from that court are housed in
some or all of the same facilities that detainees from this Court are housed.
The Court reserves the right to modify this Order at a later date in the event it is satisfied
that the facilities described above have systems that are capable of appropriately monitoring (for
safety reasons) but not audio or video recording attorney-client communications.
The parties jointly request the appointment of a special master to segregate all recordings
of attorney-client communications from the remainder of the recordings submitted pursuant to
the Grand Jury subpoena. The record remains open as to the appointment of a special master.
The Court sets a hearing for Tuesday, August 16, 2016 at 1:30 p.m. to determine the appointment
and scope of work of a special master in this case.
IT IS THEREFORE ORDERED BY THE COURT that the Government shall submit
to the Court all originals and copies of DVR hard drives containing recordings of attorney-client
communications that the Government is aware are in the possession of the United States
Attorney’s Office for the District of Kansas or in the possession of law enforcement agents.
IT IS ORDERED BY THE COURT that all detention facilities in Kansas and Missouri,
as well as CCA, that house detainees charged in the United States District Court for the District
of Kansas immediately CEASE AND DESIST: (1) audio-visual recording of attorney-client
communications in the detention facility; (2) audio recording of attorney-client phone calls; and
(3) audio-visual recording of attorney-client videoconference calls.
3
IT IS FURTHER ORDERED BY THE COURT that CCA, and the detention facilities
in Kansas or Missouri that house detainees charged in the United States District Court for the
District of Kansas shall FORTHWITH submit written confirmation to the United States Marshal
for the District of Kansas that the facilities are not audio or video recording any type of attorneyclient communications.
FURTHERMORE, the United States Marshal for the District of Kansas is directed to
give the USM for the Western District of Missouri notice of this Court’s Order, as it is likely that
detainees from that court are housed in some or all of the same facilities that detainees from this
Court are housed.
IT IS FURTHER ORDERED BY THE COURT that a hearing is set for Tuesday,
August 16, 2016 at 1:30 p.m. to determine the appointment and scope of work of a special master
in this case. The parties’ Joint Motion to Appoint Special Master remains under advisement.
IT IS SO ORDERED.
Dated: August 10, 2016
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
4
Plaintiff,
v.
LORENZO BLACK,
KARI CARTER,
ANTHON AIONO,
ALICIA TACKETT,
CATHERINE ROWLETTE,
DAVID BISHOP,
Defendants.
MOTION FOR COURT TO IMPOUND ADDITIONAL
GOVERNMENT EVIDENCE
The defense asks the Court to order the government to produce all
attorney-client phone recordings seized from CCA as a part of this
investigation, along with an accounting of its dissemination to defense
counsel and to anyone else. CCA recorded attorney-client phone calls, gave
those calls to the USAO, and the USAO has distributed the protected
communication to other defendants. The recording, seizure, and
dissemination of those confidential attorney-client phone calls violates
constitutional, legal, and ethical rules just as did CCA’s recording and
production of confidential attorney-client visits. And, likewise, the issues here
extend beyond privilege, given the magnitude of the USAO search and
seizure.
Since the August 9, 2016, hearing, the defense has learned that
recorded attorney-client phone calls are part of the government’s discovery in
this case and have already been disseminated to other defendants. The
government had informed Black counsel that the USAO targeted the
recorded phone calls of some 50 CCA inmates, but did not offer that these
include attorney-client phone calls. 1 Counsel in U.S. v. Black have now
discovered that some phone calls date back to 2011. These calls include
defendants and counsel who are unrelated to the investigation or charges in
U.S. v. Black. As far as Black defense counsel can ascertain, all but one of the
clients whose attorney-client calls were recorded are not defendants in this
case. 2 The phone calls far exceed the conspiracy timeline or participants
alleged in the U.S. v. Black complaint, but the full scope of the intrusion is
not yet known. Should the government oppose the Court taking possession of
the phone calls, the defense is prepared to present evidence in support of the
request.
August 9 Rule 41(g) Motion Hrg., Exh. 446.
2 And, the one client who is charged in this case, Karl Carter, was calling a different
attorney, in an unrelated case.
1
2
The defense asks the Court to hear this motion at the hearing
scheduled for August 16, 2016, at 1:30.
s/Melody Brannon
District of Kansas
Phone: 785/232-9828
Fax: 785/232-9886
Erin S. Tomasic
Debra L. Barnett
Criminal Chief
3
Duston Slinkard
Criminal Coordinator
Office of the United States Attorney – Topeka
Duston.Slinkard@usdoj.gov
John Jenab
Jenab Law Firm, PA
David J. Guastello
Jason P. Hoffman
Hoffman & Hoffman
Michael M. Jackson
jacksonmm@aol.com
Cynthia M. Dodge
cindy@cdodgelaw.com
Shazzie Naseem
Catherine A. Zigtema
Law Office of Kate Zigtema LC
kate@zigtemalaw.com
Jonathan L. Laurans
jlaurans@msn.com
4
Jacquelyn E. Rokusek
Rokusek Law, LLC
rokuseklawoffice@yahoo.com
s/ Melody Brannon
Melody Brannon
5
Plaintiff,
v.
LORENZO BLACK,
KARI CARTER,
ANTHON AIONO,
ALICIA TACKETT,
CATHERINE ROWLETTE,
DAVID BISHOP,
Defendants.
DEFENSE MEMORANDUM IN SUPPORT OF
MOTION FOR SPECIAL MASTER
Before the Court is a joint request for appointment of a Special Master.
The defense proposes that the scope of a Special Master’s inquiry should
extend beyond cataloging the video recordings of attorney-client visitation at
CCA. The USAO’s conduct in this case raises questions about its conduct in
other cases, as well as its policies, practices, and access to other forms of
protected communication. A focused, efficient, and authoritative inquiry
would be valuable to the Courts and the litigants.
1
This Court has authority to appoint a Special Master both by Fed. R.
Civ. P. 53, 1 and by its inherent power to manage litigation. 2 The defense has
1
While “the civil rules are not expressly applicable to criminal cases, the courts
have used the principles somewhat interchangeably.” United States v. Loera, __
F.Supp.3d __, 2016 WL 1730357 at 18 (D. N.M. 2016); see, e.g., United States v.
Christy, 739 F.3d 534, 539–40 (10th Cir. 2014); United States v. Huff, 782 F.3d
1221, 1223–24 (10th Cir.2015); but see United States v. Nacchio, 555 F.3d 1234,
1245 (10th Cir. 2009).
2
In re Peterson, 253 U.S. 300, 312-13 (1920) (“Courts have (at least in the absence of
legislation to the contrary) inherent power to provide themselves with appropriate
instruments required for the performance of their duties. This power includes
authority to appoint persons unconnected with the court to aid judges in the
performance of specific judicial duties, as they may arise in the progress of a
cause. From the commencement of our government it has been exercised by the
federal courts, when sitting in equity, by appointing, either with or without the
consent of the parties, special masters, auditors, examiners, and
commissioners.”) (emphasis added); Schwimmer v. United States, 232 F.2d 855,
865 (8th Cir. 1956) (The “Court may, in its discretion, make appointment of a
Master to assist in any of the incidents of a proceeding before it, whether civil or
criminal, so long as there is no infringement upon the right of trial by jury or any
prejudice to other substantive right.”); Ruiz v. Estelle, 679 F.2d 1115, 116 n. 240
(5th Cir. 1982), amended in part, vacated in part, 688 F.2d 266 (5th Cir. 1982)
(same); Reed v. Cleveland Bd. of Educ., 607 F.2d 737, 746 (6th Cir. 1979) (noting
that the authority to appoint “expert advisors or consultants” derives from either
Rule 53 or the court’s inherent power); Irving R. Kaufman, Masters in the Federal
Courts: Rule 53, 58 Colum. L. Rev. 452, 462 (1958) (“Over and above the authority
contained in Rule 53 to direct a reference, there has always existed in the federal
courts an inherent authority to appoint masters as a natural concomitant of
their judicial power.”)
2
attached a proposed Order 3 that outlines the suggested scope of a Special
Master inquiry.
When the Court finds a Sixth Amendment violation, it must “identify
and then neutralize the taint by tailoring relief appropriate in the
circumstances to assure the defendant the effective assistance of counsel and
a fair trial.” 4 Available remedies include suppression of evidence, 5 recusal of
prosecutors involved in the violation, 6 and dismissal of the indictment. 7
Given the volume of material and the importance of the issues, appointment
3
The proposed Order is fashioned after the requirements set forth in Fed. R. Civ. P.
53, and by the example provided by the Federal Judicial Center, Appointing
Special Masters and Other Judicial Adjuncts (2d Ed. 2009).
4
United States v. Morrison, 449 U.S. 361, 365 (1980).
5
Schillinger, at 1143 (“Morrison makes clear that evidence obtained through an
intentional and improper intrusion into a defendant’s relationship with his
attorney, as well as any ‘fruits of [the prosecution's] transgression,’ . . . must be
suppressed in proceedings against him.”).
6
Id; United States v. Horn, 811 F. Supp. 739, 752 (D.N.H. 1992) (removing the lead
prosecutor from the case and ordering her “not to discuss the documents with any
prosecutor or witness in this case and not to participate further in any way,
directly or indirectly, in the trial preparation or trial of this case”), rev’d in part on
other grounds, 29 F.3d 754 (1st Cir. 1994).
7
Schillinger v. Haworth, 70 F.3d 1132, 1143 (10th Cir. 1995).
3
of a Special Master is essential to factual exposition and the determination of
an appropriate remedy. 8
The record justifies a Special Master. CCA has routinely and
surreptitiously recorded video of meetings between counsel and clients that
were supposed to be confidential. Attorney-client phone calls were also
recorded. Those recordings were then provided to the District of Kansas U.S.
Attorney’s Office, without notice to any of the defendants. Only when the
USAO chose to reveal the recordings did the defense learn of CCA’s recording
and dissemination practice. And only when the USAO chose to disclose the
recordings in discovery and to counsel in an effort to remove her from a case
did the defense learn of the USAO’s intrusion into attorney-client
communications, communications that are protected constitutionally, legally,
and ethically. Now, the extent of the phone call recording and dissemination
is a pressing, and not yet fully explored, breach into confidential legal
communications.
8
Id. at 1143 (“Given the inadequacy of the state court factfinding procedures in this
case, we have serious concerns about the extent of the prosecutor’s intrusion. On
the record before us, we cannot determine whether the prosecutor obtained and
used other information relevant to Haworth’s criminal proceedings that may
prejudice Haworth upon retrial of the matter.”).
4
Litigation of confidentiality issues is inevitable across the district.
These issues can reasonably be expected to appear in motions for discovery,
motions to continue, motions for recusal, motions to dismiss, motions to
suppress, motions to set aside pleas, motions for sentencing variances, posttrial motions, and post-conviction motions (appeal waivers do not apply to
claims of prosecutorial misconduct). A Special Master could coordinate factfinding and make recommendations that would inform the possible
disposition of such litigation. A Special Master inquiry, if adequately defined
and resourced, could lessen time-consuming litigation and provide confidence
in the outcome. A Special Master would be more effective, efficient, and
economical than piecemeal investigation and litigation, so long as the results
were accessible to the litigants.
Furthermore, the defense is limited in its ability to fully investigate the
extent of the government’s conduct, as shown by the evidence presented at
the August 9, 2016, hearing. A government investigation of its own
misconduct is unsatisfactory for a multitude of reasons. 9 But a Court-directed
inquiry through a Special Master would solve the defense limitations and
avoid concerns about an USAO internal investigation.
9
See United States v. Bowen, 799 F.3d 336, 351-355 (5th Cir. 2015) (criticizing DOJ
investigation into its own attorney misconduct as inadequate and procedurally
deficient).
5
Conclusion
In the short time since our last hearing, we have developed additional
evidence that the attorney-client privilege had been breached by the
government. We are prepared to present that evidence at the hearing. But
instead of the presentation of additional evidence, and case-by-case litigation,
we ask this Court to appoint a Special Master. In this exceptional case, this is
an appropriate measure.
s/Melody Brannon
District of Kansas
Phone: 785/232-9828
Fax: 785/232-9886
6
Erin S. Tomasic
Debra L. Barnett
Criminal Chief
Duston Slinkard
Criminal Coordinator
Office of the United States Attorney – Topeka
Duston.Slinkard@usdoj.gov
John Jenab
Jenab Law Firm, PA
David J. Guastello
Jason P. Hoffman
Hoffman & Hoffman
7
Michael M. Jackson
jacksonmm@aol.com
Cynthia M. Dodge
cindy@cdodgelaw.com
Shazzie Naseem
Catherine A. Zigtema
Law Office of Kate Zigtema LC
kate@zigtemalaw.com
Jonathan L. Laurans
jlaurans@msn.com
Rokusek Law, LLC
s/ Melody Brannon
Melody Brannon
8
Case 2:16-cr-20032-JAR Document 106-1 Filed 08/15/16 Page 1 of 6
Plaintiff,
v.
LORENZO BLACK,
KARI CARTER,
ANTHON AIONO,
ALICIA TACKETT,
CATHERINE ROWLETTE,
DAVID BISHOP,
Defendants.
ORDER APPOINTING SPECIAL MASTER
The joint request for an appointment of a Special Master is submitted
to the Court upon the motion of the Federal Public Defender. Counsel
appearing for the defendants are John Jenab, David Guastello, Jason
Hoffman, Kathleen Ambrosio, Michael Jackson, and Cynthia Dodge. Melody
Brannon and Kirk Redmond of the Federal Public Defender’s Office appear as
Movants. Counsel appearing for the Government are Debra Barnett, Duston
Slinkard, and Emily Metzger.
The Court has given the parties notice and an opportunity to be heard.
1Exercising
its inherent authority to manage litigation, and its authority
1
See Fed. R. Civ. P. 53(b)(1). Case 2:16-cr-20032-JAR Document 106-1 Filed 08/15/16 Page 2 of 6
under Fed. R. Civ. P. 53, IT IS HEREBY ORDERED that [Special
Master’s Name] of [Address] is appointed Special Master.
Scope of Special Master Inquiry
The Special Master shall inquire determine:
1.
The past and current policy and practice of all holding facilities
under contract with the United States Marshal Service to house
pretrial detainees in the District of Kansas with regard to:
1.1
Video recordings of attorney-client communication; 2
1.2.
Audio recordings of attorney-client communication;
1.3
Any other means of surveilling attorney-client
communication;
1.4
2.
Recording or monitoring legal mail.
When and under what circumstances each facility makes or has
made available to any third party, including law enforcement officials
and the United States Attorney’s Office, the follow materials, without
regard to any claim of waiver:
2.1
Video recordings of attorney-client communication;
2.2
Audio recordings of attorney-client communication;
2.3
Legal mail.
2
For purposes of this Order, “counsel,” “attorney-client,” and “legal communication”
will include other members of the defense team who fall within the scope of
attorney-client confidentiality and privilege, including investigators, interpreters,
experts, and other designated service providers.
2 Case 2:16-cr-20032-JAR Document 106-1 Filed 08/15/16 Page 3 of 6
3.
The instances in which the Kansas United States Attorney’s
Office or its agents has sought production, formally or informally, of
any attorney-client communications for use in an investigation or
prosecution, and, in those instances,
3.1
whether counsel or the defendant were notified;
3.2
whether the materials were used in the investigation or
prosecution;
3.3
whether the materials were made available or
disseminated to others; and
3.4
whether those materials are still in the possession of the
Kansas USAO.
4.
The instances in which the United States Attorney’s Office has
inadvertently come into possession of any attorney-client
communications from any Kansas holding facility during an
investigation or prosecution, and,
4.1
whether counsel or the defendant were notified;
4.2
whether the materials were used in the investigation or
prosecution;
4.3
whether those materials were disseminated or made
available to others;
4.4
whether those materials are still in the possession of the
USAO; and
4.5
how the USAO or its agents came to be in possession of the
attorney-client communications.
5.
With regard to United States v. Black, 16-cr-20032-JAR, and
related cases,
5.1
the scope of the recordings;
5.2
how the video recordings of attorney-client meetings or
phone calls were identified;
5.3
whether there was any audio of the attorney-client
meetings;
5.4
who had knowledge of or access to the recordings, including
any USAO-designated internal privilege review team, and
whether there was any derivative action, prosecution, or
investigation as a result of that knowledge or access;
5.5
who actually viewed or heard any of the recordings and
when, and whether there was any derivative action or
investigation as a result of that viewing.
6.
Determine, to the extent possible, which defendants and which
attorneys are on the video recordings or on the phone recordings.
7.
Determine whether and when the U.S. Marshal has obtained
confidential recordings of attorney-client communications.
8.
Any other inquiry the Special Master, in consultation with the
Court, deems reasonable and necessary.
Authority of the Special Master
[Special Master’s Name] shall have the sole discretion to determine the
appropriate procedures for resolution of all assigned matters and shall have
the authority to take all appropriate measures to perform the assigned
duties. The Special Master may by Order impose upon a party any sanction
other than contempt and may recommend a contempt sanction against a
party and contempt or any other sanction against a non-party.
To discharge the above duties, the Special Master shall be allowed to
engage in ex parte conversations with counsel for the parties in order to
permit full consideration of the issues. Any ex parte conversation will be
conducted on the record in order to permit appropriate review by the
undersigned Court or the appellate courts.
The Special Master shall be paid $ ____ per hour for work done
pursuant to this Order, and shall be reimbursed for all reasonable expenses
incurred.
The Special Master is authorized to hire __________ to assist in
completion of the matters referred to the Special Master by this Order.
The Special Master is directed to proceed with all reasonable diligence
to complete the tasks assigned by this Order, and shall submit to the Court
written findings and recommendations.
Access to the Special Master Findings
The parties shall file with the Clerk all papers for consideration by the
Special Master. The Special Master shall also file with the Clerk all reports
or other communications with the undersigned Court.3 At the conclusion of
the Special Master’s inquiry, the Court shall, at its discretion, make available
to the parties the findings and recommendations of the Special Master.
Any party seeking review of any ruling of the Special Master shall
comply with the requirements of Fed. R. Civ. P. 53(f).
IT IS SO ORDERED.
Date:
______________________________
The Honorable Julie A. Robinson
United States District Court Judge
3
Fed. R. Civ. P. 53(b)(2)(C). 6 Case 2:16-cr-20032-JAR Document 110 Filed 08/15/16 Page 1 of 16
UNITED STATES DISTRICT COURT
District of Kansas
(Kansas City Docket)
Plaintiff,
v.
Case No. 16-20032-01-06-JAR
LORENZO BLACK,
KARL CARTER,
ANTHON AIONO,
ALICIA TACKET,
CATHERINE ROWLETTE, and
DAVID BISHOP,
Defendants.
UNITED STATES’ FIRST RESPONSE
TO MOTION AND AMENDED MOTION FOR FED.R.CRIM.P.
41(g) RETURN OF INFORMATION (Doc. 82 and 85) AND
NUMEROUS MOTIONS TO JOIN (Docs. 89, 92, 94, 96, 97)
Comes now, the United States of America, by and through its attorney,
Debra L. Barnett, Assistant United States Attorney, for the District of Kansas,
and advises the Court as follows:
I.
Procedural History
A Complaint was filed in this case against defendants Lorenzo Black,
Karl Carter, Stephen Rowlette, Anthon Aiono, Alicia Tackett, Catherine
Rowlette and David Bishop on April 9, 2016. (Doc. 1.) On May 4, 2016, an
Indictment was returned against defendants Black, Carter, Aiono, Tackett,
Catherine Rowlette and Bishop. (Doc. 52.)
In the Complaint’s supporting Affidavit, Richard Dertinger, Robert
Burress and Jermaine Rayton were identified as being involved in criminal
activity
at
Corrections
Leavenworth, Kansas.
Corporation
of
America’s
(Doc. 1, at 6-8, and 22.)
(CCA)
facility
in
On August 5, 2016, the
Federal Public Defender (FPD) filed a Motion for Fed.R.Crim.P. 41(g) Return
of Information as to Robert Burress and Jermaine Rayton, two FPD clients
held at CCA. (Doc. 82.) This motion was amended two days later. (Doc. 85.)
Both motions were joined by the defendants indicted herein, as well as Richard
Dertinger. (Docs. 89, 92, 94, 96, 97.)
A.
Factual Background
On April 8, 2016, law enforcement agents executed a search warrant
inside CCA as part of a long-term investigation involving drug and contraband
distribution inside the facility. Prior to executing the warrant, counsel for the
government coordinated with law enforcement agents and a designated
attorney in the United States Attorney’s Office to establish a segregated team
-2-
(“taint team/filter team”) to review any potential attorney-client material
encountered during the course of the investigation. The taint agents were
used while executing multiple search warrants as part of this investigation.
Agents determined, based on financial documents, that approximately
95 inmates were implicated in drug and contraband-trafficking inside CCA.
Given the broad scope of the investigation, on April 12, 2016, a law
enforcement agent served a subpoena on CCA’s record custodian seeking “all
video footage or still images currently retained by the Corrections Corporation
of America (CCA) depicting any internal or external surveillance video or still
image taken between July 2014 and April 12, 2016 at the CCA facility in
Leavenworth, Kansas.”
Sometime during May, 2016, CCA provided six
drives, each three TB in size, to the government containing surveillance
footage from the CCA facility in Leavenworth. 1
On May 24, 2016, the parties held a meet-and-confer to address issues
related to the significant volume of discovery available. During the meeting,
the government informed all counsel that the government was in the process
of obtaining all surveillance at CCA for a specifc time period. Counsel for the
In reality, the government only obtained surveillance footage for a limited period based on
the retention capability of CCA’s surveillance system, which is estimated to be from
approximately January, 2016, to May, 2016. The government did not view the surveillance
footage due to the assertions that the footage might contain attorney-client privilege
material. Thus, the government is unable to verify the exact time period covered by the
CCA surveillance footage that was in the government’s possession.
1
-3-
government also informed defense counsel that pursuant to a search warrant,
agents recovered all “law library computers” inside the facility and proposed a
process that would allow defense counsel to review any potential
attorney-client material contained in the law library computers before agents
or attorneys involved in the investigation reviewed the material. Pursuant to
the procedure proposed by the government, after defense counsel identified
any potential attorney-client material, the taint team would then review the
privilege log provided by defense counsel and verify that it, indeed, contained
attorney-client material.
If the material was in fact deemed to be
attorney-client, then neither government counsel or agents assigned to the
case would be provided the material.
On June 29, 2016, the government emailed counsel explaining, “[f]rom
defense counsel, I am waiting for 6 drives, each 3 TB in size on which I will
download 18 total TB of surveillance footage.
The footage is divided by
camera angle, and we coordinated with CCA to provide a chart showing what
is depicted on each camera angle (ie, which pod, hallway, etc.).” On July 1,
2016, the government emailed counsel providing them with the make and
model of the external drives provided by CCA to facilitate copying of the
surveillance footage. On July 13, 2016, the government emailed Catherine
Rowlette’s counsel asking that he coordinate with other defense counsel to set
-4-
up a meet and confer with all counsel to discuss discovery issues. The parties
agreed to meet and confer on July 21, 2016, at 3:30 p.m. On July 13, 2016, the
Court contacted counsel sua sponte and set a hearing regarding discovery
issues for July 21, 2016, at 3:30 p.m.
No counsel in this case, or any related
case, has provided the government with external drives on which to download
the CCA surveillance footage before it was relinquished to the Court on
August 9, 2016.
During the hearing on July 21, the Court inquired: “And there are
cameras that are identified with particular—the visitor room and the
attorney/client room as well, or no?” Counsel for the government responded:
“Yes. Except that there is no—there are no audio in attorney/client unless
someone at CCA, an employee, took it upon themselves to turn on the audio.
But I don’t believe it’s recorded. It’s just that it would allow a particular CCA
employee to listen in without recording if—if the employee believes something
was afoot that he needed to be aware of.” At the time of the hearing, the
government believed that CCA’s system operated in that manner based on
descriptions provided by a cooperating inmate and his attorney during the
course of the investigation. On July 25, 2016, the government provided to
defense counsel an index 2 of camera angles related to the CCA surveillance
This index was prepared by CCA. After its receipt, an employee of the United States
Attorney’s Office converted the spreadsheet into a pdf document that has since been provided
2
-5-
footage. Within the index, as relevant to this proceeding, certain camera
angles are marked “Attorney Room, Attorney Room 4, Attorney Room 5,
Attorney Room 6, Attorney Room 7, Attorney Room 8, Attorney Room 9.” No
Assistant United States Attorney in this office has viewed the footage from the
CCA attorney-client rooms.
On August 4, 2016, counsel for Richard Dertinger, who is charged in a
separate case (case number 14-20067-CM), contacted the government in that
case and asserted an attorney-client privilege regarding the CCA surveillance
footage. The government agreed not to review the footage, and to instruct
anyone else with access to the footage not to review it until any litigation
pertaining to the attorney-client privilege was resolved. On August 5, 2016,
the surveillance footage was marked as containing potential attorney-client
material and placed in the government’s vault. 3
On August 5, 2016, the government met with coordinating discovery
counsel, Shazzie Naseem, to discuss discovery in this case.
Government
counsel advised Mr. Naseem that counsel for Mr. Dertinger was reviewing
footage to verify whether attorney-client meetings were recorded in any
fashion.
to counsel.
3 The United States Secret Service also had a copy of the surveillance footage. That copy of
the footage was also marked as containing potential attorney-client information, and agents
placed that copy of the footage in a secure location. All of these drives were subsequently
given to the Court on August 9.
-6-
B.
Pending Motions
In the instant motions, defense counsel requested an evidentiary
hearing after which counsel asked that this Court order CCA to disclose the
following -1.
Its policy regarding surveillance and documentation of meetings
between inmates and their counsel;
2.
Its policy concerning the recording of phone calls between inmates
and their counsel;
3.
How information regarding interaction between inmates and their
counsel is transferred to the United States Attorney’s Office for the
District of Kansas, or any law enforcement agency.
(Doc. 82, at 3.) Counsel further requested that this Court impound video
recordings, audio recordings, or other record of information derived from the
government’s possession of attorney-client meetings, in essence seeking a
protective order for potential privileged communications. (Id., at 3-4.)
The Amended Motion further requested that the Court return all
recorded confidential legal communication to the defendants through counsel,
and that the Court order the following –
1.
That the United States Attorney’s Office disclose its policy and
practice of gathering and reviewing privileged and confidential legal
communication from CCA or other pretrial holding facilities;
2.
That the United States Attorney’s Office identify the cases in
which it has gathered or reviewed confidential and privileged legal
communication, and whether that has been disseminated; and
-7-
3.
That the parties be allowed to address other evidentiary matters
as they arise in this quickly developing investigation.
(Doc. 85, at 11.) Counsel further reserved the right to request sanctions as
recognized in Schillinger v. Haworth, 70 F.3d 1132, 1142-43 (10th Cir. 1995),
advising that the defense would “ask the Court to appoint an outside entity to
1) investigate, in consultation with the defense and USAO, the conduct of CCA
and the USAO in recording and reviewing legal communication, and 2)
recommend appropriate remedies to the Court.” (Id., at 12.)
II.
Preliminary Matters
Fed.R.Crim.P. 41(g) is an improper mechanism for bringing this matter
before the Court. The video recordings were provided by CCA pursuant to the
service of a subpoena for video footage and still photos. See United States v.
Calandra, 414 U.S. 338 (1974)(The request for return of property is the
equivalent of a motion to suppress implicating the exclusionary rule which
does not extend to grand jury proceedings.) As such, these recordings were not
“seized” by the government pursuant to a search warrant or warrant
exception, making Rule 41 and the Fourth Amendment inapplicable.
In addition, because Mr. Burress, Mr. Rayton and Mr. Dertinger are not
indicted in the present case, they are not parties to this specific litigation and
are not entitled to seek relief in this case beyond the request for a protective
-8-
order for their privileged communications, if any are determined to exist.
Instead, each inmate should file a motion in their existing criminal case, or in
a civil case that would allow each inmate to address the potential recording of
privileged communications by CCA while meeting with their counsel.
Each inmate also lacks standing to file motions for the review and/or
return of recordings of their (potentially) privileged communications seized as
evidence. In order to establish standing, the Court would first be required to
determine whether a claimant’s Fourth Amendment rights have been violated.
Or, stated another way, has the disputed search and seizure “infringed an
interest of the defendant which the Fourth Amendment was designed to
protect.” Rakas v. Illinois, 439 U.S. 128, 139 (1978).
The government recognizes that ultimately the primary issue in the
defendants’ various motions is whether any of the CCA video recordings
provided pursuant to a subpoena, constitute privileged materials, and, if so,
whose communications are involved.
The defendants herein and other
inmates (and their counsel) lack standing to challenge the subpoena issued to
CCA, even if the materials provided might be used against the defendants or
other inmates. See In re Grand Jury Subpoenas Dated Dec. 14, 1987, 926 F.2d
847 (9th Cir. 1991).
However, because the defendants, Mr. Burress, Mr.
Rayton and/or Mr. Dertinger could request that this Court enter a protective
-9-
order in their respective cases for the CCA recordings, and because the Court
has general equitable jurisdiction, the government has agreed only to go
forward with the review of these recordings by a Special Master in order to
address the potentially sensitive nature of the recordings provided by CCA in a
timely and uniform manner. See Floyd v. United States, 860 F.2d 999 (10th
Cir. 1988). In addition, the government recognizes that these recordings, and
their handling, present unique issues that require the Court’s attention.
By proceeding in this manner, the United States does not waive the
presentation of evidence or any arguments it may wish to assert to the
allegations made in the hearing on August 9, 2016, before this Court or in the
initial motions filed herein. However, the government believes that certain
matters cannot be fully addressed or litigated until there is a determination as
to the nature of the material in the questioned recordings. 4
A.
Special Master
The government requests that the Court appoint a Special Master who
is a judge or retired judge, unfamiliar with the facts of this particular case and
investigation. Fed.R.Civ.P. 53. The Special Master should review the DVRs
in order to determine –
United States v. Neill, 952 F.Supp. 834 (D.D.C. 1997)(If the government submits disputed
documents under seal for in camera review by a neutral and detached magistrate or by court
appointed special masters, the defendant bears the burden of proving that tainted material
was provided to the government.)
4
-10-
1.
What is on the video recordings in the CCA interview rooms
designated as “attorney room,”
2.
Whether any interaction is depicted that constitutes
attorney-client privileged communication, and
3.
If a recorded contact is determined to be privileged, which
inmate is involved and whether any exception to the privilege
exists.
The government requests that the Court order the following procedures–
1.
The Special Master shall have authority to review all recordings
on DVRs 1 through 6 provided by CCA, in order to determine whether the
materials are protected from disclosure because of attorney-client privilege
and whether there are applicable exemptions to this privilege.
2.
The Special Master shall retain both sets of DVRs (designated as
the “original” from CCA, and the “copy”) using the “copy” for his/her review.
The “original” shall be kept under seal in a secure, climate-controlled facility.
3.
The Special Master is authorized to meet jointly with the parties
and to employ any procedure for review that may help ensure an accurate,
impartial and expeditious review
of the recordings, such that all
non-privileged recordings are produced to the government as promptly as
possible.
-11-
4.
The Special Master may meet with the parties jointly and may
avail him/herself of any aid or expertise that s/he may have, or any other
sources of aid and expertise that s/he may need, in order to perform the review
appropriately and in a manner that is consistent. The parties are directed to
work with the Special Master to expedite these proceedings and to ensure
their integrity and accuracy.
5.
The Special Master should immediately hand over copies of any
recordings to the government that the parties agree are not privileged so that
those materials may be prepared for discovery and disclosure in the criminal
case. With regard to the remaining materials, the Special Master is directed
to issue a report and recommendation on an item by item basis (recording by
recording), avoiding the disclosure of any material the Special Master believes
to be privileged. The parties may object to the report and recommendations
within 14 days of its issuance. This Court should review any such objections
de novo. 5
B.
Issues not Properly Before this Court
The only issue properly raised at this time is the request for a protective
order and determination about whether the CCA DVRs contain privileged
communications. Any other issue regarding policies, practices, and/or access
See United States v. Stewart, 2002 WL 1300059 (S.D.N.Y. June 11, 2002)(unpublished);
United States v. Abbell, 914 F.Supp. 519 (S.D.Fla. 1995); and DeMassa v. Nunez, 747 F.2d
1283 (9th Cir. 1984).
5
-12-
to specific images has not been properly raised by an appropriate party in this
or any other case.
Jacquelyn Rokusek represents a person not indicted herein. Any issues
regarding access to specific images should be raised in that specific case, not
here.
As officers’ of the Court, government counsel represent that government
counsel has not reviewed these recordings. In fact, there was no necessity for
the evidence presented last week because the government announced at the
beginning of the hearing that it was ready to turn the recordings over to the
Court, and agree to the appointment of a Special Master to review those
recordings. The government, however, requests an opportunity to present
evidence regarding its handling of these DVRs, if and when it becomes
necessary to do so, in the proper forum.
Counsels’ requests for the following should be denied for the following
reasons -1.
The request for CCA’s policy regarding surveillance and
documentation of meetings between inmates and their counsel is
unnecessary and moot at this point due to the Court’s August 9, 2016,
order that CCA cease the recording and surveillance of meetings
between inmates and their counsel.
2.
The request for CCA’s policy concerning the recording of phone
calls between inmates and their counsel is unnecessary and moot at this
point due to the Court’s August 9, 2016, order that CCA cease the
recording of telephone calls between inmates and their counsel.
-13-
3.
The request for a description of how information regarding
interaction between clients and counsel is transferred to the United
States Attorney’s Office for the District of Kansas, or any law
enforcement agency, is a request for an unwarranted investigation and
discovery not authorized by the law or the Rules of Evidence.
4.
The request that the United States Attorney’s Office disclose its
policy and practice of gathering and reviewing privileged and
confidential legal communication from CCA or other pretrial holding
facilities, is a request for investigation and discovery not authorized by
the law or the Rules of Evidence. Furthermore, counsel is aware of the
United States Attorney’s Manual (USAM), which controls the handling
of special materials seized pursuant to lawful process and authorization.
Though nothing in the record suggests that the United States Attorney’s
Office does not adhere to and follow the USAM, which is an internal
document that does not confer independent rights or remedies to third
parties.
5.
The request that the United States Attorney’s Office identify
cases where it has gathered or reviewed confidential and privileged legal
communication, and whether that has been disseminated, is irrelevant
to the instant case and is an unsubstantiated and inappropriate request
for investigation and discovery not authorized by the law or the Rules of
Evidence, or supported by the evidence.
Counsel has suggested that this Court or the Special Master assume the
role of investigating CCA and/or the United States Attorney’s Office. The
United States does not consent to this. The evidence demonstrates that such
a request is unwarranted on the facts already presented, and outside the scope
of this Court’s authority and the issues presented and litigated within this
case. See Fed.R.Civ.P. 53(a)(1)(A). Furthermore, CCA is not an entity of the
United States, is not a party to this proceeding, and has not been afforded due
-14-
process in this matter.
Wherefore, the United States requests that the Court appoint a Special
Master to review the CCA recordings in order to determine if there are any
privileged communications contained therein, allow for additional briefing on
the relevant issues that arise regarding that specific matter, and, if needed,
set a hearing date for the presentation of evidence by the government after the
Special Master makes an initial determination on the nature of the DVR
recordings.
Respectfully,
THOMAS E. BEALL
Acting United States Attorney
/s/
Debra L. Barnett
DEBRA L. BARNETT
United States Attorney’s Office
301 N. Main, Suite 1200
Wichita, Kansas 67202
316-269-6481
K.S.Ct.No. 12729
-15-
I hereby certify that on August 15, 2016, I electronically filed the
foregoing with the Clerk of the Court by using the CM/ECF system which will
send a notice of electronic filing to the attorneys for the defendants.
s/ Debra L. Barnett
DEBRA L. BARNETT
Assistant U.S. Attorney
-16-
Plaintiff,
v.
LORENZO BLACK,
KARI CARTER,
ANTHON AIONO,
ALICIA TACKETT,
CATHERINE ROWLETTE,
DAVID BISHOP,
Defendants.
ORDER
Upon hearing from the parties on August 16, 2016, the Court Orders
the preservation and protection of any and all audio recordings of attorneyclient communications at Community Corporation of America (CCA). The
Court FINDS:
The Government has disseminated or made available to counsel for the
defendants, and others, discovery that contains audio recordings of attorneyclient communications at CCA. The discovery that contains audio recordings
of attorney-client communication may be covered by the attorney-client
privilege or otherwise confidential.
To prevent further possible review or dissemination of protected
communications, and to avoid further disputes regarding the protected
nature of such information, the Court hereby ORDERS:
CCA shall provide to the United States Marshal Service (USMS) all
audio recordings of attorney-client communication, both original and copies.
CCA shall also provide, in writing, any other person or entity that CCA has
provided audio recordings of attorney-client communication.
The government shall provide to the Court a list of all persons or
entities to whom these recordings have been made available, including,
without limitation, any person who accessed the recordings while reviewing
discovery in the USAO. The government shall notify these persons or entities
that it must immediately refrain from accessing and listening to any of the
audio recordings and that, within seven business days, must return all
recordings and derivative information, such as transcripts, notes, or reports
concerning these recordings, to the Court. Any written material shall be
submitted in a sealed envelope. The government’s notice shall be issued
within 24 hours of this Order, shall be in writing, and copies of the written
notice shall be provided to the Court.
In order to facilitate continued discovery production and review in this
case, the Coordinating Discovery Attorney will assist defense counsel with
the identification and removal of potentially privileged attorney client
communications located on the 1 TB hard drives recently distributed by
the government. Once the identified material has been removed, it will be
provided to the Court and the hard drive will be returned to counsel for
their continued discovery review.
No dissemination by the government of these recordings to third
parties will be deemed to have waived a party’s claim to privilege or
confidentiality or estop that party or the privilege holder from designating
the audio recordings or derivative material as confidential or privileged.
IT IS SO ORDERED.
Dated this 18th day of August, 2016.
s/ Julie A. Robinson
Judge Julie A. Robinson
U.S. District Judge
Plaintiff,
v.
LORENZO BLACK,
KARI CARTER,
ANTHON AIONO,
ALICIA TACKETT,
CATHERINE ROWLETTE,
DAVID BISHOP,
Defendants.
Memorandum in Support of
Proposed Order to Appoint a Special Master
The defense proposed Order to Appoint a Special Master (attached) is
designed to deal with the immediate discovery issues in this case and
related cases; to allow for fact-finding as to past and current practices that
may have resulted in Sixth Amendment violations; and to recommend
appropriate actions and remedies available to this Court.
The Court has the authority to appoint a Special Master both by Fed.
R. Civ. P. 53 and under its inherent power to manage litigation. Based on
the government’s response, D.E. 110, the government seeks an Order
authorizing a Special Master to perform a very narrow set of clerical
tasks. Thus, no consent to the scope of the Special Master has been
1
reached by the parties. The Court, however, may order a Special Master,
even with no consent, if the Special Master is to hold trial proceedings and
make or recommend findings of fact if the appointment is warranted by
some exceptional condition.1 Also, the Court may appoint a Special
Master, without consent of the parties, to address pretrial and post-trial
matters that cannot be effectively and timely addressed by an available
district judge or magistrate judge of the district.2
Exceptional Conditions
Several exceptional conditions exist in this case to justify the proposed
scope of the Special Master inquiry:
First, the recording, both by video and audio, of protected attorneyclient communications of pretrial detainees has been established and was
previously unknown to the Court or to the defense. The practice and
purpose of these recordings, the time-span, the facilities that engaged in
these recordings, and the distribution of these recordings to any USAO or
agent, present an exceptional condition that requires the broad inquiry
and authority of a Special Master.
1
2
See Fed. R. Civ. Pro. 53(a)(1)(B)(i).
See Fed. R. Civ. Pro. 53(a)(1)(C).
2
Second, the USAO subpoenaed and attempted distribution video
recordings protected attorney-client communications and actually
distributed of audio recordings of protected attorney-client
communication. To date, the USAO’s knowledge, intent, and purpose in
obtaining these recordings is unknown; the manner in which it obtained
protected attorney-client phone calls is still unknown; the frequency and
breadth of this practice in other cases is not yet known. This qualifies as
an exceptional condition and an area of inquiry that cannot be completely
and timely assessed by the Court.
Third, the government’s attempt to actually use the subpoenaed video
recordings of specific attorney-client meetings, and the content of those
recordings, to force a defense attorney to withdraw from two cases is,
independently, an exceptional condition that warrants appointment of a
Special Master to determine the pervasiveness and effectiveness of this
prosecution tactic in this and in other cases. This, too, is an area that
cannot be efficiently assessed by the Court without the assistance of a
Special Master.
Fourth, the unknown scope and time span of this practice of obtaining,
whether inadvertently or intentionally, and then using protected
communications by the USAO, and the many cases, both pending and
3
completed, that may have been compromised by this practice also qualifies
as an exceptional condition, and demands the assistance of a Special
Master to effectively and efficiently investigate.
Fifth, the government’s response has been unhelpful to the Court. It
has not answered the most piercing questions before the Court, such as
how and why this happened and whether it has happened before. It has
not responded to the defense evidence, which stands unrefuted before this
Court.3 It has not provided accurate information to the defense.4 Instead,
it has challenged standing of the parties and sought to divest this Court of
jurisdiction,5 even resorting to accusations of defense forum shopping.6
The refusal of the government to respond to the defense or to inform the
Court is an exceptional condition that calls for appointment of a Special
Master.
August 9, 2016, tr. at p. 115 (the parties were to “advise the Court within seven
days whether you intend to file anything else or need an additional hearing.”).
3
See, e.g., Ex. 443 (August 4, 2016, email forwarded by the USAO from the U.S.
Marshal assuring that CCA did not, and could not, video record attorney-client
visitation).
4
5
D.E. 110, First Gov’t Response at pp. 8-14.
United States v. Huff, D. Kan. Case # 14-20067-CM, Status Conf. Transcript.
August 22, 2016, p. 5.
6
4
Scope of the Inquiry
The first goal in the proposed Order is to determine which portions of
the discovery in this case must be withheld because of privilege and
confidentiality concerns, and which portions may be disseminated to the
parties. We suggest that the Special Master simply excise the video
recordings of the attorney rooms. 7 Reviewing each and every visit, “item
by item” “recording by recording” as the government argues,8 for content is
burdensome and of little benefit to the Court or to the parties. A review of
CCA visitation records will tell which attorneys and clients met during the
relevant time period. This will allow discovery and other litigation to
proceed in the affected cases. It is also a much more economical approach
than that suggested by the government.
To fully assess the reach of the privilege violations, the Special Master
must have access to the documents, ESI, and technology necessary to
determine whether and when any of the recorded communications were
The one caveat is this: there is both evidence from the government (Ex. 447,
pp. 11-12) and independent evidence that may be available to the Special Master
that CCA had both the ability to audio record these attorney client meetings and
may have actually done so on occasion. CCA’s denial is of little meaning, as are
government claims that they are unaware of audio recordings. Should the
Special Master develop sufficient information, the video recordings should be
available for review at the Special Master’s discretion.
7
8
D.E. 110, Gov’t Resp. at 12.
5
reviewed, and how and whether there is a practice or policy of the USAO
obtaining, for example, recorded privileged telephone calls. Expanding the
inquiry beyond the protected communications in this case is necessary to
determine whether this was or is a routine and pervasive means of
investigation and prosecution.
Free and ready access to information is critical to the Special Master’s
inquiry. This may require defense attorneys to disclose confidential or
privileged attorney-client information. An attorney must be assured that
making such disclosures will not waive either confidentiality or privilege.
The Court should grant the Special Master authority to solicit this
information with the protection of Kansas Rule of Professional Conduct
1.6. That information should remain confidential, and used only to direct
further Special Master investigation, to prepare the Report, and for the
Court to disclose as necessary, with notice to the affected parties.
Likewise, the government will have a strong interest in protection of
confidential information relevant to ongoing investigations, pending
charges, and in protecting certain witnesses. Accordingly, the similar
protection should be afforded to the USAO.
In order for the Special Master to thoroughly investigate the facts he
must have the cooperation of all parties and their agencies. If any party or
6
person refuses to cooperate with the requests of the Special Master, they
must have the authority to impose sanctions or other enforcement
measures against any person obstructing the inquiry.9 The government
has refused to explain, much less deny, its possession and use of the
recordings, and whether this was a common investigative or prosecutorial
tool. General allusions to inadvertent possession should be well
investigated, first because it is belied by the evidence in the record, and
second, because the government’s handling of the protected material, both
in attempting to gain advantage in litigation and by disseminating the
protected material, was the wrong response, both legally and ethically, to
inadvertent possession of protected material. For the Special Master to
address any such issues, there must be some means of compelling
information and cooperation, as well as enforcing the Order of the Court.
Today, we are still unaware of how the privileged attorney-client phone calls
came to be in the government’s possession. Requests for material, such as the
spreadsheets that CCA provided to help identify the video camera placement
(August 9, 2016, transcript at p. 114), remain unanswered. And even as Black
counsel were identifying and reviewing protected attorney-client phone calls
recorded by CCA and disseminated by the government, CCA continued to
maintain that attorney-client phone calls were not recorded. KCUR, Discovery of
Video Recordings at Leavenworth Detention Center Spurs Outrage, August 12,
2016 (“We do not record inmate/attorney telephone conversations at
Leavenworth or any other CCA facility,” CA Jonathan Burns, CCA spokesman).
9
7
For these reasons and others previously presented to the Court, the
defense asks the Court to grant the attached proposed Order Appointing
Special Master.
s/Melody Brannon
District of Kansas
Phone: 785/232-9828
Fax: 785/232-9886
Erin S. Tomasic
8
Debra L. Barnett
Criminal Chief
John Jenab
Jenab Law Firm, PA
David J. Guastello
Jason P. Hoffman
Hoffman & Hoffman
Michael M. Jackson
jacksonmm@aol.com
Cynthia M. Dodge
cindy@cdodgelaw.com
Shazzie Naseem
s/ Melody Brannon
Melody Brannon
9
Plaintiff,
v.
LORENZO BLACK,
KARI CARTER,
ANTHON AIONO,
ALICIA TACKETT,
CATHERINE ROWLETTE,
DAVID BISHOP,
Defendants.
ORDER APPOINTING SPECIAL MASTER
On August 9, 2016, and again on August 16, 2016, the Court heard evidence
and argument from the parties regarding Sixth Amendment violations arising from
the United States Attorney’s Office possession of surreptitious video recordings of
attorney-client meetings and audio recordings of attorney-client communications at
the pre-trial holding facility, Corrections Corporation of America (CCA). Counsel in
this, and other cases, filed various motions challenging the recordings and the
government’s possession and use of the recordings. The recordings have been taken
into the Court’s custody until further order of the Court.
As the record stands now, the recordings of the attorney-client
communications violated the Sixth Amendment. The scale and scope, however, are
not yet established, nor is the full extent of the violations, whether constitutional,
legal, or ethical. Because of the potential magnitude of the violations and the
voluminous evidence to be gathered and reviewed, the Court has determined that
exceptional conditions exist and that matters exist that cannot be effectively and
timely addressed by an available district court judge or magistrate judge in the
district.
Thus, the Court finds that a Special Master is appropriate and shall be
appointed to assist the Court in determining what discovery may be released, what
must be retained, the scope of the recordings, the knowledge, intent and purpose of
the USAO in obtaining protected communications, and what remedies, if any, may
be appropriate. The initial objectives and powers of the Special Master are set forth
below. The Court may expand the scope of the inquiries, or the authority needed to
meet the objectives, upon request of the Special Master.
Objectives of the Special Master
Objective One:
To determine what materials obtained by the government in this case are
covered by the attorney-client1 privilege, confidentiality, or other privacy
protections (protected materials), and to determine how relevant non-protected
materials can be identified and distributed as discovery to these defendants and
other affected parties.
Attorney-client includes other members of the defense team, including
investigators, paralegals, interpreters, and expert service providers.
1
Primary Areas of Inquiry:
A. Review portions of video surveillance, other than the video of the attorneyclient rooms2 designated on DVR No. 6, to determine whether they contain
privileged or confidential information.3
B. Determine whether audio recordings of the attorney-client visitation room
were made and whether those recordings are included with the video
surveillance or other materials requested or obtained by the United States
Attorney’s Office for the District of Kansas (USAO).4
C. Review recordings of telephone calls, or conduct searches by attorney
phone numbers, to determine which calls are between a client and his or
her attorney.
D. Determine what, if any, steps were taken by pretrial holding facilities to
protect confidential audio communications, such as blocking certain phone
numbers or warning callers, and whether those measures were
communicated to either the clients or their attorneys.
E. Review the computers, seized from the law library at CCA, to determine
whether they contain attorney-client privileged or confidential
information.
F. Determine how the relevant non-protected information can be excised
from the video recordings, the audio recordings, and the law library
computers, so that any non-protected materials can be distributed as
discovery in this and other cases.
The surveillance video of the attorney-client visitation rooms contains confidential
non-verbal communication and will not be viewed by, or provided to, any party
other than the Special Master, without demonstration to this Court that the
materials are not protected and are relevant to material issues in this case.
2
The volume of video recordings prohibits review of all of the footage for
determination of these issues. The Special Master has authority to review any
material, but is not expected to review or categorize all video recordings filed inder
“Attorney Room” and “Attorney Room 4-7” on Disc 6.
3
USAO shall include all attorneys employed by the District of Kansas USAO; all
federal, state, and task force agents working with the USAO; and all other
employees of the USAO, including IT, paralegals, and other staff.
4
G. Determine whether any other protected communications, such as legal
mail or videoconferencing, were recorded by the pretrial holding facilities
or obtained by the USAO.
Objective Two:
To determine how the USAO came into possession of protected materials,
including those identified in Objective One, and determine any policy or practice
related to obtaining protected materials. This should include identifying any specific
cases or specific government attorneys or agents who have obtained protected
material.
A. Determine the prior policy and practices of pretrial holding facilities
under contract with the United States Marshal Service with regard to
video recording or audio recording protected communications.
B. Identify past occasions when CCA, or other contract pretrial holding
facilities, have made available to the government or any law enforcement
agency video or audio recordings of protected communications.
C. Determine whether the USAO has intentionally sought production,
formally or informally, of any protected communication from pretrial
holding facilities for use in an investigation, grand jury proceedings, or
prosecution, and by what means.
D. Determine whether the USAO has inadvertently come into possession of
protected materials from any contract pretrial holding facility and
whether appropriate remedial or protective measures were taken to notify
the parties and protect the security of the communications.
E. Determine whether and how the USAO or its agents have used or
attempted to use protected material in any investigation, grand jury
proceedings, or litigation, whether or not it was disclosed to the Court or
to the parties. This should include any attempts to interfere with the
attorney-client relationship, such as requesting attorney fees or alleging
conflicts of interest.
Objective Three:
To report to the Court the parties affected by any breaches of privilege,
confidence, Constitutional rights, statutory rights, or ethical obligations, and to
recommend available remedies, in this case or others, if any are appropriate.
A. Identify by using the visitation logs and other facility records the
attorneys and clients who met during the time span covered by the video
recordings of protected meetings in this case, or any other case involving
USAO possession of protected material discovered during this inquiry.
B. Identify the attorneys and clients who communicated by phone or
videoconferencing during the time span covered by the audio recordings in
this case, or any other case involving USAO possession of protected
material discovered during this inquiry.
C. Recommend possible remedies that might be available to parties affected
by identified breaches of privilege, Constitutional right, statutory rights,
or ethical obligations.
Authority, Powers, and Responsibilities of the Special Master
The Court grants to the Special Master the following authority, powers, and
responsibilities:
A. Communicate, ex parte, with parties and attorneys to facilitate scheduling
matters, to make informal suggestions to the parties to facilitate
compliance with Orders of the Court; and as necessary to permit the full
and efficient performance of the master’s duties;
B. Issue subpoenas for the production of documents or taking of testimony on
the record;
C. Inspect and copy files, documents, communication, and electronic data of
any pretrial holding facility, the United States Marshal Service, and the
USAO as necessary to complete the state objectives of the inquiry;
D. Retain the services of experts, consultants, or advisors for specialized
tasks, such as computer analysis;
E. Obtain privileged information from counsel without the disclosure
constituting a waiver of the attorney-client privilege;5
F. Impose sanctions, other than contempt, against a uncooperative party or
non-party, and may recommend contempt sanctions against a party or
non-party.
G. The Special Master will be compensated at a rate of $ per hours, and
shall be reimbursed for all reasonable expenses. The Special Master’s fee
and other costs shall be borne by _____________. The Special Master shall
submit periodic itemized statement of fees and expenses to ________.
H. The Special Master shall proceed with all reasonable diligence and to keep
the Court apprised of progress and an anticipated time line toward
completion of the appointment.
I. Upon consultation with the Court, the Court may Order the Special
Master to expand the inquiry beyond the Objectives listed above, as
necessary and appropriate.
5
Kansas Rules of Professional Conduct 1.6.
Access to the Special Master’s Findings
The parties shall file with the Clerk, under seal, all papers for consideration
by the Special Master. The Special Master shall also file with the Clerk, under seal,
all reports or other communications with the Undersigned Court. At the conclusion
of the Special Master’s inquiry, the Court shall, at its discretion, make available to
the parties any findings and recommendations of the Special Master. The Court will
maintain the confidentiality of any protected material, unless prior notice and
opportunity to object has been provided to the affected party.
Any party seeking review of any ruling of the Special Master shall comply
with the requirements of Fed. R. Civ. P. 53(f). Any party may object to any Order or
Report by filing such objection with the Court within seven days of the issuance of
the Order or Report. Any response to such objection must be within seven days of
the objection. The Court will determine whether, based on the reasons provided in
the party’s objection, it is appropriate to review the Special Master’s Orders or
Report under a de novo or other appropriate standard, and whether the objection
should be sustained or denied.
The Court appoints _______________________ as Special Master.
IT IS SO ORDERED.
Dated this ___ day of August, 2016
___________________________
Judge Julie A. Robinson
U.S. District Court Judge
Plaintiff,
vs.
LORENZO BLACK,
KARL CARTER,
ANTHON AIONO,
ALICIA TACKETT,
CATHERINE ROWLETTE,
and
DAVID BISHOP,
Defendants.
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Case No. 16-20032-JAR
UNITED STATES’ RECOMMENDATION RELATED TO SCOPE OF SPECIAL
MASTER AND PROPOSAL NOT TO RETAIN CERTAIN EVIDENCE
The United States of America, by and through undersigned counsel,
provides the following facts concerning the acquisition of surveillance video
from Corrections Corporation of America-Leavenworth (CCA) and
recommendations related to the scope of the duties of the Special Master. In
addition, in an effort to conserve valuable court resources, the United States
proposes not to seek return of video taken from the attorney-client visitation
rooms, provided the excised video evidence is retained by the Special Master,
as discussed further below.
RELEVANT FACTS CONCERNING THE UNDERLYING INVESTIGATION
In September 2015, the Kansas Bureau of Investigations began an
investigation into a large-scale conspiracy to introduce contraband and illegal
drugs into CCA after a confidential informant provided information about an
inmate selling synthetic cannabis inside the facility. Shortly thereafter, the
United States Marshals Service, United States Secret Service, and Internal
Revenue Service-Criminal Investigations joined the investigation. During the
investigation, agents have learned through interviews of informants housed at
CCA, that the contraband conspiracy involves numerous inmates, along with
CCA guards, and other individuals outside of CCA.
Agents identified one source of supply, Lorenzo Black, who provided
contraband to a CCA officer, Anthon Aiono, who brought contraband into the
facility and distributed it to CCA inmates. Those inmates sold the contraband
to other CCA inmates. The money was exchanged between inmates through
wire transfers initiated through telephone calls to conspirators outside of CCA,
including Alicia Tackett, Catherine Rowlette, and David Bishop, who facilitated
wire transfers in payment for the drugs and contraband.
Agents conducted a financial investigation of the wire transfers and
inmates’ commissary accounts and uncovered evidence showing thousands of
dollars were proceeds of drug and contraband distribution. A review of
defendant Karl Carter’s account revealed that he had received $14,898.80 in
his commissary account.
On April 8, 2016, agents observed a meeting between defendants Black
and Aiono (who was a CCA corrections officer at the time). Following the
meeting, law enforcement officers stopped both vehicles and found $2,000 in
Aiono’s possession and suspected methamphetamine in Black’s possession.
2
That evening, agents executed a court-authorized search warrant at CCA.
Agents searched the inmate housing pods and located many items of
contraband at the facility, including synthetic cannabis, tobacco,
methamphetamine, and drug paraphernalia.
Since executing the search warrant at CCA, agents have continued their
investigation. Based on review of financial documents including wire transfer
records, agents have identified approximately 95 inmates as potentially
involved in the drug and contraband distribution conspiracy inside CCA.
RELEVANT FACTS CONCERNING THE RECEIPT OF THE CCA VIDEO
A. No CCA video recordings depicting attorney-client meetings has
been viewed by any employee of the United States Attorney’s Office
or any law enforcement officer.
The most important fact for the Court and the Special Master to consider
is the simple fact that no employee of the United States Attorney’s Office or law
enforcement officer has viewed any recording of attorney-client meetings
provided by CCA. The government previously made the Court aware of the fact
that no Assistant United States Attorney for the District of Kansas has viewed
video of attorney-client meetings in its pleading (Doc. 110, at 6). At the August
16, 2016 hearing regarding the appointment of the Special Master, the Federal
Public Defender (FPD) pointed out that the government’s motion was silent as it
relates to whether any law enforcement officer has viewed the video.
Notwithstanding the FPD’s statements on this issue, the government was silent
because it wanted to be as accurate as possible with regard to this very
important and sensitive topic. The government, after communications with law
3
enforcement officers assigned to this investigation and a retired law
enforcement officer previously assigned to the investigation, confirms and
informs the Court and the Special Master that no prosecutor or law
enforcement officer has viewed any CCA recordings depicting any attorneyclient meetings. As further clarification, a KBI Special Agent briefly viewed a
portion of the CCA recordings that contained approximately sixteen camera
views on his screen at one time. One of those sixteen camera views depicted an
empty interview room, and the agent is certain there were no attorney-client
meetings occurring at the time. The only persons known to the government
who have viewed any video containing an attorney-client meeting are defense
counsel for Richard Dertinger in a separate case; her investigator; possibly the
Coordinating Discovery Attorney in this matter; and whoever was present
during the in-camera presentation of the video on August 9, 2016.
Additionally, the criminal coordinators for each of the three offices for
the United States Attorney for the District of Kansas have polled every
prosecutor in the District, and no prosecutor in this District has, in any other
case, viewed video of an attorney-client meeting from CCA or any other
detention facility.
B. Counsel for the government did not intend to obtain video
recordings of attorney-client meetings.
As set forth in the government’s First Response (Doc. 110), on April 12,
2016, a law enforcement agent served a subpoena on CCA’s record custodian
seeking “all video footage or still images currently retained by the Corrections
4
Corporation of America (CCA) depicting any internal or external surveillance
video or still image taken between July 2014 and April 12, 2016 at the CCA
facility in Leavenworth, Kansas.” The subpoena was broadly drafted because
the investigation revealed a widespread conspiracy to distribute drugs and
contraband within the facility. For example, the investigation has revealed that
drugs and contraband were transferred between inmates in the law library,
medical facility, twelve-step program, outdoor recreation areas, various pods in
which inmates are housed, and church. There have been no allegations that
drugs or contraband were distributed in the attorney-client meeting rooms.
Counsel for the government did not intend to obtain any recordings of attorneyclient meetings when issuing the subpoena. On or about May 17, 2016, CCA
provided six drives, each three TB in size, to the government containing
surveillance footage from the CCA facility in Leavenworth. 1 A Secret Service
Agent then generated a copy of the CCA video recordings for the U.S. Attorney’s
Office. Upon receipt of the video recordings, the litigation support specialist in
the U.S. Attorney’s Office noticed that the recordings were not accompanied
with a player. She coordinated with the Secret Service to obtain a player for
the recordings.
In reality, the government only obtained surveillance footage for a limited
period based on the retention period of CCA’s surveillance system, which is
estimated to be from approximately January 2016 to May 2016. The
government previously agreed not to view the surveillance footage based on an
assertion of attorney-client privilege. Thus, the government is unable to verify
the exact time frame of the CCA surveillance footage that was in its possession
until all of the video was relinquished to the Court on August 9, 2016.
1
5
On April 26 and 27, 2016, counsel for the government emailed all
counsel of record in this case explaining that they needed to provide external
drives on which to download a substantial amount of surveillance footage
obtained from CCA. 2
C.
Counsel for the government was coordinating with
defense counsel of record regarding other potentially
privileged material, and a filter team was in place to
review any potentially privileged material.
On May 24, 2016, the parties held a meet and confer to address the large
volume of discovery in this case. During the meeting, counsel for the
government informed all counsel of record that the government was in the
process of obtaining all surveillance at CCA during a particular time frame.
In advance of the meet and confer, counsel for the government sent an email to
all counsel of record explaining:
Seven computers were seized and imaged from the “law libraries”
inside CCA. Because the computers arguably may contain
attorney/client material generated by the inmates, we should work
together to exclude that material from the case agents’ review. I
suggest the following procedure:
At the meet and confer, all attorneys should weigh in on search
terms to identify potential attorney/client material. Once those
search terms are generated, a “taint” team of agents will generate
all data from the “law library” computers containing those terms.
That data will be provided to defense counsel for review during an
agreed upon time frame. Defense counsel should identify any
documents they believe contain privileged attorney/client material.
The “taint” team of agents will then review the privileged material
Discovery related to this case has also been disseminated in other cases, as
needed, because the conduct at issue may serve as the basis for a sentencing
enhancement in those other cases. No counsel in this case or any related case
has provided the government with external drives on which to download the
CCA surveillance footage, before it was relinquished to the Court on August 9,
2016.
2
6
identified by defense counsel as attorney/client and verify the
privilege for the government. All information not identified by
defense counsel as privileged will be reviewed by the case agents as
part of discovery.
Please let me know if you disagree with the proposed procedure.
During the meet and confer, counsel for the government explained, based
on cooperator statements, it was believed that inmates used the law library
computers to communicate about drug and contraband trafficking inside the
facility. Defense counsel were particularly concerned that the law library
computers would likely contain communications from defendants other than
those charged in the case, including past clients of the attorneys of record and
inmates represented by other attorneys. At this point, the law library
computers have been digitally imaged, and all documents contained on the
computers are ready for review. No one to date has reviewed the documents.
On July 13, 2016, counsel for the government emailed Michael Jackson,
attorney for Catherine Rowlette, and asked that he coordinate with defense
counsel to set up a meet and confer with all counsel of record to discuss
discovery issues. The parties agreed to meet and confer on July 21, 2016. On
July 13, 2016, this Court contacted all counsel of record sua sponte and set a
hearing regarding discovery issues for July 21, 2016.
D. During the July 21, 2016 hearing, counsel for the government
first brought to the Court’s attention the existence of potential
attorney-client video recordings.
During the July 21 hearing, the Court inquired: “And there are cameras
that are identified with particular—the visitor room and the attorney/client
room as well, or no?” Counsel for the government responded: “Yes. Except
7
that there is no—there are no audio in attorney/client unless someone at CCA,
an employee, took it upon themselves to turn on the audio. But I don’t believe
it’s recorded. It’s just that it would allow a particular CCA employee to listen in
without recording if—if the employee believes something was afoot that he
needed to be aware of.” At the time of the hearing, counsel for the government
believed that CCA’s attorney-client rooms contained video recorders based on
descriptions provided by a cooperating inmate and his attorney during the
course of this investigation. Counsel for the government was unaware whether
CCA actually recorded or simply monitored attorney-client meetings. Further,
counsel for the government was unaware that CCA provided recordings of the
attorney-client rooms to the government in response to the subpoena. (At no
point during this hearing did counsel or the Court demonstrate concern that
video surveillance of attorney-client meetings may be available as part of the
discovery. At the hearing, counsel for the government spoke with counsel for
one defendant about raising potential attorney-client communications
associated with the law library computers. It was agreed the issue would be
first addressed at the next meet and confer before bringing the matter to the
Court’s attention.) Counsel for the government spoke with a case agent and
instructed him to notify her if he encountered video recordings of attorneyclient meetings. Counsel for the government also instructed the case agent not
to view any attorney-client meetings.
On July 25, 2016, the government provided to defense counsel of record
an index of camera angles related to the CCA video recordings. Within the
8
index, as relevant to this proceeding, certain camera angles are marked
“Attorney Room, Attorney Room 4, Attorney Room 5, Attorney Room 6, Attorney
Room 7, Attorney Room 8, Attorney Room 9.” An employee of CCA prepared
the index and provided it to the Litigation Support Specialist at the United
States Attorney’s Office. Counsel for the government first reviewed the index
on August 4 or 5, 2016.
E. After defense counsel verified CCA provided recordings of
attorney-client meetings, the U.S. Attorney’s Office immediately
secured the recordings
On August 4, 2016, counsel for Richard Dertinger in a separate case
(case number 14-20067-CM) contacted the government and asserted an
attorney-client privilege regarding the CCA video recordings. (Mr. Dertinger is
one of the other inmates at CCA believed to be involved in this drug trafficking
and contraband conspiracy at CCA; therefore, some of the discovery in this
case was provided to his counsel as it may be used for Mr. Dertinger’s sentence
hearing.) The government, having never reviewed the footage, agreed not to
review the footage, and instructed anyone else with access to the footage not to
review it until any litigation pertaining to the attorney-client privilege was
resolved. On August 5, 2016, the CCA video recordings were marked as
containing potential attorney-client material and placed in the government’s
vault. The footage, along with footage that was in the possession of the United
States Secret Service, all footage having never yet been viewed by the
government, was provided to the Court on August 9, 2016.
9
On August 4, 2016, Shazzie Naseem was appointed as Coordinating
Discovery Attorney in this case.
On August 5, 2016, counsel for the
government met with Mr. Naseem to discuss discovery. Government counsel
advised Mr. Naseem that counsel for Mr. Dertinger was reviewing footage to
verify whether attorney-client meetings were recorded in any fashion.
Mr.
Naseem asked government counsel about the quality of the video, and counsel
suggested that he talk with counsel for Mr. Dertinger.
RELEVANT LAW
A. Attorney-Client Privilege Generally
While the government has no desire to review any video footage of
attorney-client meetings on the CCA video, a review of the relevant law is
helpful. 3 The attorney-client privilege is one of the oldest recognized privileges
for confidential communications. Swindler & Berlin v. United States, 524 U.S.
399, 404 (1998). “The privilege is intended to encourage ‘full and frank
communication between attorneys and their clients and thereby promote
broader public interests in the observance of law and the administration of
justice.” Id. (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).
“A party claiming the attorney-client privilege must prove its
applicability, which is narrowly construed. In order to be covered by the
attorney-client privilege, a communication between a lawyer and client must
relate to legal advice or strategy sought by the client.” United States v. Merida,
3
We discuss a couple of caveats in Section II, infra.
10
___ F.3d ___, 2016 WL 3741867, *5 (10th Cir. July 12, 2016) (quotations
omitted, emphasis in original).
The party seeking to assert the attorney-client privilege has the burden of
establishing its applicability. In re Grand Jury Subpoenas, 144 F.3d 653, 658
(10th Cir. 1998). The privilege is governed by common law and is to be strictly
construed. Id. The party must bear the burden as to specific questions or
documents, not by making a blanket claim. Id. (citing In re Foster, 188 F.3d
1259, 1264 (10th Cir. 1999) (emphasis added)).
The attorney-client privilege protects disclosure of communications, not
the underlying facts of the communication. Upjohn, 449 U.S. at 395. “[I]t is
important to bear in mind that the attorney-client privilege protects
communications rather than information; the privilege does not impede
disclosure of information except to the extent that the disclosure would reveal
confidential communications.” In re Grand Jury Subpoena Duces Tecum Dated
Sept. 15, 1983, 731 F.2d 1032, 1037 (2d Cir. 1984).
There is very little case law on the issue of whether nonverbal interaction
can be protected by the attorney-client privilege. In a different context, the
Wisconsin Supreme Court held that an attorney’s testimony concerning her
“opinions, perceptions, and impressions” of the defendant’s competency
violated the attorney-client privilege because it was “premised upon and
inextricably linked to confidential communications.” State v. Meeks, 263 Wis.
2d 794, 822-23, 666 N.W.2d 859, 873 (Wis. 2003). In so holding, the
Wisconsin Supreme Court noted that “[c]onfidential communications must be
11
interpreted to include both verbal and non-verbal communications in order to
preserve inviolate the integrity of the attorney-client relationship.” 263 Wis. 2d
at 823.
The attorney-client privilege is not as broad as the work product
privilege, as it only covers confidential communications between attorney and
client, whereas the work product privilege is not limited to communications.
See In re Sealed Case, 676 F.2d 793, 809 (D.C. Cir. 1982). Therefore, the
burden is on the client of the FPD, or other person asserting a privilege, to
prove that the CCA video contains communications between client and attorney
that are subject to the privilege and were not otherwise waived. Based upon
testimony presented at the August 9, 2016 hearing, the government
understands the videos at issue do not contain audio and therefore would only
constitute privileged communication if the client and attorney engaged in
protected non-verbal communication. Even then, the party asserting the
privilege must show that the communication is covered under the privilege.
(See Merida, 2016 WL 7341867 at *5, also United States v. Jenkins, 178 F.3d
1287 (4th Cir. 1999) (holding that, although audio and visual recording of
attorney-client confidential conversations was improper, it did not
automatically violate the defendant’s Sixth Amendment right absent showing of
prejudice).)
Thus, before the Special Master could find any of the videos to be
privileged, he or she would have to determine whether the video reveals a
confidential communication, and, if so, whether the defendant suffered any
12
prejudice. Given that no prosecutor or agent has viewed the videos, it would be
extremely difficult to find actual prejudice.
B. Non-Communications
Not all communications between and attorney and client are privileged.
For instance, in United States v. Smith, the Eastern District of Virginia found
that defense counsel’s showing of a video to a defendant of a controlled buy,
where the informant was subsequently murdered and the defendant charged
with the murder, was not a “communication” covered by privilege. 2008 WL
3890531, *2 (E.D. Va. Aug. 21, 2008) (unpublished). The government was
permitted to call defense counsel at trial to testify that he showed his client the
video.
Similarly, the Tenth Circuit has held that no privilege applies where an
attorney passes on information to a client that the attorney obtained someplace
else. In re Grand Jury Proceedings, 616 F.3d 1172 (10th Cir. 2010). In re
Grand Jury Proceedings involved a grand jury subpoena issued to two attorneys
seeking their testimony. The attorneys sought to quash the subpoena to keep
the government from asking them questions concerning information the
attorney received from the government then communicated to the client. The
Tenth Circuit held, “[t]hese questions thus requested ‘conduit’ information-whether a third party’s statement was passed along by the attorney to the
client. Where questions only request information regarding communications
where the attorney was acting as a ‘conduit’ for non-confidential information,
the client may not invoke the attorney-client privilege.” Id. at 1183.
13
These cases illustrate that the analysis is highly fact-driven and that,
even if the CCA video in question were to show a defense attorney showing a
document to a client, that visual depiction is not necessarily a communication
that is covered by the privilege.
C. The cases cited by the FPD are distinguishable
The FPD cites a number of cases in support of the argument that the
government infringed the attorney-client privilege. However, because the
government did not direct CCA to make the recordings, because the recordings
are visual only, because (perhaps, most importantly) no employee of the U.S.
Attorney’s Office or law enforcement officer has reviewed any video recording of
an attorney meeting with a client, and because the meetings may not have
been privileged due to what was recorded or because of a waiver, the cases
cited by the FPD are distinguishable from the instant facts.
In Shillinger v. Haworth, 70 F.3d 1132 (10th Cir. 1995), a deputy sheriff
was physically present in the room while defense counsel met with his client.
Defense counsel paid the deputy sheriff’s overtime wages for his services, and
allegedly instructed the deputy sheriff to consider himself an employee of
defense counsel during the time of the trial preparation. The deputy sheriff
subsequently informed the prosecutor of the contents of communications
between the defendant and his attorney, including a pretrial session during
which counsel and defendant discussed the particulars of the defendant’s
anticipated testimony.
14
The Tenth Circuit held that where a prosecutor intentionally intrudes
into the attorney client-relationship without a countervailing government
interest, such an intrusion will constitute a per se violation of the Sixth
Amendment. The Tenth Circuit stated:
This is not a case in which the state’s interest in effective law
enforcement is at issue. Rather, this is a case in which the
prosecutor, by his own admission, proceeded for the purpose
of determining the substance of [defendant’s] conversations
with his attorney, and attorney-client communications were
actually disclosed. This sort of purposeful intrusion on the
attorney-client relationship strikes at the center of the
protections afforded by the Sixth Amendment and made
applicable to the states through the Fourteenth Amendment.
Shillinger, 70 F.3d at 1141.
Here, it was CCA that independently made the visual recordings. No
prosecutor or law enforcement officer asked CCA to record the attorney-client
meetings, and no prosecutor or law enforcement officer has reviewed any visual
recording of any attorney-client meeting. Further, the government did not
intend to obtain the recordings of attorney-client meetings when issuing the
subpoena to CCA. There was no intentional intrusion.
The FPD also relies on Case v. Andrews, 226 Kan. 786 (Kan. 1978), was
before the Kansas Supreme Court on a habeas corpus petition. The Kansas
Supreme Court entered a ruling directing a sheriff to “permit attorneys
consulting clients held in the county jail to place their coats over the television
camera lens during such a conference.” Id. at 791. However, the state did not
present justification or explanation for not allowing defense counsel to cover
the camera lens. “The respondent has offered us no sufficient justification for
15
the denial of the request. The respondent has made no showing that the
practice of denying such requests furthers any substantial governmental
interest in security, order, or rehabilitation.” Id. at 790.
In State v. Sherwood, 174 Vt. 27 (Vt. 2002) the Vermont Supreme Court
affirmed a conviction where the state recorded, both audibly and visually, a
telephone conversation between the defendant and counsel, unbeknownst to
the defendant. The Vermont Court affirmed the conviction, finding no
prejudice because the state did not use the recordings against the defendant.
The Vermont court did acknowledge that “[a]bsolute privacy is not required so
that the police may address any security concerns arising from the interaction
with the defendant.” Id. at 30 (citation omitted).
In Moore v. Janing, 427 F.Supp. 567, (D. Neb. 1976), the District of
Nebraska court dealt with conditions at an interim jail where there was no
room for attorney-client visits and a government agent was present to
eavesdrop or monitor telephone conversations between attorney and client.
The Court ordered the state to submit a plan under which private facilities for
visitation would be available. Here, because it appears that the CCA recordings
were visual only, and because no person on the prosecution team has viewed
any attorney-client communication, the facts are distinguished.
Mastrian v. McManus, 554 F.2d 813, 820-21 (8th Cir. 1977), involved a
claim in a habeas petition that the claimant’s Sixth Amendment rights were
violated when his conversations with counsel were monitored by another
inmate. The Eighth Circuit acknowledged, “that an accused does not enjoy the
16
effective aid of counsel if he is denied the right of private consultation.” The
Circuit also held, “Evidence that a party monitored the accused’s conversations
with his attorney does not necessarily establish a Sixth Amendment violation.
Rather, the accused must show, in addition, that the substance of the
overheard conversation was of some benefit to enforcement officials. Absent
this proof, a monitoring allegation must be denied.” Id. at 821. Here, the
government has not monitored any protected attorney-client communications,
let alone benefitted from them.
In State v. Walker, 804 N.W.2d 284 (Iowa 2011), and People v. Dehmer,
931 P.2d 460 (Colo. App. 1996), the Iowa and Colorado state courts each
considered a statute that specifically granted an arrestee’s right to “see and
consult confidentially” with his attorney “alone and in private” (Walker, 804
N.W.2d at 294, quoting an Iowa statute) and “see or consult, alone and in
private at the place of custody.” (Dehmer, 931 P.2d at 463 (quoting a Colorado
statute)). No similar federal statute has been identified.
United States v. DiDomenico, 78 F.3d 294, 299 (7th Cir. 2004), involved
someone (an investigation was inconclusive on determining whom was
responsible) making an audio tape recording of a defendant and his attorney,
which is clearly not the situation in this case.
In Al Oday v. United States, 346 F.Supp.2d 1 (D.D.C. 2004), the District
of Columbia considered the government’s request, for reasons of national
security, to conduct real-time monitoring of meetings between habeas
petitioners who were detained at Guantanamo Bay Naval Base following the
17
September 11, 2001 terrorist attacks. There, the government sought to
monitor, visually and audibly, meetings between counsel and client, review
attorney’s notes taken during those meetings, and review legal mail between
them. The Court found that it had established a framework to protect both the
government’s national security interest while simultaneously protecting the
client’s Sixth Amendment rights, and therefore denied the government’s
request.
The facts of this case distinguish this matter from the cases cited by the
FPD. First, as noted earlier, the government did not ask CCA to record the
attorney client meetings. Rather, CCA made any visual recording as part of its
internal policy. Second, there is no indication that any meeting between an
attorney and client was audibly recorded. Third, no prosecutor or investigative
agent has viewed the video recordings from the attorney-client rooms. Fourth,
the government did not intend to obtain the video recordings in response to the
issued subpoena. Fifth, the government does not desire to view the video
recording.
Therefore, in an effort to not unnecessarily expend court resources, the
Government suggests the solution described below.
II. The Special Master should be ordered to excise any video recordings of
attorney-client rooms and retain the videos in the unlikely case they later
become potentially exculpatory evidence or subsequent review is
required.
A. Role of Special Master
As mentioned during the prior hearings, the parties agree that
appointment of a Special Master may aid the Court with this pending issue
18
regarding the video recordings of attorney meeting rooms at CCA. Federal Rule
of Civil Procedure 53 explains the role of Special Masters.
(a) Appointment.
(1) Scope. Unless a statute provides otherwise, a court may
appoint a master only to:
(A) perform duties consented to by the parties;
(B) hold trial proceedings and make or recommend
findings of fact on issues to be decided without a jury
if appointment is warranted by:
(i) some exceptional condition; or
(ii) the need to perform an accounting or resolve
a difficult computation of damages; or
(C) address pretrial and posttrial matters that cannot
be effectively and timely addressed by an available
district judge or magistrate judge of the district.
(2) Disqualification. A master must not have a relationship to
the parties, attorneys, action, or court that would require
disqualification of a judge under 28 U.S.C. § 455, unless the
parties, with the court’s approval, consent to the
appointment after the master discloses any potential
grounds for disqualification.
(3) Possible Expense or Delay. In appointing a master, the
court must consider the fairness of imposing the likely
expenses on the parties and must protect against
unreasonable expense or delay.
(b) Order Appointing a Master.
(1) Notice. Before appointing a master, the court must give
the parties notice and an opportunity to be heard. Any party
may suggest candidates for appointment.
(2) Contents. The appointing order must direct the master to
proceed with all reasonable diligence and must state:
19
(A) the master’s duties, including any investigation or
enforcement duties, and any limits on the master’s
authority under Rule 53(c);
(B) the circumstances, if any, in which the master may
communicate ex parte with the court or a party;
(C) the nature of the materials to be preserved and
filed as the record of the master’s activities;
(D) the time limits, method of filing the record, other
procedures, and standards for reviewing the master’s
orders, findings, and recommendations; and
(E) the basis, terms, and procedure for fixing the
master’s compensation under Rule 53(g).
(3) Issuing. The court may issue the order only after:
(A) the master files an affidavit disclosing whether
there is any ground for disqualification under 28
U.S.C. § 455; and
(B) if a ground is disclosed, the parties, with the
court’s approval, waive the disqualification.
(4) Amending. The order may be amended at any time after
notice to the parties and an opportunity to be heard.
(c) Master’s Authority.
(1) In General. Unless the appointing order directs
otherwise, a master may:
(A) regulate all proceedings;
(B) take all appropriate measures to perform the
assigned duties fairly and efficiently; and
(C) if conducting an evidentiary hearing, exercise the
appointing court’s power to compel, take, and record
evidence.
(2) Sanctions. The master may by order impose on a party
any noncontempt sanction provided by Rule 37 or 45, and
20
may recommend a contempt sanction against a party and
sanctions against a nonparty.
(d) Master’s Orders. A master who issues an order must file it and
promptly serve a copy on each party. The clerk must enter the
order on the docket.
(e) Master’s Reports. A master must report to the court as required
by the appointing order. The master must file the report and
promptly serve a copy on each party, unless the court orders
otherwise.
(f) Action on the Master’s Order, Report, or Recommendations.
(1) Opportunity for a Hearing; Action in General. In acting
on a master’s order, report, or recommendations, the court
must give the parties notice and an opportunity to be heard;
may receive evidence; and may adopt or affirm, modify,
wholly or partly reject or reverse, or resubmit to the master
with instructions.
(2) Time to Object or Move to Adopt or Modify. A party may
file objections to--or a motion to adopt or modify--the
master’s order, report, or recommendations no later than 21
days after a copy is served, unless the court sets a different
time.
(3) Reviewing Factual Findings. The court must decide de
novo all objections to findings of fact made or recommended
by a master, unless the parties, with the court's approval,
stipulate that:
(A) the findings will be reviewed for clear error; or
(B) the findings of a master appointed under Rule
53(a)(1)(A) or (C) will be final.
(4) Reviewing Legal Conclusions. The court must decide de
novo all objections to conclusions of law made or
recommended by a master.
(5) Reviewing Procedural Matters. Unless the appointing
order establishes a different standard of review, the court
may set aside a master’s ruling on a procedural matter only
for an abuse of discretion.
21
(g) Compensation.
(1) Fixing Compensation. Before or after judgment, the court
must fix the master’s compensation on the basis and terms
stated in the appointing order, but the court may set a new
basis and terms after giving notice and an opportunity to be
heard.
(2) Payment. The compensation must be paid either:
(A) by a party or parties; or
(B) from a fund or subject matter of the action within
the court’s control.
(3) Allocating Payment. The court must allocate payment
among the parties after considering the nature and amount
of the controversy, the parties’ means, and the extent to
which any party is more responsible than other parties for
the reference to a master. An interim allocation may be
amended to reflect a decision on the merits.
(h) Appointing a Magistrate Judge. A magistrate judge is subject to
this rule only when the order referring a matter to the magistrate
judge states that the reference is made under this rule.
Fed. R. Civ. P. 53.
The use of a Special Master is to aid the Court in performance of
specific judicial duties and not to displace or replace the Court. See La
Buy v. Howes Leather Company, 352 U.S. 249, reh. denied, 352 U.S.
1019 (1957). The decision to appoint a Special Master is within the
discretion of the Court. See Bradshaw v. Thompson, 454 F.2d 75 (6th
Cir. 1972); Wilver v. Fisher, 387 F.2d 66 (10th Cir. 1967). But referring
fundamental issues of liability to a Special Master over the objection of a
party is impermissible. See Stauble v. Warrob, Inc., 977 F.2d 690 (1st
Cir. 1992). Overall, the reference of issues to a Special Master should be
22
the exception. See Bartlett-Collins Co. v. Surinam Nav. Co., 381 F.2d 546
(10th Cir. 1967).
As noted by the FPD, the use of a Special Master is to aid the
Court in managing its litigation. (Defense Memorandum in Support of
Motion for Special Master, doc. 106 at 2.) The FPD characterizes the
potential litigation to be in multiple cases throughout the District. (Id. at
5.) However, that claim seems based on the mistaken belief that this
office engaged in Sixth Amendment violations of the defendants in this
case. As noted above, there is no evidence that privileged
communications between attorneys and clients were video recorded that
would form the initial premise of this mistaken belief. Furthermore,
assuming there were any such privileged communications video
recorded, no government attorney or agent have reviewed any such video,
so there has been no violation of the privilege. Additionally, the FPD
provided no authority that an investigation of prosecutors should be
pursued through the use of a Special Master.
Because no prosecutor or agent has reviewed any of the video
recordings from the attorney meeting rooms, there is no “investigation”
needed by the FPD or a Special Master. (See id. at 5.) Therefore, the
scope of the Special Master envisioned by the FPD exceeds what is
necessary to resolve the critical issue in this case. (See Proposed Order
Appointing Special Master, doc. 106-1 at 204.) Of note, the FPD
separately identifies the scope of the Special Master with respect to this
23
specific case on page 4 of its proposed order, which makes it appear as
though this case is being utilized for purposes other than the issues that
are critical to the defendants in this case. 4
Because there has been no Sixth Amendment violation by
prosecutors or agents in this case, the critical issue to be resolved is how
the defendants in this case are provided the discovery needed to
represent themselves without them receiving potential attorney-client
privileged communications that may be contained on the video
recordings from the attorney meeting rooms. The past policies and
practices at CCA or other detention facilities used by the United States
Marshals Service are not relevant to the critical issue for these
defendants. Rather, the laundry list of the scope of proposed duties by
the FPD is akin to a “fishing expedition” without a good-faith basis to
believe prosecutors ever sought such potential attorney-client privileged
communications.
B. Task of Special Master
As stated above, neither any prosecutor nor agent has viewed any of the
CCA video from any of the attorney-client interview rooms. However, based
upon the evidence known to the government at this point in the investigation
(that no introduction of contraband or other illegal conduct occurred in the
attorney-client interview rooms, whether by inmates, guards, or other visitors
By expanding the scope of the Special Master as proposed by the FPD, does
that not create needless issues for the defendants in this case, especially
because the FPD has a direct conflict in this case as that office would represent
several witnesses at a trial in this case.
4
24
using the room), the United States would propose to forgo review of any video
recordings from those rooms. To conserve taxpayers’ and the court’s limited
financial resources and reduce the need for the Special Master, and in
recognition of the sensitive nature of the videos, the government would agree
not to seek the return of any video recorded in the attorney-client visitation
rooms, subject to the caveats discussed below. The United States would
further agree not to seek to obtain any such video without first filing a motion
with the Court asking that the Special Master be assigned at that time to
review the requested attorney-client video for privileged communications.
The Special Master should be instructed to maintain and not destroy the
video from the attorney-client rooms for three reasons. First, as the
investigation is ongoing, there exists the possibility that the evidence could
prove to be exculpatory evidence to some defendant or target at some future
time. For instance, if allegations arise that on a certain date at a certain time
an inmate distributed contraband, the inmate might claim that at that time the
inmate was visiting an attorney. The video, therefore, might constitute
exculpatory evidence that would need to be provided to that particular
defendant.
On the other hand, at some future point in time, this on-going
investigation might reveal conduct that occurred in an attorney-client room at
a certain time. If this situation arises, the United States should be allowed to
ask the Special Master to review that particular footage to determine whether
25
any privileged attorney-client communication occurred, and if so, whether an
exception (such as the crime-fraud exception) applies.
Finally, the FPD has alleged potential Constitutional violations and
implies that sanctions may be appropriate. Unless the videos are, after proper
review and consideration of applicable law concerning privilege, determined in
law and in fact to be privileged material, there should be no further
consideration of alleged Constitutional violations. However, should defense
counsel persist in these allegations, the videos should be retained for review as
needed in helping the Court resolve such allegations.
The excising of the attorney-client rooms video by the Special Master
needs to be conducted in a manner that preserves the remainder of the video
so that the video can properly be reviewed by the parties and, if necessary,
introduced at trial or other hearing. Therefore, as discussed below, the United
States respectfully suggests that the Court retain a computer expert to assist
the Special Master in excising the attorney-client rooms video from the
remainder of the video so as to maintain the integrity of the remaining video.
III. The Special Master should be assigned a computer expert to assist in
the excising of the attorney-client room video
The government considers this role as that of a computer forensic expert,
who could image the CCA drive containing the attorney-client rooms video
without duplicating the video from those rooms onto the newly-created drives
that would be provided to the government and counsel for the defendants in
this case and counsel for other targets of this investigation. Specifically, this
26
computer forensic expert would utilize software tools to verify the image is an
exact duplicate of the data except the attorney-client rooms video.
IV. The remaining video should be returned to the United States
immediately so that it can continue its investigation.
The Court should instruct the Special Master that, after the Special
Master verifies that no attorney-client room video is contained on a particular
hard-drive, or any such video is excised, the drive should be returned to the
United States so that it can provide the video in discovery and continue its
investigation.
V. This proposal should not be construed as an acknowledgment of any
wrongdoing by the United States. 5
As discussed above, the government did not ask CCA to record the
attorney-client room and no agent or prosecutor viewed any video of an
attorney-client meeting. The United States has not violated the defendants’
Sixth Amendment rights and any suggestion to the contrary is legally and
factually incorrect. Rather, the United States’ proposal reflects an effort by the
United States to resolve this sensitive matter in a reasonable, responsible, and
expeditious manner. 6
VI. There is nothing for the Special Master to do as it relates to the
recorded telephone calls.
This caveat is necessary because the FPD’s memorandum (Doc. 106), motion
(Doc. 85) and statements in court suggests that Constitutional violations have
occurred and that sanctions may be appropriate.
6 The United States may have additional suggestions for the Special Master
once the facts are known and developed with respect to the recording of
telephone calls by CCA. The government will file a separate response to the
FPD’s motion (Doc. 105) related to the phone calls.
5
27
The government will file a response to the FPD’s motion related to the
CCA recorded telephone calls. As discussed in that response, the calls are not
privileged. Therefore, there is no need to employ a Special Master with regard
to the recorded telephone calls.
THOMAS E. BEALL
s/ Debra Barnett
Debra Barnett
1200 Epic Center
301 N. Main
Wichita, KS 67202-4812
(316) 269-6481 (telephone)
(316) 268-6484 (facsimile)
/s/Erin S. Tomasic
Erin S. Tomasic
Special Assistant U.S. Attorney
District of Kansas
500 State Avenue, Suite 360
Kansas City, Kansas 66101
(913) 551-6730 (telephone)
(913) 551-6541 (facsimile)
D. Kan. No. 78430
s/ D. Christopher Oakley
D. Christopher Oakley, 19248
500 State Avenue; Suite 360
Telephone: 913-551-6730
Facsimile: 913-551-6541
E-mail: chris.oakley@usdoj.gov
Attorneys for Plaintiff
Certificate of Service
28
I hereby certify that on the 23rd day of August, 2016, the foregoing was
electronically filed with the clerk of the court by using the CM/ECF system
which will send a notice of electronic filing to all counsel.
29
Plaintiff,
v.
LORENZO BLACK,
KARL CARTER,
ANTHON AIONO
ALICIA TACKETT,
CATHERINE ROWLETTE,
and
DAVID BISHOP,
Defendants.
)
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No. 16-20032-01-06-JAR
GOVERNMENT’S RESPONSE TO THE MOTION TO IMPOUND
ADDITIONAL GOVERNMENT EVIDENCE
The United States opposes the Motion for Court to Impound Additional
Government Evidence filed on August 15, 2016 by the Federal Public Defender
Office (FPD). (Doc. 105.) In the motion, the FPD argues the recorded inmate
phone calls between an inmate and his attorney are privileged, thus any
dissemination or review of those calls violates the Sixth Amendment. Because the
inmates and attorneys knew their conversations were being recorded, any privilege
has been waived. Accordingly, the FPD’s motion should be denied.
I. Procedural Background
As part of an investigation into widespread drug and contraband trafficking
inside the Corrections Corporation of America (CCA) facility in Leavenworth,
Kansas, agents obtained recorded telephone calls made by approximately forty
inmates housed at CCA.
Counsel for the government was aware of CCA’s
procedure that privatizes attorney-client calls prior to requesting the recorded
inmate calls in this case. Counsel for the government did not intend to receive
attorney-client calls as part of this investigation and prosecution. The government
does not intend to review or use any attorney-client calls as part of this
investigation or prosecution. The United States Attorney’s Office produced the
recorded CCA calls to defense counsel as part of discovery in this case.
On August 16, 2016, the parties and interested parties convened for a
hearing regarding the appointment of a Special Master to review video recordings
containing potential attorney-client communications. At the hearing, the FPD
presented evidence and argument regarding the Motion to Impound recorded
inmate phone calls. The FPD provided a chart showing that some of the recorded
inmate calls obtained from CCA appear to contained communications between the
inmate and his respective attorney. Because the FPD filed the present motion the
day prior to the hearing, the government was not in a position to respond to the
motion at the hearing.
2
II. Background
According to the CCA Inmate Handbook, outgoing telephone calls are made
collect or by using a phone card. (See Attach. A, at 10.) Inmates can purchase
telephone cards from the commissary in the facility, which may be used to place
outgoing calls. Calls are made from a bank of phones inside the inmate pods. The
Inmate Handbook notifies inmates that telephones are subject to monitoring. The
Handbook also explains,
Your attorney may request of our facility that calls to their office not
be recorded to ensure Attorney/Client privilege. They may request
this by way of sending CCA/LDC a fax on their office letterhead.
This request must include contact information and signature. They
may fax it to (913)727-2231. IT IS YOUR RESPONSIBILITY TO
ENSURE THAT YOUR ATTORNEY IS AWARE OF THIS
PROCEDURE; THEIR TELEPHONE CALLS ARE SUBJECT
TO BEING RECORDED IF THEY DO NOT REQUEST THEY
BE RESTRICTED.
(Id.) (emphasis in original.) When an inmate places an outgoing call from the
facility, each call begins with a recorded preamble that notifies both parties, “this
call is subject to recording and monitoring.”
As part of this investigation, law enforcement officers reviewing recorded
CCA calls have minimized all potential attorney-client calls they encountered. For
example, where an inmate places a call to his attorney’s office, the agents
immediately stop listening when the recipient identifies the business as a law firm.
In January 2016, an agent inadvertently listened to between ten and fifteen seconds
3
of a recorded call between an inmate and his attorney where the attorney answered
the call on his cellular phone and did not identify himself as an attorney. Counsel
for the government immediately notified the United States Attorney’s Office
professional responsibility point of contact and then notified that inmate’s attorney
that the calls from the inmate to the attorney’s cellular phone were being recorded.
Counsel for the government also explained to the inmate’s attorney that the
government did not intend to review the calls to the attorney any further, and the
government did not intend to use any portion of the calls to the attorney as part of
the investigation or litigation involving the inmate. The defense attorney explained
that he only used the recorded line for scheduling purposes.
III. Argument
The attorney-client privilege is the oldest of the privileges for confidential
communications known to the common law.” Upjohn Co. v. United States, 449
U.S. 383, 389, 101 S.Ct. 677, 66 L. Ed. 2d 584 (1981). The purpose behind the
attorney-client privilege is to preserve confidential communications between an
attorney and client. In re Grand Jury Subpoenas (United States v. Anderson), 906
F.2d 1485, 1492 (10th Cir. 1990) (emphasis added).
“A party claiming the attorney-client privilege must prove its applicability,
which is narrowly construed.” In re Foster, 188 F.3d 1259, 1264 (10th Cir. 1999).
The party asserting the privilege must identify with specificity the items believed
4
to be privileged, not by making a blanket claim. Id. The privilege “must be
strictly constructed and accepted ‘only to the very limited extent that permitting a
refusal to testify or excluding relevant evidence has a public good transcending the
normally predominant principle of utilizing all rational means for ascertaining
truth.’” Trammel v. United States, 445 U.S. 40, 50, 100 S. Ct. 906 (quoting Elkins
v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)
(Frankfurter, J., dissenting)).
Under the common law, “a critical component of the privilege ‘is whether
the communication between the client and the attorney is made in confidence of
the relationship and under circumstances from which it may reasonably be
assumed that the communication will remain in confidence.’”
In re Qwest
Communications International, Inc., 450 F.3d 1179, 1185 (10th Cir. 2006)
(quoting United States v. Lopez, 777 F.2d 543, 552 (10th Cir.1985)). Because
confidentiality is key to the privilege, the attorney-client privilege is waived if the
client discloses the content of the communication to a third party. Id. “Any
voluntary disclosure by the client is inconsistent with the attorney-client
relationship and waives the privilege.” United States v. Bernard, 877 F.2d 1463,
1465 (10th Cir. 1989).
Courts have overwhelmingly held that notice to an inmate informing him
that jailhouse calls are subject to recording and monitoring destroys any reasonable
5
expectation of privacy. 1 For example, in United States v. Hatcher, the Eighth
Circuit held,
[t]he presence of the prison recording device destroyed the attorneyclient privilege. Because the inmates and their lawyers were aware
that their conversations were being recorded, they could not
reasonably expect that their conversations would remain private. The
presence of the recording device was the functional equivalent of the
presence of a third party. These conversations were not privileged.
323 F.3d 666, 674 (8th Cir. 2003). Even if the inmate has no other alternative, use
of the phones to call his attorney is still implied waiver of the attorney-client
privilege. United States v. Eye, No. 05-00344-01-CRW-ODS, 2008 WL 1701089,
1
United States v. Hatcher, 323 F.3d 666, 674 (8th Cir. 2003); United States v. Lentz, 419 F.
Supp. 2d 820, 828–29 (E.D. Va. 2005) (holding that prisoners and their attorneys had no
reasonable expectation of privacy where they knew their conversations were being recorded);
United States v. Madoch, 149 F.3d 596, 602 (7th Cir. 1998) (holding that the marital
communications privilege did not apply where the wife knew that her husband was in jail in light
of the “well-known need for correctional institutions to monitor inmate conversations”); United
States v. Van Poyck, 77 F.3d 285, 290–91 (9th Cir. 1996) (finding any expectation of privacy in
outbound calls from prison is not objectively reasonable); United States v. Sababu, 891 F.2d
1308, 1329 (7th Cir. 1989) (stating that non-prisoner caller had no reasonable expectation of
privacy when speaking on prison phone in part because the Code of Federal Regulations placed
her on constructive notice that prison officials could legally monitor calls); United States v.
Harrelson, 754 F.2d 1153, 1169–70 (5th Cir. 1985) (stating that interspousal communications
privilege during prison visit were not privileged where eavesdropping could reasonably be
expected to occur); United States v. Lentz, 419 F. Supp. 2d 820, 836 (E.D. Va. 2005) (holding
attorney-client calls not privileged where each outgoing call from the prison plays a pre-recorded
message stating the call is subject to recording and monitoring); Watson v. Albin, No. 06-07767RMW, 2008 WL 2079967, at *5 (N.D. Cal. May 12, 2008) (unpublished) (finding attorney-client
privilege waived where inmate placed calls from jail on a monitored phone line); United States
v. Eye, No. 05-00344-CRW, 20080WL 1701089, at *13 (W.D. Mo. Apr. 9, 2008) (finding
defendant waived his attorney-client privilege by calling his attorney when he well knew that the
calls could be monitored and recorded by CCA). But see United States v. Walker, 2011 WL
2728460, at *2 (M.D. Ala. July 13, 2011) (finding that recorded attorney-client conversations
were not privileged where the preamble to each recorded call stated, “[t]his call is also subject to
being recorded or monitored, except for privileged communication between an attorney and
client”).
6
at *12 (W.D. Mo. Apr. 9, 2008) (citing United States v. Horr, 963 F .2d 112 (8th
Cir. 1992)).
In Eye, the defendant moved to dismiss the indictment on the grounds that
calls from the defendant to his attorney were recorded by CCA and distributed to
the FBI, the United States Attorney’s Office, and a co-defendant’s attorney. The
defendant was held at the CCA facility in Leavenworth, Kansas. Noting that the
defendant was informed upon arriving at CCA that all of his calls were subject to
monitoring and recording, the Court found “[w]hen prison inmates have been
informed that telephone calls are monitored, consent to monitoring is implied by
the inmate’s use of the prison’s telephones.” Id. at *12 (citing United States v. Van
Poyck, 77 F.3d 285, 292 (9th Cir. 1996) (any expectation of privacy in outbound
calls from prison is not objectively reasonable)). Because the inmate knew that the
calls could be recorded and monitored by CCA, Eye held the defendant had waived
his attorney-client privilege by calling his attorney. Id. at *13.
Here, every inmate call initiated from the bank of phones within the pods
begins with a recorded preamble notifying the parties that the call is subject to
recording and monitoring. Each inmate is notified in the Inmate Handbook that the
phone calls are monitored. By continuing to contact their attorneys on recorded
lines, these inmates had no reasonable expectation of privacy and thus waived any
privilege to the content of those calls.
7
Accordingly, the Federal Public Defender Office’s Motion to Impound
Additional Evidence (Doc. 105) should be denied. Further, because the recorded
inmate calls are not privileged, the calls should not be subject to review by a
Special Master.
THOMAS E. BEALL
District of Kansas
D. Christopher Oakley #19248
District of Kansas
(913) 551-6730 (telephone)
(913) 551-6541 (facsimile)
E-mail: Chris.Oakley@usdoj.gov
ELECTRONICALLY FILED
Attorney for Plaintiff
s/ Erin S. Tomasic
Erin S. Tomasic, D. Kan.# 78430
Special Assistant United States Attorney
District of Kansas
(913) 551-6730 (telephone)
(913) 551-6541 (facsimile)
E-mail: Erin.Tomasic@usdoj.gov
ELECTRONICALLY FILED
Attorney for Plaintiff
8
with the clerk of the court by using the CM/ECF system, which will send a notice
of electronic filing to all attorneys of record.
s/Erin S. Tomasic
ERIN S. TOMASIC
9
Plaintiff,
v.
LORENZO BLACK,
KARI CARTER,
ANTHON AIONO,
ALICIA TACKETT,
CATHERINE ROWLETTE,
DAVID BISHOP,
Defendant.
REPLY TO GOVERNMENT’S RECOMMENDATION RELATED TO
SCOPE OF SPECIAL MASTER (D.E. 120) AND GOVERNMENT’S
RESPONSE TO MOTION TO IMPOUND EVIDENCE (D.E. 121)
Our reply proceeds in four parts. First, we review the state of the
evidence. Second, we respond to the government’s effort to enfeeble the
Special Master’s authority. Third, we reply to the government’s defense of its
decision to gather and disseminate recorded attorney-client phone calls.
Fourth, we discuss other requested relief.
1. The state of the evidence.
Much has transpired in a short time. The defense takes this
opportunity to explain the relevance and interplay of the evidence before the
Court, with citations to the record. Additional proposed defense exhibits,
which include affidavits from ten defense attorneys, are attached for the
Court’s reference. The proposed exhibits follow the sequential numbering of
the admitted exhibits. The transcript of the August 9, 2016, hearing will be
referred to as Black I Tr. and the transcript of the August 16, 2016, hearing
will be referred to as Black II Tr.
Because the defense proposes that the Special Master inquiry extend
beyond the government’s conduct in this case, we have incorporated relevant
record facts from United States v. Dertinger, 14-20067-06, United States v.
Huff, 14-20067-09, and United States v. Benimon, 12-20115. The relevance of
these pending cases is explained below.
1.1 The chronology of events.
***
April 8, 2016
The government executes a search warrant at CCA.1
1
Complaint, Doc. 1, United States v. Black, et al., 16-20032 at 25.
2
April 12, 2016
The United States Attorney’s Office serves a grand-jury subpoena on
CCA for “all video footage” recordings from July of 2014 to April of 2016.2
April 13, 2016
Criminal Coordinator Assistant United States Attorney Kim Flannigan
files a motion for an order to show cause in United States v. Huff.3 The
motion claims that the government gave Ms. Huff’s attorney discovery
documents, covered by a protective order, and that the documents had Bates
numbers 011820-011831 and 011836-011852.4 The motion notes that these
documents were found in Ms. Huff’s cell when the search warrant was
executed at CCA on April 8, 2016.5 The motion then alleges that Ms. Huff’s
attorney must have given her the documents.6
April 26, 2016
Assistant United States Attorney Erin Tomasic contacts the defense
attorneys in United States v. Black to advise that CCA surveillance footage
spans 18 terabytes, and that they will need to provide hard drives if they
want their own copies of that footage.7 AUSA Tomasic also tells the defense
Ex. 438.
3 Case No. 14-20067-CM, D.E. 348, Apr. 4, 2016.
4 Id. at 2.
5 Id. at 3.
6 Id. at 4.
7 Ex. 447 at 6.
2
3
attorneys that the surveillance footage would be available to review in the
United States Attorney’s Office.8
May 16, 2016
AUSAs Flannigan and Tomasic appear before Judge Murguia in United
States v. Huff.9 AUSA Tomasic tells the Court that the government knows
that Ms. Huff “has met with [her attorney] regarding his ineffective
assistance of counsel.”10 AUSA Tomasic goes on to tell the Court what was
discussed at this meeting between Ms. Huff and her attorney: “She claims
specifically that he failed to notify her of a plea offer made by the government
in a timely manner, and that he then apologized for failing to meet [a
deadline] . . . Miss Huff then stated that [her attorney] hated the
government just as much as her, so she wanted to keep him.”11 Ms. Huff is
detained at CCA.
May 17, 2016
CCA turns over its surveillance footage from its Leavenworth facility to
the government.12
Id.
9 Transcript of Hearing, Case No. 14-20067-CM, May 16, 2016, attached as
Proposed Defense Ex. 450 at 1.
10 Id. at 10 (emphasis added).
11 Id. at 10.
12 Id. at 5; Letter, D.E. 124, United States v. Black.
8
4
June 10, 2016
The USAO prepares an index of the video cameras from which CCA
video footage was recorded.13 The index lists “Low Custody Attorney,”
“Attorney Room”, “Attorney Room 4”, “Attorney Room 5”, “Attorney Room 6”,
“Attorney Room 7”, “Attorney Room 8”, and “Attorney Room 9.”14
July 21, 2016
During a discovery hearing in United States v. Black, the Court asks
the government whether there are cameras in the attorney-client rooms at
CCA. AUSA Tomasic replies: “Yes, except that there is no — there are no
audio in attorney/client unless someone at CCA, an employee, took it upon
themselves to turn on the audio. But I don’t believe it’s recorded. It’s just that
it would allow a particular CCA employee to listen in without recording if —
if the employee believes something was afoot that he needed to be aware of.”
AUSA Tomasic does not specify whether the cameras capture video.15 AUSA
Tomasic later identifies the source of this information as a “cooperating
inmate” housed at CCA and his attorney.16 She does not identify the inmate
or the date that the USAO received this information.
Ex. 447 at 5.
Ex. 439, 440.
15 Gov’t Rec. at 7-8, D.E. 120 at 7-8 (emphasis added).
16 Id. at 8.
13
14
5
At that same hearing, AUSA Tomasic addresses the index of the video
recordings. She explains that “[w]e were not provided an index from
CCA and the U.S. Attorney’s Office worked with the marshals service and
CCA and created an index, which is available to defense counsel and I believe
is being provided apart from the surveillance footage to defense counsel. So
we — we actually created the index for defense counsel . . .”17 In contrast, the
government told the Court that “actually the index itself was provided by
CCA.”18
June 29, 2016
In an email to counsel, AUSA Tomasic relates that “our office is in the
process of distributing CCA calls for approximately 50 inmates.”19
July 25, 2016
The government gives defense counsel in Black the camera index it
created on June 10, 2016.20
Ex. 447 at 5.
18 Black I Tr. at 113, attached as Proposed Defense Exhibit 462; see also Ex. 446
(“We coordinated with CCA to provide a chart showing what is depicted on each
camera angle (i.e., which pod, hall-way, etc.).”)
19 Ex. 446 at 2 (“On the 1 TB drives you each provided, our office is in the process of
distributing CCA calls for approximately 50 inmates.”)
20 Ex. 446 at 1.
17
6
August 1, 2016
AUSA Flannigan sends an email to defense attorney Jacquelyn
Rokusek, with a copy to AUSA Tomasic, asking to meet with Ms. Rokusek.
The email is sent to an incorrect email address and Ms. Rokusek never
receives it.21
August 2, 2016
AUSA Tomasic calls Ms. Rokusek and tells her that AUSA Tomasic and
AUSA Flannigan have been trying to reach Ms. Rokusek.22 AUSA Tomasic
tells Ms. Rokusek that she needs to meet with AUSA Tomasic and AUSA
Flanigan immediately at the United States Attorney’s Office, but refuses to
divulge the reason for the meeting over the phone.23
Later that afternoon, Ms. Rokusek meets with AUSA Tomasic and
AUSA Flannigan at the USAO.24 The two inform Ms. Rokusek that the
meeting’s purpose is to convince her to withdraw from a case because the
USAO contends that Ms. Rokusek has a conflict.25 Specifically, a cooperating
Black I Tr. at 42..
Black I Tr. at 32.
23 Id. at 33.
24 Id. at 33.
25 Id. This was the third time the government had asserted a conflict of interest
against Ms. Rokusek. It previously raised an issue arising from the employment of
her husband during a hearing on Feb. 9, 2016 (D.E. 283), and another claim of
conflict was raised at the hearing on a motion to quash on Feb. 17, 2016 (D.E. 288).
21
22
7
witnesses has informed the USAO that Ms. Rokusek passed a protected
proffer statement to a client during a meeting at CCA and that Ms. Rokusek’s
client had shared that information with other people at CCA.26 They tell Ms.
Rokusek that they intend to pursue an obstruction charge against her client,
which would cause Ms. Rokusek to have a conflict necessitating her
withdrawal.27 AUSA Tomasic and AUSA Flannigan direct Ms. Rokusek to
contact the Kansas Disciplinary Administrator, and give her a one-week
deadline to voluntarily withdraw.28
As the meeting wraps up, AUSA Flannigan tells Ms. Rokusek that a
law enforcement officer is reviewing the video recordings of meetings between
attorneys and clients at CCA.29 The purpose of this review, AUSA Flannigan
explains, is to determine whether Ms. Rokusek had given a specific document
to her client when meeting with him at CCA.30
Transcripts of these hearings have not been prepared but the Movant can request
transcripts, if it would be helpful to the Court in determining this matter.
26 Id. at 34.
27 Id. at 34.
28 Id.
29 Id. at 35.
30 Id.
8
August 3, 2016
Ms. Rokusek sends an email to AUSA Flannigan and AUSA Tomasic.31
Ms. Rokusek writes: “You mentioned that you were reviewing video of my
visits with [my client] at CCA. I would like an opportunity to review the same
video footage before making a final decision [on whether to withdraw].”32
AUSA Tomasic responds, telling Ms. Rokusek that the video is available for
her to review at the United States Attorney’s Office whenever she wants.33
AUSA Flannigan also responds, urging Ms. Rokusek to view the video soon.34
The Federal Public Defender’s Office sends a written inquiry to Debra
Barnett, the USAO Criminal Chief, advising that the Defender’s office has
learned that CCA records attorney-client meetings and that the Defender’s
office will file motions seeking appropriate relief.35
Ex. 441.
Id.
33 Id.
34 Id.
35 Ex. 453.
31
32
9
August 4, 2016
USAO Criminal Chief Debra Barnett responds to the Defender’s
request by passing along an answer from the District of Kansas U.S. Marshal
Service, which it had obtained from CCA: “There is no recording function
associated with th[ese] camera[s] . . . To be more clear, there is no way to
record visual (sic) or audio with th[ese] camera[s].”36
Ms. Barnett also sends an email to other prosecutors in the office:
“[I]nformation is being circulated amongst the bar that CCA is recording
privileged meetings between defendants and attorneys. I was asked about
this earlier today, and made contact with the U.S. Marshals, who contacted
CCA’s new warden, who provided the following information . . . There is no
recording function associated with the camera [in the CCA attorney-client
visitation room] . . . To be more clear, there is no way to record visual or
audio with this camera . . . .”37
There is no evidence in the record that either AUSA Tomasic or AUSA
Flannigan ever responded to correct the information in this email.
36
37
Ex. 443.
Id.
10
Ms. Rokusek asks to view the video recordings of her attorney-client
meetings but is told by AUSA Tomasic that the IT person who can set up the
viewing is unavailable.38
That evening, the United States Marshal for the Western District of
Missouri, which also houses pretrial detainees at CCA, sends an email to the
WDMo Defender’s office confirming that CCA does record meetings in its
attorney-client visitation rooms, directly contradicting the information
provided by the Kansas USAO, the Kansas Marshal, and CCA.39 That email
is then forwarded to the Defender in Kansas.40
August 5, 2016
At about 1:30 p.m.: in United States v. Wright, an Assistant United
States Attorney unassociated with the Black case relies on Ms. Barnett’s
August 4 email to tell Magistrate Judge James that CCA does not record
meetings in its attorney-client visitation rooms.41
At about 2:15 p.m.: Ms. Rokusek arrives at the USAO to review CCA’s
recordings of her meetings with her client. Her review lasts roughly 45
minutes.42
Black I Tr.at 37.
Ex. 444.
40 Id.
41 Proposed Defense Exhibit 454, at 6-7 (excerpts of hearing transcript).
42 Black I Tr. at 37.
38
39
11
At 2:57 p.m.: While Ms. Rokusek is still watching video of her attorneyclient meetings in the KCK USAO, AUSA Tomasic sends an email to the
Court and defense counsel in Black. “[D]efense counsel has expressed
concerns that the government may be in possession of video footage of
attorney/client interactions at CCA, and that footage may contain privileged
communications.”43 AUSA Tomasic repeats the information received from
CCA’s warden: “There is no recording function associated with the camera [in
the CCA attorney-client visitation room] . . . To be more clear, there is no way
to record visual or audio with this camera . . . .”44
Regarding the footage that the United States Attorney’s Office already
possessed, AUSA Tomasic represents to the Court: “[T]he government is not
certain at this point whether any footage turned over by CCA . . . contains
footage of attorney/client rooms . . .”45
AUSA Tomasic tells the Court that defense counsel’s concerns were
with “CCA’s former surveillance system, which was in place prior to the new
Warden’s tenure, may have captured video and/or audio recordings in
attorney/client rooms.”46
Ex. 445.
Id.
45 Id. at 3 (emphasis added).
46 Id.
43
44
12
At 3:43 p.m.: the defense receives an email from DUSM Craig Beam,
who reports that he spoke directly with the Warden of CCA, Linda Thomas,
and “[s]he advised me that the video from the camera in the attorney/inmate
visitation rooms is not recorded, nor do they have audio capability.”47
August 9, 2016
The Court holds an emergency hearing. The United States Attorney’s
Office confesses that it has recordings of attorney-client meetings from CCA
and turns them over to the Court.48
August 15, 2016
The Federal Defender files a motion to impound recorded phone calls
between detainees at CCA and their attorneys. The motion alleges that the
government seized the recorded phone calls of approximately 50 detainees,
and that the seized calls included communications between attorneys and
their clients.49
August 16, 2016
The USAO informs the Court that CCA continued to video record
attorney-client meetings from May 2016 until the Court’s order took effect on
Proposed Defense Exhibit 458, attached.
Black I Tr. at 26.
49 D.E. 105 at 2.
47
48
13
August 9, 2016,50 affirming that the video recording was not just a function of
“CCA’s former surveillance system.”51
Michael Jackson, counsel for Cathy Rowlette, informs the Court that
his partial review of the Black discovery provided by the government has
disclosed 74 recorded phone calls between detainees at CCA and their
counsel.52 Some of these phone calls, such as Ms. Rokusek’s 2013 phone calls
with a client in a Topeka capital case, have no apparent connections to the
investigation in this case.53
August 18, 2016
In an email to the Court, Assistant United States Attorney Christopher
Oakley discloses that the recorded phone calls, which included attorney-client
calls, were distributed to John Jenab, David J. Guastello, Cynthia M. Dodge,
Jason P. Hoffman, Michael M. Jackson, the Kansas Bureau of Investigation,
the United States Secret Service, the United States Marshals Service, and
the Internal Revenue Service.54
Black II Tr. at 26, attached as Proposed Defense Exhibit 463.
Id. at 11-12.
52 Id. 18-19.
53 Ex. 449.
54 Attached Proposed Defense Exhibit 455.
50
51
14
August 22, 2016
AUSA Tomasic appears before Judge Murguia in United States v. Huff.
Ms. Huff asks for confidential visitation and return of property.55 AUSA
Tomasic tells Judge Murguia: “The government was uncertain up until Jackie
Rokusek came in to view inside the U.S. Attorney’s Office whether we even
had video recordings of attorney/client meetings . . .”56 Though Ms. Huff
never asked for the motion to be transferred to this Court, AUSA Tomasic
tells Judge Murguia that United States Attorney’s Office “would like this
court to hear that matter, as the Black discovery was distributed to Ms. Huff
in this case. It does seem as though a number of defendants are attempting to
engage in forum shopping and have Judge Robinson hear all of these motions
. . . [so] this Court should hear those motions, not Judge Robinson.”57
AUSA Flannigan appears before Judge Vratil in United States v.
Benimon.58 She tells the court that “[w]hen we became aware that those
attorney-client visiting rooms recordings existed, we were already in the
process of discussing who would be our taint agent to review them to
determine if there was any attorney-client confidentialities or any attorney-
Case No. 14-20067-09, D.E. 397.
Attached Transcript of Hearing, United States v. Huff, 4:15-5:25, Case No. 1420067-CM (Aug. 22, 2016), Proposed Defense Exhibit 456 at 4.
57 Id. at 5.
58 Case No. 12-20115.
55
56
15
client privilege that was implicated.”59 She further states that the United
States Attorney’s Office “quarantined those videos as soon as we knew we
had them . . . nobody looked at them . . .”60
August 23, 2016
In an email to the Court, AUSA Tomasic discloses that the recorded
phone calls, which included attorney-client calls, were also disclosed to the
United States Probation Office and the Johnson County Sheriff’s Office.61
1.2 The undisputed evidence.
This much is undisputed:
 CCA video recorded attorney-client meetings.
 CCA audio recorded some attorney-client phone calls.
 The USAO issued a grand jury subpoena requesting 22 months of “all
video footage” maintained by CCA.
 CCA provided approximately four-months of video recordings to the
USAO that included attorney-client meetings.
 CCA provided audio recordings to the USAO that included attorneyclient phone calls, dating back as far as 2011.
 The USAO, through Criminal Coordinating Attorney Kim Flannigan
and AUSA Erin Tomasic, informed defense attorney Jacquelyn
Transcript of Hearing, United States v. Benimon, 4:04-09, Case No. 12-20115
(Aug. 22, 2016), attached as Proposed Defense Exhibit 457 at 4.
60 Id. at 21-22.
61 Attached, Proposed Defense Exhibit 452.
59
16
Rokusek that they had video recordings of her meeting with her client
at CCA.
 AUSA Flannigan and AUSA Tomasic told Ms. Rokusek that their agent
intended to watch those recordings, and had already seen video of her
walking down a hallway of CCA.
 As of June 10, 2016, the USAO had an index of the video recordings
that included seven entries entitled “Low Custody Attorney,” “Attorney
Room,” “Attorney Room 4, 5, 6, 7, 8, 9.”
 The USAO was preparing to disseminate the video recordings of
attorney-client meeting to other attorneys as part of discovery in this
and related cases.
 The USAO disseminated the audio recordings of attorney-client phone
calls to law enforcement, defense attorneys, and the United States
Probation Office.
1.3 Summary of the government’s defenses.
The government’s defenses are few and frail. First, glaringly absent
from the government’s responses is any attempt to explain the exchanges
between Criminal Coordinator Kim Flannigan and AUSA Erin Tomasic and
defense attorney Jacquelyn Rokusek between August 2 and August 5, 2016.
The evidence stands undisputed: the prosecution tried to separate two
defendants from their attorney using the existence, and the predicted
content, of the video recordings that were in the USAO possession and in the
17
process of review. 62 This was a violation of the Sixth Amendment of the most
invasive sort. This inaugurating episode remains unanswered at either
hearing, in the government’s pleadings, or by any remedial act.
Second, the government relies heavily on an unsworn assertion that no
one in the USAO or its agents watched the video recordings during the three
months that the government possessed them,63 as if this somehow vindicates
them.64 But, assuming arguendo this is true, the USAO still used the
existence of the recordings to attempt to separate two defendants from their
attorney. Moreover, the government was preparing to disseminate the
attorney-client video recordings to other defendants and their counsel to
view. And the government’s claimed disinterest is belied by its dogged effort
to regain access: the videos could include unprotected communications, says
the USAO, and the only function of a Special Master should be to parse the
protected from the non-protected.65
Third, the government claims inadvertent possession. But its
subsequent acts contradict this position, as explained by the testimony of
See Black I Tr. at 33-40 (testimony of Ms. Rokusek); Ex. 441.
63 D.E. at 120 at 3-4.
64 “Viewing” the video is also a rather narrow disclaimer. One can know the content
of the video without actually watching it, as the common practice is for law
enforcement agents to prepare narrative reports on the key portions.
65 Black II Tr. at 32-33.
62
18
Richard Ney and Professor Peter Joy and by ABA Rules of Professional
Conduct 4.4.66 The government notified neither the Court nor the parties, nor
did it take any corrective action.
Fourth, the government asserts, post hoc, that as soon as it knew the
recordings existed, on August 5, 2016, it summoned a “taint team.”67 That
defies credibility and ignores the evidence, as the USAO knew of the video
recordings as early as June 10, 2016; prepared to disseminate the recordings
to others as early as July, 21, 2016; and explicitly threatened to use the
recordings against Ms. Rokusek on August 2, 2016. And an internal “taint
team” is just another violation of attorney-client confidentiality, serving little
purpose in the law; instead, the law calls for review by a Special Master.
Fifth, the government now claims the recorded attorney-client phone
calls were fair game, as it unilaterally and secretly determined that CCA
chameleon-like policies served as an all-encompassing waiver of the Sixth
Amendment, confidentiality, privacy, and privilege. Had the government
Rule 4.4 Respect For Rights Of Third Persons: “(a) In representing a client, a
lawyer shall not . . . . use methods of obtaining evidence that violate the legal rights
of such a person. (b) A lawyer who receives a document or electronically stored
information relating to the representation of the lawyer’s client and knows or
reasonably should know that the document or electronically stored information was
inadvertently sent shall promptly notify the sender.”
67 Proposed Defense Exhibit 457 at 4.
66
19
timely notified the affected parties and deferred to the Court, it would have
lost. It loses now, but with much more substantial consequences.
20
2.
The Special Master should be invested with meaningful
authority to assess the extent of the Sixth Amendment
violations resulting from the government’s possession of
video recordings of attorney-client meetings.
The government’s almost singular response to the video recordings is
this: “[t]he most important fact for the Court and the Special Master to
consider is the simple fact that no employee of the United States Attorney’s
Office or law enforcement officer has viewed any recording of attorney-client
meetings provided by CCA.”68 Except this unsworn assertion is not a “fact”
for the Court to consider. Facts are developed from the presentation of
evidence. The government has presented none. Statements in pleadings are
not evidence. Secondarily, the government relies on the establishment of a
“taint team,” hoping to instill confidence in the Court that privileged material
was handled appropriately. As we shall see, the “taint team” procedure only
aggravates the problem.
2.1
The government failed to provide the Court a factual basis
to refute the defense evidence.
The government fails to offer evidence in support of its narrow proposal
concerning the authority of the Special Master. In contrast, the defense has
given the Court sworn testimony, subject to cross-examination; subpoenaed
witnesses and documents; and admitted exhibits, both photographic and
68
D.E. 120 at 3.
21
documentary. And with this reply are sworn affidavits from defense
attorneys. There is no comparing the relative evidentiary value —
government representations are not evidence.69
The Tenth Circuit explained this in Shillinger v. Haworth — a case
that applies in a number of different ways to this one.70 The Shillinger court
criticized the state court for using the same procedure that the government
urges here. “It is also evident from the record that the prosecutor’s
statements are the only evidence that the Wyoming Supreme Court relied
upon in determining the extent of the prosecution’s intrusion.”71 The court
United States v. Kelly, 790 F.2d 130, 135 (D.C. Cir. 1986) (reversing district court
for denying motion for new trial based on government’s “unsworn” representations;
defendant had supported new-trial request with sworn affidavits; district court
abused discretion by relying on government’s unsworn declarations over defendant’s
sworn evidence); Johnson v. Colt Industries Operating Corp., 609 F.Supp. 776, 783
(D. Kan. 1985); In re Lang, 293 B.R. 501, 513 (10th Cir. B.A.P. 2013) (“Counsel’s
statements in a brief or during a trial are not evidence.”); Project Release v. Prevost,
722 F.2d 960, 969 (2d Cir. 1983) (“Conclusory allegations in legal memoranda are
not evidence, and cannot by themselves create a genuine issue of material fact
where none would otherwise exist.”); Exeter Bankcorporation, Inc. v. Kemper
Securities Group, Inc., 58 F.3d 1306, 1312 n.5 (8th Cir. 1995) (“Statements of
counsel are not evidence and do not create issues of fact.”); British Airways Bd. v.
Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978) (“[L]egal memoranda and oral
argument are not evidence, and they cannot by themselves create a factual dispute
sufficient to defeat a summary judgment motion where no dispute otherwise
exists.”) United States v. Lombardo, 2007 WL 4358341 at *2 (D. Utah 2007)
(“However, these statements, found in the memorandum submitted by Kimberlie
Lombardo’s counsel, are not evidence”) (unpublished).
70 70 F.3d 1132 (10th Cir. 1995).
71 Id. at 1137.
69
22
went on to explain the procedures that should have been used by detailing
the things the court had not done:
(1) the court “never held a hearing beyond these in-chambers
conferences”;
(2) the deputy was never asked to testify or to otherwise make a
statement regarding the matter; and,
(3) no other fact-finding procedure was employed beyond adopting the
assertions made by the prosecutor — most of them arguably
hearsay — at a conference in which he was not subject to the
penalties of perjury.”72
The Shillinger court tallied these failures to conclude that the district court’s
fact-finding procedure “was not adequate to afford a full and fair hearing.”73
The court took pains to “again emphasize that no sworn testimony was ever
taken, and most of what was relied upon . . . was hearsay. The procedures . . .
completely denied any opportunity to challenge or impeach the prosecutor’s
assertions or those he attributed to the deputy.”74
The Tenth Circuit’s procedure in United States v. Singleton75 tracks the
defense recommendations here. Faced with an allegation that the
government had come to possess privileged materials, the district court used
a “magistrate judge acting as a special master” to review the evidence and
Id.
Id. at 1138 (citing 28 U.S.C. § 2254(d)(2)).
74 Id. (quotation and citation omitted).
75 52 Fed. Appx. 456, 459-60 (10th Cir. 2002) (unpublished).
72
73
23
“conduct[] an evidentiary hearing . . . ”76 The Tenth Circuit found that the
district court provided the appropriate procedures through a special master.77
The contours of the condemnation in Shillinger and of the approval in
Singleton give this Court a roadmap. By examining what the Tenth Circuit
said should have occurred there, we can discover what should occur here.
That includes a fact-finding procedure that grants authority to take sworn
testimony, to access information (including impeaching information), to
adhere to the rule against hearsay, and to exercise any other power needed to
conduct a judicial inquiry.
The government’s recommendation does not include these procedures,
but rather invites a fact-finding procedure that is inadequate under Circuit
law. The defense recommendation, on the other hand, requires testimony to
be given to the Special Master under oath and provides the Special Master
with both compulsory process and enforcement authority. As needed, the
Special Master can compel statements from USAO employees, defense
attorneys, interpreters, U.S. Marshals, and U.S. Probation officers if any
have relevant information regarding the government’s knowledge, possession,
and dissemination of protected material.
76
77
Id.
Id. at 460.
24
And a Special Master with broad authority is called for because of the
government’s conduct in this case. It refused to present evidence at either
evidentiary hearing before this Court; it has not requested another
evidentiary hearing; it has provided no documentary evidence or affidavits;
and its conduct and statements in other cases, such as United States v. Huff,
at least suggests the possibility that similar violations have occurred outside
of this case. The government has not taken any opportunity to provide this
Court with evidence that would resolve the pending issues. In fact, the
government has only created more confusion.
2.2 The government’s fallback position—that the internal taint
team will assuage concerns about the protected material—
compounds the violations.
The government tries to inoculate its behavior by relying on the
establishment of a “taint team.” But “[f]ederal courts have taken a skeptical
view of the Government’s use of ‘taint teams’ as an appropriate method for
determining whether seized or subpoenaed records are protected by the
attorney-client privilege.”78 As the Sixth Circuit explained,
taint teams present inevitable, and reasonably foreseeable, risks
to privilege, for they have been implicated in the past in leaks of
confidential information to prosecutors. That is to say, the
government taint team may also have an interest in preserving
the privilege, but it also possesses a conflicting interest in
pursuing the investigation, and, human nature being what it is,
United States v. SDI Future Health, Inc., 464 F.Supp.2d 1027, 1037 (D. Nev.
2006).
78
25
occasionally some taint team attorneys will make mistakes or
violate their ethical obligations. It is thus logical to suppose that
taint teams pose a serious risk to holders of the privilege, and
this supposition is supported by past experience.79
The government’s establishment of a taint team aggravates rather than
mitigates its violation of the privilege. “While the parties dispute whether
In re Grand Jury Subpoenas 04–124–03 and 04–124–05, 454 F.3d 511, 523 (6th
Cir. 2006); In re Search Warrant for Law Offices Executed on March 19, 1992, 153
F.R.D. 55, 59 (S.D. N.Y. 1994) (“Resisting, as we do with great difficulty, the
temptation to plagiarize, and take for our own the racist wisecrack about the
Chinese Wall, and its inevitable apertures, found in United States v. Sapere, 531
F.2d 63, 66 (2d Cir.1976), this Court notes that reliance on the implementation of a
Chinese Wall, especially in the context of a criminal prosecution, is highly
questionable, and should be discouraged. The appearance of Justice must be served,
as well as the interests of Justice. It is a great leap of faith to expect that members
of the general public would believe any such Chinese wall would be impenetrable;
this notwithstanding our own trust in the honor of an AUSA. Furthermore, in a
case such as this the Chinese Wall attorney to perform the search required the
physical assistance of agents, laborers, truckmen and others not bound by the
ethical considerations which affect a lawyer. Those on the Mongol side of the Wall
may well access the same information from other sources, and have difficulty
convincing a defendant or the public that the information did not pass over or
through the Wall.”); In re the Seizure of All Funds on Deposit in Accounts in the
Names of National Electronics, Inc., at JP Morgan Chase Bank, 2005 WL 2174052
at *3 (S.D. N.Y. 2005) (“This Court agrees that reliance on review by a ‘wall’
Assistant in the context of a criminal prosecution should be avoided when possible.
Therefore, if the volume of the documents precludes review by this Court, the Court
will appoint a special master to review the documents seized to determine if they
are subject to any relevant privilege.”) (unpublished); United States v. Abbell, 914
F.Supp. 519 (S.D. Fla. 1995) (rejecting taint team procedure in favor of special
master). Even courts approving the use of a taint team have indicated that use of a
special master would be a superior approach. United States v. Hunter, 13 F.Supp.2d
574, 583 n.2 (D. Vt. 1998) (“It may be preferable for the screening of potentially
privileged records to be left not to a prosecutor behind a ‘Chinese Wall,’ but to a
special master or the magistrate judge.”).
79
26
courts have sanctioned the Department of Justice’s ‘taint team’ procedures, it
is clear that the government’s affirmative decision to invoke these procedures
constitutes a per se intentional intrusion” on the right to counsel.80 When
“the government chooses to take matters into its own hands rather than
using the more traditional alternatives of submitting disputed documents
under seal for in camera review by a neutral and detached magistrate or by
court-appointed special masters, it bears the burden to rebut the
presumption that tainted material was provided to the prosecution team.”81
No such showing has been attempted here. The government, by establishing
a taint team, has intentionally intruded on the attorney-client privilege.
United States v. Neill, 952 F.Supp. 834, 840-1 (D.C. 1997).
Id. at 841 (internal citations omitted); Briggs v. Goodwin, 698 F.2d 486, 495 (D.C.
Cir. 1983) (“[O]nce the investigatory arm of the government has obtained
information, that information may reasonably be assumed to have been passed on
to other governmental organs responsible for prosecution. Such a presumption
merely reflects the normal high level of formal and informal cooperation which
exists between the two arms of the executive.”), vacated on other grounds on reh.,
712 F.2d 1444 (1983).
80
81
27
3.
The Special Master should be invested with meaningful
authority to assess the extent of the Sixth Amendment
violation resulting from the government’s possession of
audio recordings of attorney-client telephone calls.
The bottom line is this: the USAO determined, unilaterally and without
notice to the affected parties, decided that defendants had waived their rights
to confidential and privileged phone communications with their attorneys.
This was wrong, both procedurally and substantively.
Without seeking judicial approval, the government seized recorded
telephone conversations of at least 50 pretrial detainees. As the evidence
demonstrates, an as-yet unknown number of these recorded phone calls were
between detainees and their attorneys. The government then distributed
those attorney-client conversations to at least six defense counsel, the Kansas
Bureau of Investigation, the United States Secret Service, the United States
Marshals Service, the United States Probation Office, the Johnson County
Sheriff’s Office, and the Internal Revenue Service. The government
unapologetically admits the recording and disclosure of attorney-client phone
conversations, but claims that the fact the calls were recorded waives the
attorney-client privilege.
The government has claimed that defendants were informed of the
policies to ensure their communications were protected. But other than
counting on their attorneys, there appears to be no action a client can take to
28
protect phone calls on their end. Even in a case where a defendant has an
opportunity to protect calls – but fails to understand the system – that alone
is not sufficient for a waiver of privilege. Such responsibility does not fall on
the inmate; rather, “it was the responsibility of prison officials to clearly and
explicitly explain what that phrase did not say and what more was
required.”82 A defendant must be “fully and unequivocally advised of the
procedures which have been laid out.”83 Here, CCA tells defendants that their
attorneys will take care of it, and gives them no option other than to rely on
their attorneys.
The government’s action violated the Sixth Amendment. “An
independent judiciary and a sacrosanct confidential relationship between
lawyer and client are the bastions of an ordered liberty.”84 To provide
effective assistance, “a lawyer must be able to communicate freely without
fear that his or her advice and legal strategy will be seized and used against
the client in a criminal proceeding.”85
United States v. Noriega, 764 F.Supp. 1480, 1487 (S.D. Fl. 1991), aff’d United
States v. Noriega, 117 F.3d 1206 (11th Cir. 1997).
83 Id.
84 Edna Selan Epstein, The Attorney–Client Privilege and the Work–Product
Doctrine 2 (3d ed. 1997).
85 United States v. SDI Future Health, Inc., 464 F.Supp.2d 1027, 1039 (D. Nev.
2006); see also United States v. Levy, 577 F.2d 200, 209 (3d Cir. 1978); United States
v. Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973). Communications within the scope of
the attorney-client privilege are “zealously protected.” 8 C. Wright & A. Miller,
82
29
Incarcerated defendants retain the attorney-client privilege,86 which
only the client can waive.87 The “monitoring of [a defendant’s] calls to his
attorney presents a significant Sixth Amendment issue.”88 When the
government seizes potential evidence “based on confidential communications
between the defendant and his attorney it also impinges on the Sixth
Amendment right to counsel.”89
To establish waiver of a constitutional right, the government “has the
weighty obligation to show that the waiver was knowingly and intelligently
made.”90 And even if the government had a good-faith basis to allege waiver,
the proper process was to notify the parties and ask the Court to determine
whether the detainees had waived their right to confidential and privileged
Federal Practice and Procedure § 2017 (1970); Chore-Time Equipment, Inc. v. Big
Dutchman, Inc., 255 F.Supp. 1020, 1021 (W.D. Mich. 1966) (“[I]t generally is
acknowledged that the attorney-client privilege is so sacred and so compellingly
important that the courts must, within their limits, guard it jealously.”); In re
Grand Jury Subpoena Duces Tecum, 391 F.Supp. 1029, 1034 (S.D. N.Y. 1975).
86 United States v. DeFonte, 441 F.3d 92, 94 (2d Cir. 2006).
87 Martin Marietta Materials, Inc. v. Bedford Reinforced Plastics, Inc., 227 F.R.D.
382, 390 (W.D. Pa. 2005) (“Generally, ‘the attorney-client privilege belongs to the
client.’”) (listing authorities); Kevlik v. Goldstein, 724 F.2d 844, 849 (1st Cir. 1984)
(“The guiding principle in determining whether or not there exists a privileged
attorney-client relationship is the intent of the client. The key question in
determining the existence of a privileged communication is whether the client
reasonably understood the conference to be confidential.”).
88 United States v. Novak, 531 F.3d 99, 102 (1st Cir. 2008) (O’Conner, J., by
designation).
89 Bishop v. Rose, 701 F.2d 1150, 1157 (6th Cir. 1983).
90 Brewer v. Williams, 430 U.S. 387, 403 (1977).
30
communication.91 Instead, the government just seized the recordings, without
notice to counsel, and without the Court’s approval.
3.1
Defense counsel reasonably believed phone calls with
their clients were not monitored or recorded
The government theorizes that the detainees waived their attorneyclient privilege by speaking to their counsel on recorded phone lines. In an
apparent post-hoc rationalization, the government hypothesizes a world in
which CCA consistently and openly communicated its recording policies and
practices to both the detainee and the attorney, and the detainee understood
and knew that her phone calls with her attorney were recorded and available
to the prosecution.
See, e.g., United States v. Salyer, 2011 WL 677886 (E.D. Cal. 2011) (government
petition for court determination of waiver and permission to examine recordings of
attorney-client phone calls) (unpublished); KRPC 4.4(b) (“A lawyer who receives a
document or electronically stored information relating to the representation of the
lawyer’s client and knows or reasonably should know that the document or
electronically stored information was inadvertently sent shall promptly notify the
sender.”); KPRC 1.6 n.5 (“The principle of confidentiality is given effect in two
related bodies of law, the attorney-client privilege (which includes the work product
doctrine) in the law of evidence and the rule of confidentiality established in
professional ethics. The attorney-client privilege applies in judicial and other
proceedings in which a lawyer may be called as a witness or otherwise required to
produce evidence concerning a client. The rule of client-lawyer confidentiality
applies in all situations other than those where evidence is sought from the lawyer
through compulsion of law. The confidentiality rule applies not merely to matters
communicated in confidence by the client but also to all information relating to the
representation, whatever its source.”)
91
31
This is not reality. Defense attorneys expected, and reasonably so, that
their phone calls with clients at CCA were privileged.92 Included with this
pleading are a number of affidavits and declarations from experienced
criminal-defense practitioners who represent clients detained at CCA.93
These affidavits establish that there was no consistent practice by CCA in
handling attorney-client phone calls. Most defense attorneys were unaware
that CCA was monitoring or recording their phone calls. Most had never
heard of a registry of phone numbers that would block recording of telephone
calls. Not one of them has ever had a client ask whether their attorney was
included on a no-record registry. Only one attorney has received discovery
containing phone calls between attorneys and their clients. Several have
never heard a recording indicating that a phone call with a client could be
monitored or recorded. And several more affirmatively advised their clients
that phone calls with their counsel are not monitored or recorded — advice
upon which their clients had a right to rely.94
Black I Tr. at 68 and 72.
Proposed Defense Exhibit 459 (Affidavits and Declarations of CJA panel
attorneys Christopher Joseph, Kathleen Ambrosio, Robert Calbi, Cynthia Dodge,
John Jenab, Deb Vermillion, Michael Jackson, Jackie Rokusek, Tom Haney, Robin
Fowler, Thomas Johnson, and Melanie Morgan.)
94 KPRC 1.6 n.3: “Almost without exception, clients come to lawyers in order to
determine what their rights are and what is, in the maze of laws and regulations,
deemed to be legal and correct. The common law recognizes that the client’s
92
93
32
Counsel could also reasonably rely on 18 U.S.C. § 3142(i)(3) for the
expectation that their client communications would be confidential. That
statute provides that when a detention order is issued, the judge shall “direct
that the person be afforded reasonable opportunity for private consultation
with counsel.”
These counsel had every reason to believe that the attorney-client
communications were confidential. Yet the government perseveres with the
waiver defense despite the facts that the most affected defense attorneys:
 were unaware that their conversations were being recorded,
 had no idea that CCA required them to subscribe to a registry to
prevent recording,
 had never been asked by a client whether they had subscribed to a
registry,
 had, in many cases, never heard a recording indicating that their
conversations with clients were being recorded, and
 had never received attorney-client phone calls in discovery.
Given these facts, defense attorneys reasonably concluded that their
attorney-client conversations were not recorded.
Finally, the attached affidavits and declarations demonstrate that a
number of defense attorneys advised their clients that — despite the warning
confidences must be protected from disclosure. Based upon experience, lawyers
know that almost all clients follow the advice given, and the law is upheld.”
33
that phone calls may be recorded — the government would never do such a
thing when the call was between an attorney and a client. That trust in the
government may have been misplaced, but it was certainly not unreasonable.
After all, they were dealing with a correctional institution that guarantees
detainees “confidential contact with their attorneys”95 and promises that
“[w]e do not record inmate/attorney telephone conversations at Leavenworth
or any other CCA facility.”96
3.2
Since the 2008 amendment to Federal Rule of Evidence
502(b), inadvertent disclosure of privileged information
does not waive the attorney-client privilege.
The question for this Court “is whether the communication between the
client and the attorney is made in confidence of the relationship and under
circumstances from which it may reasonably be assumed that the
communication will remain in confidence.”97 Relying on defunct authority,
the government asks this Court to hold that it was unreasonable for highly
experienced defense counsel to believe that telephone conversations with
their clients were confidential.
http://www.cca.com/protecting-inmate-and-detainee-rights (Last visited August
29, 2016).
96 Jonathan Burns, CCA Spokesman, http://kcur.org/post/discovery-videorecordings-leavenworth-detention-center-spurs-outrage#stream/0 (Last visited
August 29, 2016).
97 In re Qwest Communications Inten. Inc., 450 F.3d 1179, 1185 (10th Cir. 2006); see
also United States v. Lopez, 777 F.2d 543 (10th Cir. 1985).
95
34
This is an important distinction: the government makes no claim that
any counsel for any of the detainees specifically intended to waive the
attorney-client privilege. The absence of that claim defaults to inadvertent
waiver and thus defeats the government’s waiver defense. All of the
government’s authority predates the 2008 amendment to Federal Rule of
Evidence 502, which profoundly altered how courts determine privilegewaiver questions. Before the amendment, even an inadvertent disclosure of
privileged information operated as a waiver. After the amendment,
inadvertent disclosures no longer waive the privilege as long as the disclosing
party acts quickly to rectify the disclosure, which defense counsel did here.
Federal Rule of Evidence 502(b) provides:
Inadvertent Disclosure - When made in a Federal proceeding or
to a Federal office or agency, the disclosure does not operate as a
waiver in a Federal or State proceeding if:
1. the disclosure is inadvertent;
2. the holder of the privilege or protection took reasonable steps
to prevent disclosure; and
3. the holder promptly took reasonable steps to rectify the error.
Subsection (b) was amended to address a “conflict over whether an
inadvertent disclosure of a communication or information protected as
privileged or work product constitutes a waiver.”98 The 2008 amendment
98
Fed. R. Evid. 502 Explanatory Note (Revised 11/28/2007).
35
explains that the amendment applies to matters pending on September 19,
2008, “insofar as is just and practicable.”99
The amended version of Rule 502(b) substantially changed Tenth
Circuit law regarding waiver. Before the amendment, the “attorney-client
privilege [was] lost if the client disclose[d] the substance of an otherwise
privileged communication to a third party. This is true even if the disclosure
[was] inadvertent.”100 But after the amendment, “Rule 502 clearly abrogates
previous Tenth Circuit law concerning subject matter waivers on disclosed
documents otherwise protected by attorney-client privilege and work-product
protection.”101 Since the Rule was amended in late 2008, inadvertent
disclosures do not waive the privilege as long as: (1) the disclosure was
inadvertent, (2), the privilege holder took reasonable steps to prevent
disclosure, and (3) the privilege holder took prompt action to rectify the
situation.102
3.2.1 Any disclosures here were inadvertent.
An unintentional disclosure is by definition inadvertent. “[T]he
structure of Rule 502 suggests that the analysis under subpart (b)(1) is
Act of Sept. 19, 2008, Pub.L. No. 110–322, § 1(c), 122 Stat. 3537, 3538.
United States v. Ryans, 903 F.2d 731, 741 n.13 (10th Cir. 1990) (internal
citations omitted).
101 Silverstein v. Federal Bureau of Prisons, 2009 WL 4949959 at *9 (D. Colo. 2009).
102 Fed. R. Evid. 502(b).
99
100
36
intended to be much simpler, essentially asking whether the party intended a
privileged or work-product protected document to be produced or whether the
production was a mistake. To start, the parallel structure of subparts (a)(1)
and (b)(1) of Rule 502 contrasts a waiver that is intentional with a disclosure
that is inadvertent.”103 The government has presented no evidence to the
contrary, precluding any argument that the disclosure was intentional. The
worst that can be said of defense counsel is that they made a mistake by
trusting CCA’s assurances that attorney-client phone calls were confidential.
But “[c]oncluding that a lawyer’s mistake never qualifies as inadvertent
disclosure under Rule 502(b) would gut that rule like a fish.”104 By relying on
CCA’s public and unqualified representation that attorney-client telephone
Coburn Group LLC v. Whitecap Advisors LLC, 640 F.Supp.2d 1032, 1038 (N.D.
Ill. 2009); see also Silverstein, 2009 WL 4949959 at *10 (“First, Rule 502(b) requires
that this court determine if the disclosure of the October 2004 Document was
inadvertent. The dictionary definition of the word inadvertent is, ‘not attentive or
observant; heedless; due to oversight; unintentional.’ WEBSTER’S NEW WORLD
DICTIONARY (3d College ed.1988).”); Amobi v. District of Columbia Dept. of
Corrections, 262 F.R.D. 45, 53 (D. D.C. 2009) (“This interpretation seems to be in
line with one of the goals of the drafting committee: to devise a rule to protect
privilege in the face of an innocent mistake. Additionally, defining inadvertent as
mistaken comports with the dictionary definition of the word: ‘Of persons, their
dispositions, etc.: Not properly attentive or observant; inattentive, negligent;
heedless . . . . Of actions, etc.: Characterized by want of attention or taking notice;
hence, unintentional.’”); Judson Atkinson Candies, Inc. v. Latini–Hohberger
Dhimantec, 529 F.3d 371, 388 (7th Cir. 2008) (finding inadvertence when “[t]here is
nothing clearly inadequate about the process described”).
104 Amobi, 262 F.R.D. at 54.
103
37
calls are confidential, at most, the defense bar’s disclosure was inadvertent.
The government does not contend otherwise.
3.2.2 Counsel took reasonable steps to prevent disclosure.
As the attached affidavits and declarations demonstrate, the defense
bar was utterly unaware that CCA was recording attorney-client phone calls.
The defense bar’s reliance on CCA’s promise that detainees would have
“confidential contact with their attorneys”105 and guarantee that “[w]e do not
record inmate/attorney telephone conversations at Leavenworth or any other
CCA facility”106 seems eminently reasonable.
The decision to take CCA at its word is also reasonable because it
conforms to our expectations that pretrial holding facilities respect the
attorney-client privilege.107 This is particularly true, as the affidavits and
declarations note, when an attorney assures his or her client that a telephone
call from a holding facility is confidential. “[P]eople generally believe
conversations with their attorneys will be kept privileged and confidential. It
http://www.cca.com/protecting-inmate-and-detainee-rights (Last visited August
29, 2016).
106 Jonathan Burns, CCA Spokesman, http://kcur.org/post/discovery-videorecordings-leavenworth-detention-center-spurs-outrage#stream/0 (Last visited
August 29, 2016).
107 See Black I Tr. at 68-69 (testimony of Richard Ney).
105
38
is also objectively reasonable for a suspect to rely on his attorney’s opinions
regarding confidentiality and the attorney-client privilege.”108
3.2.3 The privilege holders took immediate steps to protect
their clients’ interests.
The “single most important factor under Rule 502(b) is that prompt
steps to retrieve the inadvertently produced privileged documents must be
taken once discovery of that production has been made.”109 The Federal
Defender became convinced of the government’s attorney-client privilege
violation late in the evening of August 4, 2016. That evening, counsel
received a forwarded email from the Western District of Missouri U.S.
Marshal that CCA did in fact video record attorney-client meetings.110 That
directly conflicted with the information that CCA, the District of Kansas
Gennusa v. Shoar, 879 F.Supp.2d 1337, 1347-48 (M.D. Fl. 2012); see also
Danielle Burkhardt, Read, White, and Blue: Prosecutors Reading Inmate Emails
and the Attorney-Client Privilege, 48 J. Marshall L. Rev. 1119, 1135 n.123 (2015)
(“Most commonly what happens is that a client will call from a phone at the federal
detention center or prison and ignore the sign that says telephone calls are
monitored. He or she can certainly reasonably believe that the facility has no
authority to monitor attorney-client calls. Lawyers often have the same belief. The
thought process is either that any recording will be minimized as required under
the wiretap statutes or that it is illegal for a guard to eavesdrop on an attorneyclient conversation.”); Evans v. Inmate Calling Solutions, 2011 WL 7470336 at *15
(D. Nev. 2011) (“[I]t is objectively reasonable for confidential communication
between an inmate and his attorney to remain private.”) (unpublished).
109 Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product
Doctrine 109 (5th Ed. Supp. 2012).
110 Ex. 444.
108
39
USMS, and the USAO had given the defense that same day: that CCA did
not, and could not video record attorney-client meetings at CCA. Once the
defense confirmed the conflicting representations, the present motion under
Federal Rule of Criminal Procedure 41(g) was filed the next day, requesting
an emergency hearing.111 That prompt action stands as strong evidence that
no waiver of the attorney-client privilege can be found under Rule 502(b).112
Considering a remarkably similar set of facts, the district court in
United States v. Salyer rejected the government’s claim that the privilege was
D.E. 82.
Smith v. Allstate Ins. Co., 912 F.Supp.2d 242, 248 (W.D. Pa. 2012) (“Upon
discovery of the inadvertent disclosures, Allstate immediately brought the issue to
the attention of Plaintiff’s counsel by notifying Plaintiff’s counsel of the inadvertent
disclosure.”); Heriot v. Byrne, 257 F.R.D. 645, 658-9 (N.D. Ill. 2009) (“To determine
whether a disclosure was inadvertent, ‘this Court has . . . look[ed] to factors such as
the total number of documents reviewed, the procedures used to review the
documents before they were produced, and the actions of producing party after
discovering that the documents had been produced.’”); J.N. v. South Western School
Dist., 55 F.Supp.3d 589, 600-01 (M.D. Pa. 2014) (acting four days after disclosure
weighed in favor of non-waiver); Preferred Care Partners Holding Corp. v. Humana,
258 F.R.D. 684, 695 (S.D. Fla. 2009) (acting within ten days of determining privilege
violated was reasonable); cf. In re Grand Jury, 138 F.3d 978, 981 (3d Cir. 1998)
(“While we cannot set an exact time within which such a motion must be made, we
hold that the district court did not abuse its discretion in holding that Capano
waived the privilege as we are satisfied that Capano acted unreasonably in waiting
nearly four months to seek a judicial vindication of his assertion of the privilege.”);
United States v. de la Jara, 973 F.2d 746, 749-50 (9th Cir. 1992) (defendant’s failure
to act within six months of letter’s seizure by government operated to waive
attorney-client privilege); Apex Mun. Fund. v. N–Group Secs., 841 F.Supp. 1423,
1433 (S.D. Tex. 1993) (“Simply put, a one-year delay in taking any action to attempt
to preserve the privilege exemplifies carelessness.”).
111
112
40
waived.113 Before the Salyer court was the government’s motion to listen to
and use recorded calls between a defendant and his attorney.114 The
government there made the same argument it does here: that the attorneyclient privilege had been waived because the calls in issue were not made
pursuant to the jail’s procedure for making attorney client calls. In Salyer,
there was a sign above the phones that read “Notice–Phones May be
Monitored.” The jail handbook distributed to inmates warned: “Keep in mind
when talking on jail telephones that you have no right of privacy and the jail
staff may monitor phone conversations.” And a recording on telephone calls to
numbers “not registered as attorney numbers” warned that the call was being
monitored.115
The Salyer court rejected the government’s argument that these
warnings “ended the matter.”116 It began by noting that the “method for
insuring that attorneys are familiar with the [phone registration] system is,
at best, haphazard.”117 Mr. Salyer’s counsel said they were unaware of the
jail’s phone registration system, and “it is clear from their behavior that
Salyer’s attorneys were unfamiliar with the jail’s method of accommodating
2011 WL 677886 (E.D. Cal. 2011).
114 Id. at *1.
115 Id.
116 Id.
117 Id.
113
41
the attorney-client privilege.”118 Applying Federal Rule of Evidence 502(b),
the court identified the central question in the case as “whether Salyer
reasonably believed that his communications were made in confidence.”119
The court held that Rule 502 controlled the outcome of the case.120
Concluding that Salyer’s attorneys had a reasonable belief that their
communications were confidential, even in the face of audio warnings that
phone calls with their clients were recorded, the court found
[w]hile the jail had a procedure for protected communications, it
was not fairly made known, and was not known to the attorneys
advising Mr. Salyer. Moreover, those attorneys assumed that an
assertion of the privilege was sufficient to establish its protection
even in a jail setting. Confidentiality is defined by the client’s
intent. It cannot be doubted that had the parties to the
conversations known of the government’s position of nonapplicability, they would not have engaged in them. Given the
totality of circumstances, the court concludes that the parties had
the requisite intent, and under the circumstances, such intent
was not unreasonable.121
Id. at *2.
Id.
120 Id.
121 Id at *3. See also United States v. Noriega, 764 F.Supp. 1480, 1487 (S.D. Fl.
1991), aff’d 117 F.3d 1206 (11th Cir. 1997) (rejecting waiver claim on grounds that
“it was the responsibility of prison officials to clearly and explicitly explain what
that phrase [‘a properly placed phone call to an attorney is not monitored’] did not
say and what more was required” to make unmonitored phone call with attorney).
118
119
42
Finally, the court deemed an assertion of the privilege within a month
of discovering that the government had recorded attorney-client phone calls a
sufficiently prompt assertion to trigger Rule 502(b)’s protection.122 The court
concluded that “[i]f the government cannot succeed without invading the
attorney client privilege, it should not proceed. If, as appears likely, no
significant damage will accrue to the government by denying its motion, it
ought to get on with it.”123
3.3
The government’s authority is inapposite.
The government unhelpfully cites a number of authorities that do not
address calls between detainees and their attorneys, but between detainees
and members of the public.124 In “the prison setting, attorney-client
communications generally are distinguished from other kinds of
communications and exempted from routine monitoring.”125 While phone calls
between detainees and members of the public usually lack an expectation of
privacy, “it is objectively reasonable for confidential communication between
Salyer, 2011 WL 677886 at *3.
123 Id. at *4.
124 United States v. Madoch, 149 F.3d 596, 602 (7th Cir. 1998) (phone call between
detainee and non-attorney); United States v. Van Poyck, 77 F.3d 285, 290-91 (9th
Cir. 1996) (same); United States v. Sababu, 891 F.2d 1308, 1329 (7th Cir. 1989)
(same); United States v. Harrelson, 754 F.2d 1153, 1169-70 (5th Cir. 1985) (same).
125 Lonegan v. Hasty, 436 F.Supp.2d 419, 432 (E.D. N.Y. 2006).
122
43
an inmate and his attorney to remain private.”126 Courts draw a distinction
between recorded calls to laypersons and recorded calls to attorneys because
“the monitoring of [the defendant’s] calls to his attorney presents a
significant Sixth Amendment issue.”127 Unlike phone calls between detainees
and members of the public, when the government seizes evidence of
“confidential communications between the defendant and his attorney it also
impinges on the Sixth Amendment right to counsel.”128
The government does cite four cases addressing recorded phone calls
between attorneys and their detained clients: United States v. Hatcher,129
United States v. Eye,130 United States v. Lentz,131 and Watson v. Albin.132 But
Watson does little more than rehash Hatcher, Eye, and Lentz; it does not
merit individual treatment. The rest we distinguish in turn.
Hatcher has little to do with our case. It determined the privilege was
waived when “inmates and their lawyers were aware that their conversations
were being recorded.”133 Those are not our facts. As the affidavits and
Evans, 2011 WL 7470336 at *15.
Novak, 531 F.3d at 102.
128 Bishop, 701 F.2d at 1157.
129 323 F.3d 666 (8th Cir. 2003).
130 2008 WL 1701089 (W.D. Mo. 2008) (unpublished).
131 419 F.Supp.2d 820 (E.D. Va. 2005).
132 2008 WL 2079967 (N.D. Cal. 2008) (unpublished).
133 323 F.3d at 674.
126
127
44
declarations we submit show, defense counsel in this case were utterly
unaware that their conversations were being recorded.134
In Eye, the government presented a great deal of evidence explaining
how the detainee phone calls had been received and processed by its staff.135
The court relied on that evidence to find that no Sixth Amendment violation
had occurred. It relied on United States v. Solomon136 for the proposition that
the “burden of proof to establish a [Sixth Amendment] violation and resulting
prejudice is on the defendant.”137 Here, of course, the government has
presented no evidence, and the Tenth Circuit applies the opposite rule
regarding prejudice.138 Finally, Eye’s waiver holding suffers from the some
disconnect as Hatcher — in both cases the attorney knew that calls were
being recorded.139 There is no such evidence in our case.
See Gennusa v. Shoar, 879 F.Supp.2d 1337, 1347-48 (M.D. Fl. 2012) (no waiver
when “[n]o reasonable attorney in Gennusa’s position would have expected that her
conversations with her client were being actively monitored and recorded”); Cody v.
Walter, 2008 WL 4543042 at *8 (D. S.D. 2008) (“Here plaintiffs are asserting they
are entitled to confidential conversations with their lawyers about post-conviction
remedies and conditions of confinement. This is a different issue than addressed in
Hatcher.”) (unpublished).
135 2008 WL 1701089 at *3-8.
136 679 F.2d 1246, 1250 (8th Cir. 1982).
137 2008 WL 1701089 at *11.
138 Schillinger v. Haworth, 70 F.3d 1132, 1142 (10th Cir. 1995) (“a prejudicial effect
on the reliability of the trial process must be presumed. In adopting this rule, we
conclude that no other standard can adequately deter this sort of misconduct.”)
139 Eye, 2008 WL 1701089 at *12 (finding waiver “because there is no question that
he and his attorney knew the calls could be recorded”).
134
45
The Lentz decision best highlights the impact of Rule 502’s amendment
on these facts. Decided in 2005 — before the 2008 amendment — Lentz
applied the old rule and held that a phone call an inmate knew was recorded
waived the privilege because the requirement “of confidentiality is so central
to any claim of privilege that the privilege may be lost even by an inadvertent
disclosure to a third party.”140 After 2008, such an inadvertent disclosure
would no longer result in a valid waiver. The only role the Lentz decision has
to play here is in demonstrating the evil that the amendment to Rule 502 was
designed to protect against. In fact, none of the government’s authority postdates 2008, which makes it unhelpful in answering the present question
before the Court.
In our case, highly experienced defense counsel reasonably relied on
CCA’s promise that their communications with their clients were
confidential. They relayed that promise to their clients. Any disclosure of
privileged information in the attorney-client phone calls was thus
inadvertent, and counsel has acted immediately to remedy the disclosure.
Rule 502(b) dictates that no waiver of the privilege occurred.
140
Lentz, 419 F.Supp.2d at 827 (emphasis added).
46
4.
Other requested relief.
A Special Master with broad authority is necessary and urgent. Since
the Court ordered Kansas facilities to stop recording, some jails have
restricted attorney-client visitation in ways that interfere with meaningful
attorney-client communication.141 In other words, the price of confidentiality
has been restricted access to counsel. For example, one jail now requires
handcuffs and belly chains for clients during attorney visits. One jail
downsized attorney contact visitation to one room for a facility that houses up
to 230 detainees. Other visitation rooms are non-contact so that material
cannot be effectively reviewed. Efforts to accommodate legitimate concerns
about security and acceptable visitation142 have been unsuccessful. While we
understand that some alterations are necessary, the “fallout” of
CCA has been responsive to the Court’s order and cooperative in accommodating
defense attorneys.
142 See, e.g., Deck v. Missouri, 544 U.S. 622, 631 (2005) (“Shackles can interfere with
the accused’s ‘ability to communicate’ with his lawyer.”) (citation omitted); ABA
Standards for Criminal Justice: Treatment of Prisoners, Standard 23-9.4(c)(ii)(A)
(2011) (“absent an individualized finding that security requires otherwise, counsel
should be allowed to have direct contact with a prisoner who is a client, prospective
client, or witness, and should not be required to communicate with such a prisoner
through a glass or other barrier.”); Amber Baylor, Beyond the Visiting Room: A
Defense Counsel Challenge to Conditions in Pretrial Confinement, 14 Cardozo Pub.
L. Pol’y & Ethics J. 1 (2015) (discussing need for counsel to engage with client in
“intensive and sensitive conversations” that must be both “clear and nuanced” in
order to “cement trust, build elements of a defense, assess the case, and make quick
decisions about plea offers”; detailing barriers to developing trust with detained
clients).
141
47
confidentiality should not diminish access to meaningful attorney-client
communication.
One other immediate concern: the Kansas City office of the USAO may
be in the cyclical process of replacing computers and perhaps other electronic
equipment. On August 31, 2016, the FPD asked the USAO to ensure that any
such replacement does not destroy any information relevant to the Sixth
Amendment issues currently before this Court. The replaced computers, hard
drives, and other media may contain ESI that is relevant to a Special
Master’s inquiry into who may have accessed the video and audio recordings.
That information should be preserved and available to the Special Master.
The Special Master must be given access to material in the USAO’s
control. Defense requests have gone unanswered. Here is one example:
The government claims that it inadvertently came into
possession of the attorney-client video recordings when it
subpoenaed CCA for 22 months of “all video footage.”143
The government told the Court on July 21 that there were video
cameras in the attorney-client rooms and “that there is no-- there
are no audio in attorney/client unless someone at CCA, an
employee, took it upon themselves to turn on the audio. But I
don’t believe it’s recorded. It’s just that it would allow a
particular CCA employee to listen in without recording if-- if the
employee believes something was afoot that he needed to be
aware of.”144
143
144
D.E. 120 at 5; Ex. 438.
Ex. 447 at 11-12.
48
The government then told the Court and counsel, by an August 5
email, that the source of this information was from a “cooperating
inmate and his attorney.” And that “based on the Warden’s
statements, counsel for the government now believes the
information provided by the cooperator was incorrect.”145
The defense asked the USAO to identify this cooperating inmate who knew of
the video and recording practices at CCA. The cooperating inmate’s identity
and the date of the proffer are relevant facts. If the date of the proffer was
before April 12, 2016, then the government knew that “all video footage”
would include attorney-client visitation. That is a critical point that the
government has not addressed and that the defense has not discovered. It is
this sort of question that a Special Master can answer only if she has access
to information in the government’s control.
145
Ex. 445.
49
Conclusion
Both the evidence before the Court and the government’s response
compels a Special Master with authority to conduct a broad inquiry with the
procedural protections commended by the Tenth Circuit. Just the history of
the government’s representations should give the Court pause, at least
because its conduct with Ms. Rokusek cannot be squared with its later
equivocations. Enough questions remain unanswered, or unsatisfactorily
answered, to justify a Special Master to determine the scope of the
constitutional, legal, and ethical violations.
s/Melody Brannon
District of Kansas
Phone: 785/232-9828
Fax: 785/232-9886
50
I hereby certify that on September 2, 2016, I electronically filed the
foregoing with the clerk of the court by using the CM/ECF system which will
send a notice of electronic filing to the following:
Erin S. Tomasic
Debra L. Barnett
Criminal Chief
Duston J. Slinkard
Office of the United States Attorney- Topeka
duston.slinkard@usdoj.gov
John Jenab
Jenab Law Firm, PA
David J. Guastello
Jason P. Hoffman
Hoffman & Hoffman
51
Michael M. Jackson
jacksonmm@aol.com
Cynthia M. Dodge
cindy@cdodgelaw.com
Shazzie Naseem
Rokusek Law, LLC
Jonathan L. Laurans
jlaurans@msn.com
s/ Melody Brannon
Melody Brannon
52
Case
2:16-cr-20032-JAR Document 130-1 Filed 09/02/16 Page 1 of 302
EXHIBIT LIST
United States v. Black, et al., Case No. 2:16-cr-20032-JAR
Motion for Return of Property Pursuant to Fed. R. Crim. P. 41(g)
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Description
Offered Admitted
Evacuation Diagram of rooms at CCA
Room 107A Hallway
Room 107A Intercom
Room 107B & 107 Hallway
Room 107B Intercom
Room 107 Camera
Room 107 Intercom
Visitation hallway
Visitation hallway
Visitation hallway
Room 4 Camera
Room 4 Intercom
Room 5 Intercom
Room 5 Camera
Room 6 Table
Room 6 Table
Room 6 Table
Room 6 Intercom
Room 6 Camera
Visitation Hallway Intersection
Room 7 Intercom
Room 7 Camera
Room 7 Light
Room 8 Light button
Room 8 Intercom
Room 8 Camera
Room 9 Camera
Room 9 Intercoms & light button
Visitation Hallway-Room 8 & 9 lights
Visitation Hallway-Room 7 & 8 lights
Visitation Hallway-end
Foyer & bathroom area
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Case
EXHIBIT LIST
United States v. Black, et al., Case No. 2:16-cr-20032-JAR
Motion for Return of Property Pursuant to Fed. R. Crim. P. 41(g)
Exh.
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Description
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Investigative Report of Zay Thompson
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CCA - Protecting Inmate Rights
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CCA Policies Produced by 17(c) Subpoena
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Affidavit of Michael Bussell
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Grand Jury Subpoena
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Index
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Index w Properties
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Email string: Rokusek/Tomasic/Flannigan re viewing
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videos of attorney-client conferences
Email string: Rokusek/Tomasic re asserting attorneyx
client privilege in videotaped conferences
Email from Barnett relaying information from USM
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Deputy Oberly
Email from USMS, WDMO re CCA videotapes
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attorney-client conferences
Email: Tomasic to Black counsel and Bonnie Wiest re
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videotapes of attorney-client conferences
Email string: Tomasic/Shaneyfelt re USAO created
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videotape index
Transcript of July 22, 2016 Status Conference, United
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States v. Black [pp 5-6: index] [pp 11-12: videos][pp
15, 23 additional defendants]
CV of Professor Peter Joy
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Index of recorded attorney-client phone calls
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PROPOSED DEFENSE EXHIBITS
Transcript, United States v. Huff (May 16, 2016)
Affidavit of Gary Hart (to be provided)
Email from Tomasic to Judge Robinson
(Aug. 22, 2016)
Email from Brannon to Barnett (Aug. 3, 2016)
Transcript, United States v. Wright (Aug. 5, 2016)
Email from Oakley re: phone calls (Aug. 18, 2016)
Transcript, United States v. Huff (Aug. 22, 2016)
Transcript, United States v. Benimon (Aug. 22, 2016)
Email from Craig Beam (Aug. 5, 2016)
Witness
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Jackson
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Affidavits from CJA attorneys ʹ Christopher Joseph, Kathleen Ambrosio, Robert Calbi, Cynthia Dodge,
John Jenab, Deb Vermillion, Michael Jackson, Jackie
Rokusek, Tom Haney, Robin Fowler, Thomas
Email from CCA local counsel with CCA inmate intake form(Aug. 24, 2016)
Docket sheet excerpts, United States v. Dertinger
Transcript, United States v. Black et al. I (Aug. 9, 2016) Transcript, United States v. Black et al. II (Aug. 16, 2016) 460
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From:
To:
Cc:
Date:
Subject:
Melody Brannon/KSF/10/FDO
"Barnett, Debra (USAKS) 1" <Debra.Barnett@usdoj.gov>, "Dustin Slinkard"
<Duston.Slinkard@usdoj.gov>
Kirk Redmond/KSF/10/FDO@fdo, "Melanie Morgan" <mmorgan@morganpilate.com>, Laura
Shaneyfelt/KSF/10/FDO@fdo
08/03/2016 10:36 PM
CCA Recording Attorney/Client Meetings
Deb and Duston,
This is just a heads up on what we plan to file tomorrow. We learned today that CCA
records--not just monitors--meetings between attorneys and clients in some, if not
most, of the visitation rooms. And we understand that these recordings are available to
the USAO for review, although we are not sure of the means.
After some research, it appears that we cannot ethically visit with our clients under
these circumstances, we must let them know of the recording, and that we cannot fail to
act immediately.
Tomorrow, at any Rule 5 hearing, we will ask the Court to set conditions of release for
our clients, regardless of other circumstances, because they have no meaningful and
confidential access to counsel at CCA. Further, we intend to file motions in pending
cases before each of the District Courts with similar requests.
If we missed something about this or are wrong, please let us know, because we would
rather fix it than fight a meaningless battle. Feel free to call if you want to talk before
tomorrow at noon. Otherwise, talk to you then.
Melody and Kirk
Sent from Surface
453
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Dear Judge Robinson:
Pursuant to the Court's Order, attached please find letter
and email communications sent to those persons and entities
to whom recorded CCA-Leavenworth calls were made available.
The letters and emails were sent within 24 hours of the
Court's Order.
455
The persons whom the calls were made available are the
following Defense Attorneys: John Jenab, David J. Guastello,
Cynthia M. Dodge, Jason P. Hoffman, and Michael M. Jackson.
Additionally, the recordings were made available to the
following entities: Kansas Bureau of Investigation, United
States Secret Service, United States Marshals Service, and
Internal Revenue Service-Criminal Investigations. We
specifically notified Special Agents John Seubert (Secret
Service), Glen Virden and Jeff Stokes (KBI), Henry Herron
(IRS), and Zachary Howard (USMS), whom we know were provided
access to the recordings. However, as indicated in the email
to the agents, we asked them to provide us with the names of
any other agents from their respective agency who were
provided access to the recordings. As soon as we receive
completed responses, we will notify the Court.
Chris Oakley
(See attached file: Letter to counsel re Court's Clawback Order.pdf)(See attached file:
Email to Agents re CCA Recorded Phone Calls.pdf)[attachment "Letter to counsel re
Court's Clawback Order.pdf" deleted by Laura Shaneyfelt/KSF/10/FDO] [attachment
"Email to Agents re CCA Recorded Phone Calls.pdf" deleted by Laura
Shaneyfelt/KSF/10/FDO]
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FW: Follow up from hearing re CCA recordings
Alyssa Brockert
History:
to: laura_shaneyfelt@fd.org
08/24/2016 11:03 AM
This message has been replied to and forwarded.
9 attachments
J Pod.jpg
C Pod on the phone.jpg
W pod.jpg
C pod position on phone.jpg
W Pod 3.jpg
C Pod.jpg
C Pod 2.jpg
W pod 2.jpg
Intake attorney client correspondence.pdf
Ms. Shaneyfelt,
I apologize - I thought I had included you in the below e-mail, but apparently
did not add you as a recipient. I am sorry for that oversight, but my
response to your questions are below.
Please let me know if you need anything else.
Thanks,
Alyssa Brockert
-----Original Message----From: Alyssa Brockert
Sent: Friday, August 19, 2016 5:05 PM
To: 'Shew, Dianna' <Dianna.Shew@cca.com>; 'linda.thomas2@cca.com'
<linda.thomas2@cca.com>
Subject: FW: Follow up from hearing re CCA recordings
Ms. Shaneyfelt,
When an inmate first arrives at CCA, he or she goes through an intake process,
during which he or she is given a handbook of CCA policies and procedures.
Included in that intake is instruction concerning the procedures for phone
calls with attorneys.
The handbook states provides that:
"Your attorney may request of our facility that calls to their office not be
recorded to ensure Attorney/Client privilege. They may request this by way of
sending CCA/LDC a fax on their office letterhead. This request must include
contact information and signature. They may fax it to (913) 727-2231. IT IS
YOUR RESPONSIBILITY TO ENSURE THAT YOUR ATTORNEY IS AWARE OF THIS PROCEDURE;
THEIR TELEPHONE CALLS ARE SUBJECT TO BEING RECORDED IF THEY DO NOT REQUEST
THEY BE RESTRICTED."
While Chief of Security Roger Moore will process a request to restrict
attorney phone calls if he receives one, it is CCA's preference that the
request go to the front office via the above-referenced fax number.
As noted in the handbook, CCA does not proactively provide this information to
460
attorneys, although if asked they are happy to refer them to the procedure.
Inmates are NOT allowed to provide attorney names and numbers at intake - the
request must come from the attorney's office on office letterhead in order to
verify that the person making the request is, in fact, an attorney. It would
be difficult to verify the veracity of the inmate's information otherwise.
Even if an attorney has not requested his or her calls be blocked, he or she
can still schedule an unmonitored call by contacting the facility and
scheduling an unmonitored call with the inmates corrections counselor. In the
alternative, the inmate may also request an unmonitored phone call from their
corrections counselor. At intake, after receiving information pertaining to
phone privileges, inmates sign an acknowledgment form, also attached, which
provides:
"Corrections Corporation of America reserves the authority to
monitor...conversations on any telephone located within its
institutions....[a]n inmate's use of institutional telephones constitutes
consent to this monitoring. A properly placed phone call to an attorney is
not monitored. You must contact your unit team to request an unmonitored
attorney call."
Finally, I am attaching several pictures of the signs posted in the various
telephone areas, including those posted on the actual phones.
I believe this answers all of your questions, but if you need anything
further, please don't hesitate to contact me.
-----Original Message----From: Laura Shaneyfelt [mailto:Laura_Shaneyfelt@fd.org]
Sent: Wednesday, August 17, 2016 1:08 PM
To: Mike Crow <MikeCrow@crowlegal.com>
Subject: Follow up fr om hearing re CCA recordings
Mr. Crow,
Thank you for attending the hearing in Kansas City yesterday and inviting
counsel to contact you with questions. As the CJA Resource Counsel in the
District of Kansas I provide information to many attorneys who represent
clients housed at CCA-Leavenworth. I would like to tell them what, if
anything, they and/or their clients need to do to ensure that their
attorney-client telephone calls are not recorded. I have received conflicting
information about this and hope that you can clarify.
I have been told that if the attorney sends his phone number(s), on
letterhead, to Chief of Security Roger Moore, that the numbers will be added
to the Securus system and all calls--incoming and outgoing--to the listed
numbers will be exempted from recording. Is that accurate? Have there been
postings or publications or correspondence to notify attorneys of this
requirement?
We heard in court yesterday, that clients may provide their attorney's phone
numbers during orientation. Is that accurate? Please send me a copy of that
form so that we can advise our clients about the requirement. Has this form
been used for very long?
Also, we heard yesterday that clients just have to tell someone, prior to
making the call to an attorney, that it should be a confidential call, and the
call will not be recorded. Is that accurate? Please send the orientation
materials/instructions/handbook/signs or whatever else tells inmates about
this requirement.
Finally, can you send me a copy or photograph of the signs or notices that
have been, or are now, by the phones that are used by inmates to make outside
calls?
Again, I'm glad that you were able to attend the hearing yesterday. Please do
not hesitate to call me if you have questions. My cell number is below.
Laura Shaneyfelt
CJA Resource Counsel
Federal Public Defender Office
laura_shaneyfelt@fd.org
(316) 269-6126 (office)
(316) 761-3652 (cell)
461
Plaintiff,
v.
LORENZO BLACK,
KARI CARTER,
ANTHON AIONO,
ALICIA TACKETT,
CATHERINE ROWLETTE,
DAVID BISHOP,
Defendants.
SUPPLEMENT TO REPLY (D.E. 130) TO GOVERNMENT’S
RECOMMENDATION RELATED TO SCOPE OF SPECIAL MASTER
(D.E. 120) AND GOVERNMENT’S RESPONSE TO MOTION TO
IMPOUND EVIDENCE (D.E. 121)
After filing the Reply on September 2, 2016, we received additional
information that Corrections Corporation of America (CCA) records attorneyclient phone calls, even when the attorney’s telephone number had been
entered into CCA’s registry as a private number. This is contrary to CCA’s
representations. It is contrary to the government’s representations. And it
defeats the government’s last bastion of defense.
1
Gary Hart is a long-time criminal defense attorney who regularly
practices in the United States District Courts in Kansas and the Western
District of Missouri. He is on the CJA panel in both districts. Beginning in
2001, he submitted his phone number to CCA and specifically asked that
phone calls from his clients at CCA not be recorded. He was assured, in
writing, that the calls would not be recorded.
On August 19, 2016, Mr. Hart subpoenaed Securus, the phone company
serving CCA, for records of phone calls made by his clients from CCA to his
office phone number. Under the agreement with CCA, none of these calls
should have been recorded. He specifically sought records for calls made by
his client Domingo Uriate between April 2015 and April 2016 to AFPD Tom
Bartee and CJA panel attorney Tricia Bath, who had both previously
represented Mr. Uriate in the same case.
In response to the subpoena, Mr. Hart received recordings of calls made
by his clients to his office phone number—calls which he had been assured
would not be recorded.
He also received recorded calls from Mr. Uriate to the Federal Public
Defender and Ms. Bath. Before this, the FPD understood that calls with FPD
clients from CCA would not be recorded. Before this, Ms. Bath’s firm had
2
taken steps to make certain that their attorney-client calls would not be
recorded.
And, finally, the records sent to Mr. Hart by Securus include recorded
phone calls between the FPD and FPD clients other than Mr. Uriate.
Mr. Hart has detailed all of this in the attached Affidavit, including his
written requests to register his phone number and the confirmation he
received from CCA.
The government’s claimed waiver of attorney-client privilege crumbles
in light of this new information. The government’s last resort—that the
defendants or counsel had an affirmative obligation to tell CCA to forgo
recording attorney-client phone calls—fails because there was no mechanism
by which to ensure that the calls were not recorded.
As with the other late and seemingly endless revelations, this creates
more questions and the government offers no answers. To date, the
government has still not explained how they got the attorney-client phone
calls in the first place. To date, the government has not denied knowing about
the attorney-client phone calls. To date, the government has not denied
listening to the attorney-client phone calls. The government has been
evasively and markedly silent in response to rather damning evidence of
Sixth Amendment violations. As with the other late and seemingly endless
3
revelations, this compels a Special Master with authority to investigate the
new developments.
s/Melody Brannon
District of Kansas
Phone: 785/232-9828
Fax: 785/232-9886
4
I hereby certify that on September 6, 2016, I electronically filed the
foregoing with the clerk of the court by using the CM/ECF system which will
send a notice of electronic filing to the following:
Erin S. Tomasic
Debra L. Barnett
Criminal Chief
Duston J. Slinkard
Office of the United States Attorney- Topeka
duston.slinkard@usdoj.gov
John Jenab
Jenab Law Firm, PA
David J. Guastello
Jason P. Hoffman
Hoffman & Hoffman
5
Michael M. Jackson
jacksonmm@aol.com
Cynthia M. Dodge
cindy@cdodgelaw.com
Shazzie Naseem
Rokusek Law, LLC
Jonathan L. Laurans
jlaurans@msn.com
s/ Melody Brannon
Melody Brannon
6
Plaintiff,
vs.
LORENZO BLACK,
KARL CARTER,
ANTHON AIONO,
ALICIA TACKETT,
CATHERINE ROWLETTE,
and
DAVID BISHOP,
Defendants.
)
)
)
)
) Case No. 16-20032-JAR
)
)
)
)
)
)
)
)
)
)
UNITED STATES’ SUPPLEMENTAL MEMORANDUM IN SUPPORT OF PROPOSED
ORDER TO APPOINT A SPECIAL MASTER, AND OFFER TO PRESENT EVIDENCE
The United States of America, by and through undersigned counsel, responds to the Federal
Public Defender Office’s (FPD’s) Memorandum in Support of Proposed Order to Appoint a
Special Master (doc. 119). The parties agree the Special Master should be given the following
duties:
•
Excise and retain video recordings of attorney-client meetings at CCA;
•
Provide copy of video recordings without attorney-client meetings to the government and
Coordinating Discovery Counsel;
•
1
Excise and retain audio 1 recordings of attorney-client telephone conversations at CCA;
In the government’s Response to the FPD’s Motion to Impound Additional Government
Evidence, the government suggested that because the recorded inmate calls are not privileged, they
should not be subject to review by a Special Master. (Doc. 121, at 8.) The government maintains
that those calls are not privileged. In the interest of resolving this matter in an efficient manner,
•
Provide copy of audio recordings without attorney-client conversations to the government
and Coordinating Discovery Counsel;
•
Identify any privileged attorney-client communications in the computers seized from
CCA’s inmate law libraries and excise any such communications; 2 and
•
Provide image of law library computers without attorney-client communications to the
government and Coordinating Discovery Counsel.
The government opposes, however, the FPD’s assertion that the unusual circumstances
here give rise to exceptional conditions warranting a review by the Special Master of the policies
and practices of the United States Attorney’s Office.
With respect to the hearing scheduled for September 7, the government offers to present
evidence through witnesses or by proffer.
The government also submits the attached proposed Order Appointing a Special Master for
the Court’s consideration.
I. Request for an Opportunity to Present Evidence
The FPD acknowledges that this matter has been fast-moving. On Friday, August 5, 2016,
the FPD filed a Motion for Return of Information pursuant to Fed. R. Crim. P. 41(g) as a movant
in this case. (Doc. 82.) The FPD requested an emergency hearing, and the matter was set for
hearing on Tuesday, August 9, 2016. Since joining this case as a movant, the FPD has filed the
following additional motions: Motion for Access to Visitation Rooms at CCA (Doc. 83); Motion
to Produce Witnesses pursuant to Fed. R. Crim. P. 17(b) (Doc. 84); Amended Motion for Fed. R.
however, the government now concurs with the FPD that any recorded inmate calls made to an
attorney should be excised and retained by the Special Master.
2
Based on discussions with defense counsel, the data retrieved from the law library computers
has not been reviewed by anyone to date, and has not been sent out in discovery.
2
Crim. P. 41(g) Return of Information (Doc. 85); Motion to Produce Records from CCA Pursuant
to Fed. R. Crim. P. 17(c) (Doc. 91); Motion for Court to Impound Additional Government
Evidence (Doc. 105); Memorandum of Law in Support of Motion for a Special Master (Doc. 106);
and Memorandum of Law in Support of Proposed Order to Appoint a Special Master (Doc. 119);
and Reply to Government’s Recommendations Related to Scope of Special Master and
Government’s Response to Motion to Impound Evidence (Doc. 130).
For instance, the
government was provided only hours to review the FPD’s Motion to Impound Additional
Government Evidence before the FPD proceeded to argue the motion before the Court on August
16th.
The evening before the August 16th hearing, the government filed its initial response that
reserved its right to present evidence (Doc. 110 at 13, 15). In addition, at the outset of the August
16th hearing, AUSA Debra Barnett suggested that another hearing may be appropriate to address
the FPD’s Motion to Impound Additional Government Evidence (Doc. 105), as the motion was
filed on the eve of the August 16th hearing. In preparation for the September 7th hearing, the
government issued subpoenas beginning September 1st to local and out-of-state witnesses and
began meeting with several witnesses early on September 2nd in the event evidence is needed at
the hearing. The government believes this evidence will address some of the outstanding questions
of fact and help the Court and any Special Master with their responsibilities.
As such, the government offers to present evidence in support of this Supplemental
Memorandum, the Government’s Recommendation Related to Scope of Special Master (Doc.
120), and the Government’s Response to FPD’s Motion to Impound Additional Government
Evidence (Doc. 121).
II. Background
3
In September 2015, the Kansas Bureau of Investigation (KBI) began an investigation into
a large-scale conspiracy to introduce contraband and illegal drugs into CCA after a confidential
informant provided information about an inmate selling synthetic cannabis inside the facility.
Shortly thereafter, the United States Marshals Service (USMS), United States Secret Service
(USSS), and Internal Revenue Service-Criminal Investigations (IRS) joined the investigation.
During the investigation, agents learned through interviews of informants housed at CCA, that the
contraband conspiracy involves numerous inmates, along with CCA guards, and other individuals
outside of CCA.
A. Potentially Privileged Material
1. Documents and Legal Mail
On April 8, 2016, agents executed a search warrant inside the CCA facility in Leavenworth,
Kansas and several residences in Missouri. In advance of executing the warrants, the U.S.
Attorney’s Office coordinated with law enforcement officers to designate a “taint team” consisting
of an Assistant United States Attorney and several Internal Revenue Service Agents, who all were
not part of the investigation. At each search location, a taint IRS agent was present to review any
document or other evidence containing potential attorney-client communications.
While searching CCA, the government anticipated that inmates might have legal
documents and written communications with their attorneys in their cells. Based on cooperator
statements and recorded inmate calls, agents believed certain inmates were coordinating with
associates outside the facility to send fake “legal mail” into CCA that contained paper sprayed
with the chemicals commonly known as synthetic cannabis (K-2). The inmates then smoked the
K-2 paper inside CCA. Given those circumstances, the taint agents were tasked with reviewing
legal mail and documents in certain cells to verify whether the papers contained any contraband.
4
As such, the search warrant directed that “all legal mail shall be searched by a member of the ‘taint
team,’ that is, an agent not directly involved in the investigation.”
No potential attorney-client communications were seized by the agents during the searches
of the inmates’ cells.
2. The Law Library Computers
The same day, agents executed a second search warrant authorizing the search and seizure
of several computers located in the law libraries within CCA. The government anticipated these
computers may contain attorney-client communications in the form of letters, memoranda, or
briefs drafted by inmates and sent to their respective attorneys. The search warrant authorized
agents to seize certain data contained in the law library computers using a taint team to review the
data for potential attorney-client communications. Agents seized the computers and placed them
into evidence.
On May 24, 2016, the parties held a meet and confer to address the large volume of
discovery in this case. During the meeting, SAUSA Erin Tomasic informed all counsel of record
that the government was in the process of obtaining all video recordings from CCA from a
particular time frame.
In advance of the meet and confer, SAUSA Tomasic sent an email to all
counsel of record explaining:
Seven computers were seized and imaged from the “law libraries” inside CCA.
Because the computers arguably may contain attorney/client material generated by
the inmates, we should work together to exclude that material from the case agents’
review. I suggest the following procedure:
At the meet and confer, all attorneys should weigh in on search terms to identify
potential attorney/client material. Once those search terms are generated, a “taint”
team of agents will generate all data from the “law library” computers containing
those terms. That data will be provided to defense counsel for review during an
agreed upon time frame. Defense counsel should identify any documents they
believe contain privileged attorney/client material. The “taint” team of agents will
then review the privileged material identified by defense counsel as attorney/client
5
and verify the privilege for the government. All information not identified by
defense counsel as privileged will be reviewed by the case agents as part of
discovery.
Please let me know if you disagree with the proposed procedure.
During the meet and confer, SAUSA Tomasic explained to opposing counsel, based on
cooperator statements, it was believed that inmates used the law library computers to communicate
with each other about drug and contraband trafficking inside the facility. Defense counsel were
particularly concerned that the law library computers could contain communications from
defendants other than those charged in the case, including past clients of the attorneys of record
and inmates represented by other attorneys. The government agreed not to move forward with a
taint team review until the defense attorneys had an opportunity to identify search terms for their
initial review. To date, the law library computers have been digitally imaged, and all data
contained on the computers are ready for review. No one has reviewed the data. 3
3. Video Recordings from CCA
In early March 2016, law enforcement officers and SAUSA Tomasic conducted a lengthy
proffer interview with an inmate regarding drug and contraband smuggling at CCA. The inmate
provided an inside view of a complex network in which a correctional officer smuggled drugs and
contraband into the facility, and a web of inmates coordinated to distribute the contraband to
various other distributors and customers through medical callouts, church, inmate job assignments,
the twelve-step program, and law libraries.
At the conclusion of the proffer interview, the officers spoke at length with the inmate
about the procedures that would be used to conduct a proposed controlled buy within CCA. The
3
As set forth below, the counsel for the government intended to revisit this issue during a meet
and confer on July 21, 2016, but that meet-and-confer was cancelled in lieu of a status hearing
regarding discovery in this case.
6
cooperator explained that he was very concerned about certain correctional officers and a unit
manager being involved in the conspiracy, and he believed the unit manager was reporting to
inmate co-conspirators exactly who was cooperating with the government.
Based on that
information, officers determined that the inmate should not be transported again from CCA 4 in
advance of any controlled buy.
Officers determined the cooperator’s attorney would have to
convey information to the cooperator pertaining to the controlled buy during legal visits at CCA.
The cooperator reported to officers and SAUSA Tomasic that he believed the attorney-client rooms
are video recorded, and the CCA staff can activate audio monitoring without an inmate’s
knowledge. The inmate explained that for these reasons, he was uncomfortable communicating
about the controlled buy at CCA. The cooperator, his attorney, and the officers devised a plan to
communicate during attorney visits at CCA. 5
On April 12, 2016, the government served a subpoena on CCA’s record custodian seeking
“all video footage or still images currently retained by the Corrections Corporation of America
(CCA) depicting any internal or external surveillance video or still image taken between July 2014
and April 12, 2016 at the CCA facility in Leavenworth, Kansas.” The subpoena was broadly
drafted because the investigation revealed a widespread conspiracy to distribute drugs and
contraband within the facility. As set forth above, the investigation revealed that drugs and
contraband were transferred between inmates in the law libraries, medical facility, twelve-step
program, church, and various pods in which inmates are housed. There have been no allegations
4
The proffer interview in early March took place at the U.S. Attorney’s Office in the District of
Kansas. The defendant was facing charges in another district. It became clear that another inmate
had observed this cooperator exit the CCA transport van in Kansas. The cooperator was concerned
that he would be identified as “snitching” about the drugs and contraband at CCA.
5
Ultimately, the controlled buy did not take place, in large part due to concerns for the cooperator’s
safety.
7
that drugs or contraband were distributed in the attorney-client meeting rooms. SAUSA Tomasic,
who signed the subpoena, did not expect or intend to obtain any attorney-client communications.
After the subpoena was served on CCA, an agent with the USSS engaged in protracted
discussions with a representative of CCA regarding how to obtain the extraordinary volume of
video recordings from CCA. Typically, when only particular and limited video recordings are
requested, such as those depicting an assault or limited activity associated with contraband
discovery, CCA burns those recordings to a disc and provides the disc to a law enforcement officer.
CCA ultimately determined that it would provide CCA’s original drives given the technological
constraints and lengthy process associated with generating a copy of “all surveillance footage.”
On or about May 17, 2016, CCA provided six drives, each three terabytes in size, to the
USSS containing video recordings. The USSS generated a copy of the recordings for the U.S.
Attorney’s Office and placed the original set into an evidence vault. No employee of the USSS
viewed any portion of the video recordings provided by CCA. On approximately June 1, 2016, a
copy of the video recordings was delivered to a litigation support specialist at the U.S. Attorney’s
Office, who noticed that the video recordings were not accompanied with a player, so it was not
possible for anyone within this office to view any of the video. On approximately June 6, 2016,
the USSS identified the correct player to personnel within this office so the video recordings could
be played/viewed.
a. The Index to the Video Recordings was prepared by CCA.
On June 6, 2016, an attorney in another case 6 sent an email to SAUSA Tomasic stating:
6
This attorney represents Richard Dertinger, who is charged in an unrelated case (United States v.
Rapp et. al., case number 14-20067-CM). The discovery in Black was provided to counsel for
Dertinger beginning approximately May 23, 2016, because the government intends to seek
sentencing enhancements at Dertinger’s sentencing based on conduct contained in the Black
discovery.
8
[C]an you provide an index for each defendant to guide us concerning: (1) dates;
(2) time ranges; (3) locations; and (4) camera views. If so, how can the material be
excised so we can review those portions in a timely manner. We are eager to get
through the discovery so we can move forward with sentencing.
SAUSA Tomasic responded that she was not in a position to provide an index, but the written
discovery would assist in identifying the pertinent video recordings. Recognizing that an index
would be needed to effectively review the large volume of recordings, SAUSA Tomasic sought to
coordinate with the U.S. Marshals Service and CCA to obtain an index of the video recordings
provided by CCA. On June 10, 2016, CCA provided the index to the U.S. Attorney’s Office via
email (see Government Ex. 9).
On June 29, 2016, SAUSA Tomasic received an email from Michael Jackson, counsel for
Catherine Rowlette, requesting an overview of all the discovery in this case for case budgeting
purposes. The same day, SAUSA Tomasic provided an overview of the status of the discovery to
all counsel, explaining in part:
From defense counsel, I am waiting for 6 drives, each 3 TB in size on which I will
download 18 total TB of surveillance footage. The footage is divided by camera angle,
and we coordinated with CCA to provide a chart showing what is depicted on each camera
angle (ie, which pod, hallway, etc.). ** If you intend to provide 1 single 18 TB drive,
please let me know in advance. I will check with our office litigation support specialist to
verify that will work.
On July 13, 2016, counsel for the government emailed Mr. Jackson and asked that he
coordinate with defense counsel to set up a meet and confer with all counsel of record to discuss
discovery issues. The parties agreed to meet and confer on July 21, 2016. On July 13, 2016, this
Court contacted all counsel of record sua sponte and set a hearing regarding discovery issues for
July 21, 2016 (Doc. 71).
At the outset of the July 21, 2016 status hearing, the Court explained:
So Ms. Shaneyfelt let me know that part of the discovery is quite a volume of
surveillance videos from the CCA. And Ms. Shaneyfelt advised that the AUSA
9
had said that each defense counsel needed to provide six three-terabyte hard drives
in order to download these surveillance videos, which the video, as she understands,
it’s equivalent to about 200 movies. . . . [T]his is quite an expensive undertaking.
[B]ut another concern is there’s no index or directory or any means by which the
video can be sorted, searched, or organized.
(Transcript of July 21, 2016 Hrg., at 4.) In response to the Court’s inquiry, SAUSA Tomasic
explained:
We were not [initially] provided an index from CCA and the U.S. Attorney’s Office
worked with the Marshal Service and CCA and created an index, which is available
to defense counsel and I believe is being provided apart from the surveillance
footage to defense counsel. So we—actually created the index for defense counsel,
and for some time defense counsel has been aware that there was an index.
(Id.) (emphasis added.) At the time this response was given, SAUSA Tomasic was uncertain who
had prepared the index, but knew personnel in her office were securing the index through
cooperation with the USMS and CCA personnel.
The FPD argues that SAUSA Tomasic’s representation demonstrates the U.S. Attorney’s
Office—not CCA—created the index. (See Transcript from Aug. 9, 2016 Hrg., at 14.) However,
SAUSA Tomasic’s statement should be viewed against the backdrop of her communications with
counsel for Mr. Dertinger. SAUSA Tomasic’s statement during the July 21st hearing was intended
to rebut the concern that the government was not providing discovery in a usable format. The
purpose of SAUSA Tomasic’s representation was to show that the government had taken the
additional step, after CCA initially did not provide an index, to work with CCA and the USMS to
create an index.
b. The government did not intend to obtain attorney-client video
recordings from CCA.
Although SAUSA Tomasic heard the inmate’s statement in early March that he believed
CCA may be recording attorney-client meetings before the subpoena for “all video recordings”
was served on CCA, she did not intend to obtain any such recordings in response to the subpoena.
10
Rather, the focus was on obtaining evidence of drug and contraband smuggling within CCA. The
only indication SAUSA Tomasic had that CCA’s video recordings contained attorney-client
meetings was the inmate’s statement of his belief. No CCA employee reported to the government
that CCA recorded attorney-client meetings. SAUSA Tomasic did not view or have knowledge
of the contents of the index until she learned the FPD had expressed concerns about the existence
of the recordings in early August (which was after the meeting with Ms. Rokusek). At that point,
SAUSA Tomasic first examined the CCA video index, at which time SAUSA Tomasic saw that
attorney-client rooms were listed within the index.
In the context of the extraordinary volume of information involved in this large and
complex case, SAUSA Tomasic was not initially mindful of the inmate’s belief that the video
recordings produced by CCA may contain recordings of attorney-client meetings. Near the time
of the July 21, 2016 hearing, 7 SAUSA Tomasic considered for the first time the inmate’s belief
that the video recordings from CCA may contain attorney-client meetings. This consideration,
which was premised solely on the inmate’s earlier statement of belief, in connection with the
manner in which CCA provided the video recordings to this office. Specifically, SAUSA Tomasic
realized around the time of the July 21st hearing that CCA provided the video recordings in an
unfiltered manner to this office because CCA provided the original drives. In hindsight, SAUSA
Tomasic should have been more sensitive to the possibility that CCA footage may contain
attorney-client meetings due to the inmate’s statement and the unfiltered manner in which CCA
provided the footage.
7
SAUSA Tomasic is uncertain of the exact date on which she first recalled the inmate’s belief that
CCA recorded attorney-client meetings. SAUSA Tomasic is certain, however, that she first
recalled that information near the time of the July 21st hearing, or possibly, in response to the
Court’s questioning during the July 21st hearing.
11
KBI Special Agent Jeff Stokes was tasked with viewing portions of the video in support of
the investigation. In mid-July 2016, 8 SAUSA Tomasic instructed Agent Stokes not to review any
video recordings of attorney-client meetings, and to notify her immediately if he encountered
attorney-client video recordings. SAUSA Tomasic and Agent Stokes discussed who would be an
appropriate agent to act as a “taint agent” given the enormous amount of time that would be
associated with reviewing the CCA videos. Agent Stokes did not conduct any in depth review of
the video, and he did not encounter any attorney-client meetings during his review. 9 SAUSA
Tomasic and Agent Stokes did not discuss the review of the recordings again until after the FPD
filed a Motion for Return of Property on August 5, 2016. 10
During the status hearing on July 21st when SAUSA Tomasic publicly stated to the Court
that the 18 terabytes of surveillance footage received from CCA contained recordings of attorneyclient meeting rooms and visitation rooms, (See Transcript from July 21, 2016 Hrg., at 12.), AUSA
Chris Oakley and SAUSA Tomasic recall all counsel for defendants, as well as representatives of
the FPD, Jacquelyn Rokusek, and several other defense attorneys present in the courtroom. 11 No
8
Again, SAUSA Tomasic is uncertain of the exact date on which she had this conversation with
Agent Stokes. She is certain that the conversation took place on the eve of the July 21, 2016
hearing or within a day after the hearing, as she was absent from work the following week, and
Agent Stokes was absent from work the majority of the week thereafter.
9
Agent Stokes briefly viewed a portion of the CCA recordings that contained approximately
sixteen camera views on his screen at one time. One of those sixteen camera views depicted an
empty interview room, and he is certain there were no attorney-client meetings occurring at the
time.
10
SAUSA Tomasic was on medical leave between Monday, July 25 and Friday afternoon, July
29, 2016, and Agent Stokes was on vacation from Monday, August 1 to Friday, August 5, 2016.
Agent Stokes returned from out-of-town vacation on the afternoon of August 3, 2016 to testify at
a contested sentencing hearing in United States v. Huff (case number 14-20067-CM). Based on a
scheduling issue, the hearing was continued before Agent Stokes was called to testify. After the
hearing was continued, Agent Stokes immediately returned to his vacation.
11
In a previous pleading, the FPD incorrectly stated, “On August 5, 2016, the Federal Public
Defender learned that our privileged communications with clients at CCA Leavenworth have been
recorded by CCA staff and, at times, provided to the government upon request.” (Amended
12
one in the courtroom asked for clarification following this statement by SAUSA Tomasic
regarding the video recordings available from CCA. During the hearing, SAUSA Tomasic spoke
privately with John Jenab, counsel for Lorenzo Black, and asked whether she should address
potential privilege issues regarding the law library computers. She and Mr. Jenab agreed the matter
should first be addressed at the next meet-and-confer between the parties before bringing the matter
to the Court’s attention.
In sum, when SAUSA Tomasic recognized the video recordings likely contained attorneyclient meetings, she notified Agent Stokes not to review any such footage, and explained to Agent
Stokes that any review of the video would need to be conducted by a taint team. On July 21, 2016,
SAUSA Tomasic stated to the Court, the FPD, Ms. Rokusek, and all parties in this case that the
government had the recordings. On August 5, 2016, SAUSA Tomasic and AUSA Oakley met
with Shazzie Naseem, who was appointed the previous day as the Coordinating Discovery
Attorney in this case. During the meeting, AUSA Oakley and SAUSA Tomasic explained the
scope of discovery at issue in this case; they identified the potential for privileged communications
on the law library computers; they identified the potential for privileged communications on the
CCA video recordings; and they explained that Ms. Rokusek was in the process of reviewing the
Motion for Return of Information, Doc. 85, at 1.) The FPD incorrectly represented during the
August 9, 2016 hearing that the existence of the video recordings “came to light last week” after a
meeting at the U.S. Attorney’s Office. (Transcript from Aug. 9, 2016 Hrg., at 8.) Ms. Rokusek
mistakenly testified, “the first time that I was made aware of it [the video recordings of attorneyclient meetings] was in early August.” (Id. at 41.) Ms. Rokusek made a similar misstatement in a
pleading, “On August 2, 2016, [I] learned that the United States Attorney’s Office for the District
of Kansas had access to privileged communications with my clients at CCA Leavenworth.
Specifically, attorney/client visits have been recorded by CCA staff and, at times, provided to the
government upon request.” (Motion to Join, Doc. 92, at 1.) However, SAUSA Tomasic had
mentioned the existence of the recordings in court on July 21st, at least ten days earlier.
13
video recordings at the U.S. Attorney’s Office to determine whether the recordings contained
attorney-client meetings.
At the time SAUSA Tomasic met with Mr. Naseem, she was aware that CCA had recently
represented that the attorney-client rooms were not video recorded. SAUSA Tomasic was also
aware that the FPD, in light of CCA’s representation, stated in an email to U.S. Attorney’s Office
supervisors, several defense attorneys, and others:
So this is where we are: CCA and the USM say that the attorney/client meetings
are not recorded and the USAO says that they have, in their custody, recordings of
the attorney/client meetings at CCA that are to be distributed to counsel. Those
two positions are irreconcilable.
The first problem is that, as you noted, there have been changes to the security
system in the last few months . . . .
...
So serious problems remain, although perhaps in a different context. These
representations that the USAO has in its possession recordings of attorney/client
meetings were made in court with two AUSAs and the USAO IT person. The outof-court representations were made by an AUSA and her supervisor.
If the USAO’s repeated representations were inaccurate, please assure us, in
writing, that your office has reviewed the videotapes from CCA and that they
contain no attorney/client meetings. If that is done, we can then proceed to address
the credibility issues.
Based on CCA’s representations and the FPD’s concerns, SAUSA Tomasic and AUSA Oakley
began to doubt the existence of attorney-client video recordings and reported to Mr. Naseem that
they were uncertain whether those recordings existed.
The FPD argues that the government could not have inadvertently obtained the video
recordings from CCA. In support of this argument, the FPD relies on inaccurate representations
and irreconcilable positions. First, at the August 9, 2016 hearing, Federal Public Defender Melody
Brannon stated:
14
We’re never given notice of the recordings. We’re never given notice of the
subpoenas. It’s by happen chance in this case because the U.S. Attorney was
actually using the videotapes against counsel and against defendants that it really
came to light and began to develop.
(Transcript from Aug. 9, 2016 Hrg., at 13.)
The government—not the FPD or any defense counsel—first brought the existence of the
video recordings to the attention of the Court and the parties.
SAUSA Tomasic engaged defense counsel regarding how to handle the potentially
privileged communications within the law library computers. It is simply not logical to suggest
that SAUSA Tomasic persisted in efforts to provide defense counsel with the CCA video
recordings if she was mindful that those recordings contained footage of attorney-client meetings.
If, in fact, the government was hiding the existence of those recordings, or intended to use the
recordings to gain a strategic advantage of some sort, the government would not have been so
persistent in their efforts to turn over the recordings to defense counsel.
Rather, the inmate’s prior statement regarding his belief of potential CCA attorney-inmate
recordings just did not occur to SAUSA Tomasic until near the time of the July 21st hearing.
Around that same time, SAUSA Tomasic instructed Agent Stokes to avoid reviewing any video
recordings of attorney-client meetings as review of those videos should be handled by a taint team.
B. August 2, 2016 Meeting with Jacquelyn Rokusek
On August 2, 2016, AUSA Kim Flannigan and SAUSA Tomasic met with Jacquelyn
Rokusek, attorney for Richard Dertinger. The purpose of the meeting was to discuss a potential
conflict of interest that had come to the attention of the government. 12 SAUSA Tomasic explained
12
Before a hearing on February 9, 2016, in Richard Dertinger’s case, AUSA Flannigan contacted
Ms. Rokusek to explain that in her client’s case, one of the case agents had been promoted and
was now working directly subordinate to Ms. Rokusek’s husband, who is a Captain at the Johnson
County Sheriff’s Office. AUSA Flannigan explained that, in her own experience, she obtains a
15
to Ms. Rokusek that a motion to determine conflict had been prepared based on certain facts that
had come to light. Government counsel believed a meeting to discuss the situation before filing
any such motion was most appropriate to ensure crucial information was not overlooked, and based
on the proactive outcome before the February 9, 2016 hearing in that case.
SAUSA Tomasic explained that two cooperators in the Black case had alleged Dertinger’s
attorney told Dertinger about a proffer statement against Dertinger regarding the CCA drug and
contraband investigation. AUSA Flannigan explained that she and SAUSA Tomasic were not
making any accusations against Ms. Rokusek. SAUSA Tomasic explained that the merits of the
accusations do not bear on the conflict of interest analysis.
SAUSA Tomasic then showed Ms. Rokusek two cooperator statements.
The first
cooperator (C-1) stated that Dertinger told C-1 that he went to a meeting with his attorney where
his attorney identified people who were under investigation for drug and contraband trafficking.
According to C-1, another inmate dropped out of the conspiracy after Dertinger shared that this
inmate was under investigation. The second cooperator (C-2) stated that Dertinger stated he met
with his lawyer at a legal visit where Dertinger’s lawyer told him that “John Doe” 13 was providing
information to the government about the defendant, [Karl] Carter, and a few other inmates
smuggling drugs into CCA. C-2 also stated that Dertinger reported his lawyer told him “they”
(law enforcement officers) were looking into it.
waiver when handling cases with her ex-husband, defense attorney Robin Fowler, to avoid any
issues of conflict in the proceedings. Ms. Rokusek agreed it would be prudent to present the
information to her client and obtain a waiver on the record. At the February 9, 2016 hearing, Ms.
Rokusek made such a record, and the client waived any potential conflict. At no point did the U.S.
Attorney’s Office attempt to disqualify Ms. Rokusek based on this matter. At the February 17,
2016 hearing in the same case, no one on behalf of the government asserted any type of conflict
of interest for Ms. Rokusek.
13
This moniker is used to protect the identity of the cooperator.
16
Ms. Rokusek read the two proffers and explained that she never gives out proffer reports.
Ms. Rokusek explained that she had not even accessed the proffers provided in “the CCA case.”
(United States v. Black et al.). SAUSA Tomasic explained that the “John Doe” proffer report was
disclosed to Ms. Rokusek as part of her representation of Petsamai Phommaseng (case numbers
14-20014-JAR; 15-20006-JAR; 15-20020-JAR). SAUSA Tomasic provided Ms. Rokusek with a
copy of the discovery letter showing Ms. Rokusek received a copy of “John Doe’s” proffer report
on November 7, 2015. SAUSA Tomasic then showed Ms. Rokusek a copy of “John Doe’s”
September 2015 proffer report.
SAUSA Tomasic explained that she reviewed Dertinger’s
discovery and did not identify “John Doe’s” September 2015 proffer report as being distributed in
that case. SAUSA Tomasic asked Ms. Rokusek to double-check that it was not sent out in
Dertinger’s case, and Ms. Rokusek agreed she would check.
As set forth in the September 2015 report, “John Doe” agreed to provide information to the
government. John Doe stated that Dertinger was selling synthetic cannabis (K-2) inside CCA and
explained in particularity how he did so.
Kan. R. Prof. R. 3.7 identifies when an attorney may have a conflict of interest when the
attorney may also be a witness. SAUSA Tomasic explained that the commentary following Rule
3.7 suggests that the attorney who may have a conflict under this rule should first evaluate whether
he/she has a conflict.
3.7 Advocate: Lawyer as Witness
(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to
be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the
case; or
17
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as an advocate in a trial in which another lawyer in the
lawyer's firm is likely to be called as a witness unless precluded from doing so by
Rule 1.7 or Rule 1.9.
Kan. R. Prof. R. 3.7.
United States v. Evanson, 584 F.3d 904, 909 (10th Cir. 2009), is a case on point to the
issues here as it involved an attorney found to have a conflict of interest because he would be
acting as an “unsworn witness” to the litigation even if he was not called as a witness. SAUSA
Tomasic stated that because Ms. Rokusek would be placed in the untenable position of crossexamining the two cooperators making accusations against her, that gave rise to the potential
conflict of interest. AUSA Flannigan and SAUSA Tomasic reiterated that that merits of whether
she committed these acts was not going to be at issue in determining the conflict.
In evaluating next steps to analyze the situation, AUSA Flannigan suggested that Ms.
Rokusek may wish to consult with Kansas Disciplinary Administrator Stan Hazlett.
With respect to an evaluation of the claims by the two inmates, SAUSA Tomasic explained
that an agent was in the process of viewing CCA video recordings to corroborate the cooperators’
statements. The agent intended to use CCA’s visitation log to view footage of Dertinger within
the inmate pod(s) after the time of Ms. Rokusek’s visits with Dertinger. SAUSA Tomasic
explained that the agent was looking at video recordings from inside CCA around the time of Ms.
Rokusek’s visits to see Dertinger’s actions and the other inmates’ actions after he met with Ms.
Rokusek. It was never the government’s intent to view Dertinger’s meetings with Ms. Rokusek.
SAUSA Tomasic explained that, thus far, the agent had only found video of Dertinger walking
down the hall near the time of one of Ms. Rokusek’s visits. SAUSA Tomasic explained that the
agent was also tasked with locating attorney-client video recordings, which meant the agent was
18
to ascertain whether any such videos had been provided by CCA. 14 Ms. Rokusek asked if she
could have some time to decide on a course of action, and the parties agreed that a week was
sufficient time. The meeting was concluded in a collegial manner. Contrary to Ms. Rokusek’s
testimony at the August 9, 2016 hearing on this matter, 15 neither SAUSA Tomasic nor AUSA
Flannigan stated that they intended to view or have a case agent view the attorney-client room
video, nor did they intend to view the attorney-client room video to see if Ms. Rokusek handed
something to her client.
C. United States v. Huff
In United States v. Ashley Huff (D. Kan. No. 14-20067-CM), the government made
representations at the May 16, 2016 hearing that were not based on any direct attorney-client
communications. Ms. Huff’s attorney would also be able to report that Ms. Huff repeatedly
recounted her interactions with her attorney to friends and family on recorded inmate phone calls,
14
This was the second time SAUSA Tomasic notified Ms. Rokusek that the government was in
possession of CCA recordings including footage of attorney-client meetings. Ms. Rokusek did not
seek clarification at this time nor did she inquire about the procedure that would be used in
handling the video recordings of attorney-client meetings. And SAUSA Tomasic did not explain
the taint team procedure that had been employed, and would have continued to be employed, in
the Black case. Specifically, SAUSA Tomasic did not explain that Agent Stokes was locating the
relevant footage, after which the footage was to be turned over to a taint team. Based on this
undeveloped communication, Ms. Rokusek appears to have mistakenly assumed the agent was
tasked with actually viewing video recordings of attorney-client meetings.
15
Ms. Rokusek testified that she was told by AUSA Flannigan “[t]hat the case agent was reviewing
the videos to determine whether or not I had provided the document and that all he had seen so far
was me walking down the hall.” (Transcript from Aug. 9, 2016 Hrg., at 35 & 49.) AUSA
Flannigan, although a supervisor in the Kansas City U.S. Attorney’s Office, was not involved in
handling discovery in the Black case. At the time AUSA Flannigan met with Ms. Rokusek, she
was completely unaware that CCA may have or did produce any video recordings of any attorneyclient meetings as part of the Black case. AUSA Flannigan only became aware of the attorneyclient videos after SAUSA Tomasic explained, during the meeting with Ms. Rokusek, that Agent
Stokes was in the process of locating the videos. Further, at the time of the meeting, AUSA
Flannigan was generally aware of the issues surrounding the potential conflict, but she had not
read C-1 and C-2’s proffer reports.
19
knowing that those phone calls were recorded and monitored. As far back as January 2016,
SAUSA Tomasic informed both Ms. Huff’s attorney and Tom Bartee, an Assistant Federal Public
Defender who acts as a mentor to Ms. Huff’s attorney, Ms. Huff repeatedly relayed
communications to third parties about her communications with her attorney on recorded CCA
inmate calls. In other words, none of the information provided by the government during the May
16 hearing came from communications between Ms. Huff and her counsel.
Any use of the May 16, 2016 hearing to support a suggestion that SAUSA Tomasic listened
to and used direct attorney-client communications is false. However, the transcript from an August
3, 2016 hearing in Ms. Huff’s case, again addressed these same recorded calls between Ms. Huff
and third parties, which provides additional helpful information. The August 3rd hearing clearly
shows that the parties to these recorded inmate calls were Ms. Huff and an unidentified male friend.
The transcript from the hearing reveals that Ms. Huff’s attorney was aware the referenced inmate
calls were between Ms. Huff and another individual, not Ms. Huff and her attorney. Therefore,
nothing in the Huff case was about recorded attorney calls, but rather Ms. Huff’s statements in
other calls recounting her conversations with her attorney to third parties.
D. Additional relevant facts related to CCA’s recording of inmate phone calls 16
When an inmate first arrives at CCA, the inmate goes through an intake process. During
the process, the inmate is provided a handbook containing CCA’s policies and procedures. The
handbook states:
Your attorney may request of our facility that calls to their office not be recorded
to ensure Attorney/Client privilege. They may request this by way of sending
CCA/LDC a fax on their office letterhead. This request must include contact
information and signature. They may fax it to (913)727-[ ]. IT IS YOUR
16
The government has, through CCA’s counsel, learned of the following facts related to CCA’s
recording procedure. It is the understanding of the government that that the FPD was notified of
the majority of these facts by CCA counsel via email on August 19, 2016.
20
RESPONSIBILITY TO ENSURE THAT YOUR ATTORNEY IS AWARE
OF THIS PROCEDURE; THEIR TELEPHONE CALLS ARE SUBJECT TO
BEING RECORDED IF THEY DO NOT REQUEST THEY BE
RESTRICTED.
(Doc. 121, Ex. A) (emphasis in original.) Inmates are not allowed to provide an attorney’s name
and number at intake—the request must come from the attorney’s office on letterhead to verify
that the number actually belongs to an attorney. After the intake process, each inmate signs an
acknowledgment form. (See Attach. Ex. 1). The form requires the inmate to acknowledge that
the inmate understands that phone calls may be monitored and recorded and, “A properly placed
phone call to an attorney is not monitored. You must contact your unit team to request an
unmonitored attorney call.” (Id.)
Even if an attorney has not requested that their phone number be blocked by the system,
CCA allows an attorney to schedule an unrecorded phone call by contacting the facility and
scheduling an unrecorded call with the inmate’s corrections counselor. Additionally, an inmate
may request an unrecorded phone call from the inmate’s corrections counselor.
When an inmate places an outgoing call from the facility, each call begins with a recorded
preamble that notifies both parties, “this call is subject to recording and monitoring.” Additionally,
signs located near the inmate phones, and on the phones themselves, advise inmates that the inmate
telephone system is subject to monitoring and/or recording. (See Attach. Exs. 2–6.)
In preparation for the September 7, 2016 hearing, the government met with two
representatives of CCA. If permitted to testify, the CCA representatives would testify as follows:
1. Sgt. Wayne Bigelow is the Security Threat Group Coordinator at CCA and is familiar
with the facilities telephone monitoring and recording procedures. He has been in this position
since December 2015. He would testify concerning the policies and procedures as set forth below
21
(See Sec. IV(1)(a)(i) “Additional relevant facts related to CCA’s recording of inmate phone
calls.”).
Sgt. Bigelow will testify that an inmate’s attorney is required, per CCA policy, to send a
fax request to CCA asking that the attorney’s phone number be blocked from recording. Once he
receives such a fax, Sgt. Bigelow accesses the computer-based system and “blocks” the number.
Once blocked, the number will not be recorded, no matter which inmate PIN number is used to
initiate the call to that particular number. Sgt. Bigelow said that he believes this “block” is
permanent until someone “unblocks” the number. Sgt. Bigelow does not know how to “unblock”
the number. Once “blocked,” the system does not record the phone call at all.
According to Sgt. Bigelow, every recorded outgoing call has an advisory statement telling
both parties that the phone call is subject to monitoring and recording. However, since he has not
listened to a non-recorded, “blocked” call, Sgt. Bigelow does not know whether the recording
plays at the beginning of non-recorded calls.
Additionally, inmates or their attorneys can request a non-recorded attorney-client phone
call. This unrecorded 17 call usually takes place in the counselor or unit team’s office. Although
CCA requests 24-hour notice before such a call, Sgt. Bigelow indicates CCA works to
accommodate attorneys’ requests. Sgt. Bigelow will also testify concerning signs near and on
monitored and recorded telephones inside CCA.
2. Lori Harrison is a Receiving and Discharge Officer at CCA. In this capacity, she meets
with inmates once they arrive at CCA. According to Ms. Harrison, each inmate is given a copy of
the CCA handbook when they arrive at CCA. Additionally, during the intake process, each inmate
17
Although the phone call is not recorded, Sgt. Bigelow indicates he believes a CCA employee
is present during the call.
22
is provided with a form, which the inmate signs, concerning CCA’s policy concerning the
monitoring of inmate’s phone calls. (See Attach. Ex. 1.) Ms. Harrison will testify that during the
intake process the form is explained to each inmate.
III. Standard for Appointment of Special Master
Pursuant to Fed. R. Civ. P. 53(a)(1), a court may appoint a master only to:
(A) perform duties consented to by the parties;
(B) hold trial proceedings and make or recommend findings of fact on issues to be decided
without a jury if appointment is warranted by:
(i) some exceptional condition; or
(ii) the need to perform an accounting or resolve a difficult computation of
damages;
(C) address pretrial or post-trial matters that cannot be effectively and timely addressed by
an available district judge or magistrate judge of the district.
Fed. R. Civ. P. 53(a)(1).
IV.
Duties Consented to by the Parties
A. Videos
Both the FPD and the government agree the Special Master should excise the video
recordings of CCA’s attorney rooms from the remainder of the CCA video recordings. (See FPD’s
Memorandum, doc. 119, at 5; Government’s Memorandum, doc. 120, at 25.) The FPD and the
government also agree the Special Master should retain the video recordings of CCA’s attorney
rooms if review of those recordings become necessary at a later date. In the government’s
memorandum, it also agreed not to seek such video without first filing a motion with the Court
requesting the Special Master to first review the requested video of attorney-client meetings for
privileged communications. (Doc. 120, at 25.) Should the FPD agree to first file a motion with
the Court before seeking any video recordings of attorney-client meetings maintained by the
Special Master, the parties are in full agreement regarding the parameters of the Special Master’s
23
role and handling of the video recordings of attorney-client meetings obtained from CCA in this
case.
Once the videos of attorney-client meetings have been excised, then the remaining videos
should be provided to the government and Coordinating Discovery Counsel.
B. Phone Calls
The FPD and the government also agree the Special Master should excise any recorded
inmate telephone calls to an attorney and retain those telephone calls should review of those
recordings become necessary at a later date.
Once any recorded inmate-attorney calls have been excised, then the remaining calls should
be provided to the government and Coordinating Discovery Counsel.
C. Law Library Computers
The FPD and the government agree the Special Master should review any data and identify
privileged attorney-client communications on any computer seized from CCA’s law libraries. The
Special Master should excise any privileged communications and retain them until further order
of the Court, delivering non-privileged material to the government and Coordinating Discovery
Counsel.
V.
There are no exceptional conditions warranting an investigation by the Special
Master into the United States Attorney’s Office
The FPD also seeks to task the Special Master with determining how the U.S. Attorney’s
Office came into possession of video recordings of attorney-client rooms, audio recordings of
inmate calls to attorneys, and several computers seized from the law libraries at CCA and
“determine any policy or practice related to obtaining protected materials. This should include
identifying any specific cases or specific government attorneys or agents who have obtained
protected material.” (FPD’s Proposed Order, Doc. 119-1, at 4.) In support of this request, the
24
FPD advances arguments for the Special Master to initiate an investigation into the policies and
practices of the U.S. Attorney’s Office.
A. The FPD asks for extraordinary relief based on suspicions. Suspicions are not
extraordinary conditions warranting an investigation by the Special Master.
At the August 16, 2016 hearing, the FPD acknowledged:
We don’t know the scope. We don’t get it yet. We don’t know how far this goes
back. We know that CCA has recorded since 2008. We have a lot of suspicions,
but we need a Special Master who has the authority and the power of the Court to
come in and delve into these things and sort it out.
(Transcript of Aug. 16, 2016 Hrg., at 53–54.) Similarly, in its Memorandum in Support of
Proposed Order to Appoint a Special Master, (Doc. 119), the FPD acknowledges that its request
to have a Special Master investigate the U.S. Attorney’s Office is almost exclusively based on
what is not known.
For example, without any support, the FPD insinuates the U.S. Attorney’s Office may have
engaged in widespread practice of obtaining and reviewing video recordings of attorney-client
meetings. (Doc. 119, at 2.) (“[T]he practice and purpose of these recordings, the time-span, the
facilities that engaged in these recordings, and the distribution of these recordings to any USAO
or agent . . . requires the broad inquiry and authority of a Special Master.”) In the Government’s
Recommendation Related to Scope of the Special Master, it made clear that the criminal
coordinators for each of the offices for the United States Attorney for the District of Kansas have
polled every prosecutor in the District, and no prosecutor in this District has, in any other case,
viewed video of an attorney-client meeting from CCA or any other detention facility. (Doc. 120,
at 4.) At the September 7, 2016 hearing, the U.S. Attorney’s Office would proffer to the Court
that no prosecutor in this District has, in any other case, viewed video of an attorney-client meeting
from CCA or any other detention facility.
25
Here, the scope of the investigation rendered unique circumstances in which the U.S.
Attorney’s Office inadvertently came into possession of video recordings of attorney-client
meetings. When the government recognized that it had the recordings, it alerted the parties and
instructed the agent tasked with viewing the recordings not to view any video recordings of
attorney-client meetings. From the outset, the government has been willing to meet with counsel
and the Court, at any time and on a moment’s notice, to address these unique issues and handle
this evidence in a thoughtful and considered manner. There has not been a moment of hesitation
on the government’s part to discuss these issues and this evidence with the Court and counsel.
Any suggestion to the contrary is wrong.
Next, the FPD argues that the government “used” the recordings of attorney-client videos
to “force a defense attorney to withdraw from two cases.” (Doc. 119, at 3.) That representation
is simply false. The government has not viewed and never intended to view attorney-client videos.
Further, AUSA Flannigan and SAUSA Tomasic repeatedly stated during their August 2nd meeting
with Ms. Rokusek that the merits of the accusations made against her did not bear on the potential
conflict.
B. The FPD assumes that the video recordings and audio recordings are privileged
although there has been no evidence submitted in support of that assertion.
The FPD’s arguments rely on assumptions and misinformation and do not constitute an
exceptional condition warranting an investigation into the U.S. Attorney’s Office. First, in its
pleadings and argument, the FPD assumes that where any privileged communications come into
the possession of the government, a Sixth Amendment violation has occurred. 18
18
Because
See Amended Motion for Return of Information, Doc. 85, at 3; Memorandum in Support of
Proposed Order to Appoint a Special Master, Doc. 119, at 1; Transcript of Aug. 9, 2016 Hrg., at
15; Transcript of Aug. 16, 2016 Hrg., at 48, 51.
26
intrusions into the attorney-client relationship are not per se unconstitutional, establishing a Sixth
Amendment violation requires some showing of prejudice in terms of injury to the defendant or
benefit to the prosecution. Weatherford v. Bursey, 429 U.S. 545, 558 (1977). In Weatherford, the
Court held that a government informant’s attendance at several attorney-client strategy sessions
did not violate the defendant's Sixth Amendment rights because there was “no tainted evidence [at
trial], no communication of defense strategy to the prosecution, and no purposeful intrusion” by
the informant into the lawyer-client relationship. Id.
Where, however, “the state becomes privy to confidential communications because of its
purposeful intrusion into the attorney-client relationship and lacks a legitimate reason for doing
so, a prejudicial effect on the reliability of the trial process must be presumed.” Shillinger v.
Haworth, 70 F.3d 1132, 1138 (10th Cir. 1995). This per se rule “in no way affect the analysis to
be undertaken in cases in which the state has a legitimate law enforcement purpose for its
intrusion.” Id. Thus, where the government obtains recorded jail calls and incidentally obtains
recorded attorney-client conversations, no Sixth Amendment violations has occurred because the
calls were obtained for a legitimate law enforcement purpose. United States v. Zajac, No.
2:06CR811DAK, 2008 WL 1808701, at *3 (D. Utah April 21, 2008).
In Zajac, the District Court addressed a defendant’s claim that a per se violation of the
Sixth Amendment occurred when the government obtained jail-house calls he had made to his
attorney. The government obtained a subpoena to gather evidence of calls about incriminating
statements the defendant made through jail-house calls. See id. Because the County jail did not
separate telephone calls, it produced all of the calls the defendant had made in response to the
subpoena. See id. The United States Attorney’s Office and the investigating agents identified the
calls the defendant had made to his attorney (no taint team was used), and they “purposefully did
27
not review or listen to the telephone calls made to attorneys because they could have contained
attorney-client communications.” Id. at *4. Then, to fully comply with discovery rules, the
government provided the incriminating calls as well as the other calls made by the defendant. The
government provided to [d]efendant’s counsel the entire record in discovery because the jail had
provided the entire record to it. While the government took care not to review any privileged
material, it did not exclude those potentially privileged conversations from defense counsel when
it provided discovery. Id. In Zajac, the Court concluded, the defendant “provides conclusory and
speculative accusations that the government engaged in egregious and outrageous illegal conduct.
There are no specific facts to support Defendant's allegations that there was an intrusion of the
attorney-client privilege or that such intrusion was purposeful.” Id. at *5; see also United States
v. Johnson, No. 2:11-CR-501 DN, 2016 WL 332042, at *5 (D. Utah Jan. 12, 2016), report and
recommendation adopted, No. 2:11-CR-501-DN-PMW, 2016 WL 369699 (D. Utah Jan. 27, 2016)
(finding no Sixth Amendment violation where government obtained attorney-client emails in
response to a search warrant to Google. In so holding, the Court noted the defendant “failed to
demonstrate that the Government's Google search warrant was a purposeful intrusion into attorneyclient communications or that it was obtained without a legitimate law enforcement purpose.”).
Here, the government did not intentionally obtain video recordings of attorney-client
meetings, and no employee of the U.S. Attorney’s Office or law enforcement officer has viewed
those recordings. Further, the government did not intentionally obtain any audio recordings of any
attorney-client telephone conversations. And while those recordings are not privileged, law
enforcement officers have, as a matter of course, stopped reviewing any inmate call when they
determine an inmate is calling his attorney. Further, when a law enforcement officer inadvertently
listened to between ten and fifteen seconds of a call, SAUSA Tomasic contacted the defense
28
attorney and let him know his client’s calls were being recorded. (See Attach. Ex. 10.) SAUSA
Tomasic also explained that an officer inadvertently listened to a small portion of the call, and the
government did not intend to listen to any attorney-client calls. (Id.) Thus, the FPD has failed to
show that the government has intentionally intruded into any attorney-client relationship, let alone
benefitted from any alleged intrusion.
Further, there can be no doubt that the government had a legitimate law enforcement
purpose in seeking the video and audio recordings from CCA. The video recordings were sought
to support charges stemming from widespread drug and contraband trafficking. Although the
government has not viewed the recordings in any depth, they could arguably show inmates meeting
and exchanging items, using contraband inside the facility, and meeting with co-conspirators in
certain locations. Similarly, though review of recorded inmate calls, agents identified calls
outlining the importation of K-2 inside the facility through fake “legal mail,” the movement of
wire transfers from individuals outside the facility to pay for contraband inside the facility, the
timing of shipments of drugs and contraband inside the facility, the use of drugs and contraband
inside the facility.
Further, the recorded CCA calls have aided agents in identifying co-
conspirators both inside and outside of CCA.
Accordingly, there is no Sixth Amendment violation, and consequently, no need for a broad
investigation by a Special Master into the policies and practices of the U.S. Attorney’s Office.
C. There has been no inadvertent waiver/ inadvertent disclosure of phone calls.
Federal Rule of Evidence 502(b) covers inadvertent disclosures of otherwise privileged
communication and is inapplicable here. The case law cited in the government’s response (Doc.
121) stands for the proposition that, when a client makes a phone call to an attorney knowing the
phone call is subject to recording and monitoring, there is no privilege because there is no
29
reasonable expectation of a confidential communication.
Rule 502 applies only where an
otherwise privileged communication was inadvertently disclosed to opposing parties during the
discovery process. Rule 502 does not change the requirement that, in order to be privileged, there
must be a reasonable expectation that the communication will be confidential.
Moreover, the attorney-client privilege belongs to the client not the attorney. See United
States v. Merida, ___ F.3d ___, 2016 WL 3741867 *5 (10th Cir. July 12, 2016). (“And ‘for
purposes of the attorney-client privilege, the ‘client’ is ‘the actual recipient of the services.’”
(Quoting 3 Jack B. Weinsten & Margaret A. Berger, Weinsten’s Federal Evidence § 503.11[2] (2d
ed. 1998)); see also In re Vargas, 723 F.2d 1461, 1466 (10th Cir. 1983) (“[A]n attorney cannot
waive the attorney-client privilege without the client’s consent…”)
Regardless of whether the attorneys knew the process to block recording of attorney-client
calls, each inmate-client is advised at the intake process, both verbally and in writing, of CCA’s
policies. As the United States made clear in its response to the motion to impound additional
evidence (Doc. 121), the inmates waived privilege by conducting phone calls with their attorneys
on telephones they knew were subject to recording and monitoring.
Therefore, when a client made a phone call on a phone he/she knew was being recorded,
without having followed CCA’s policies related to obtaining a non-recorded telephone
conversation, the conversation was not made “under circumstances from which it may reasonably
be assumed that the communication will remain in confidence.” In re Qwest Communications
Inten Inc., 450 F.3d 1179, 1185 (10th Cir. 2006), quoting United States v. Lopez, 777 F.2d 543,
552 (10th Cir. 1985).
Here, however, each inmate was clearly informed how to place a call to his attorney on a
line not subject to recording. Further, each inmate was provided notice that the inmate phones
30
were subject to recording and monitoring. This notice was provided in the inmate handbook (see
Attach. Ex. 2, at 10), on an acknowledgment form supplied to inmates during the intake process
(see Attach. Ex. 1), and on various signs throughout the facility. (see Attach. Ex. 3–6.) By
contacting their attorney on the recorded and monitored lines at CCA, the inmates waived their
privilege. 19
1. Regardless of the fact that the phone calls are not privileged, the United
States does not object to the Special Master’s excise of the recorded calls.
The United States has shown that an inmate waives privilege by not advising his attorney
to request that CCA “block” the attorney’s number from its recording system and by making a
phone call to his attorney on a telephone he knows is subject to recording. Although the law is
clear that these calls are not privileged, agents involved in the review of recorded telephone calls
have taken steps to cease review once it became apparent that the phone call involved a law office,
and when she learned that an agent had inadvertently listened to between ten and fifteen seconds
of a call, SAUSA Tomasic contacted the defense attorney. 20 Thus, even assuming the recorded
inmate calls are privileged, the government did not intentionally obtain them and did not access
any attorney-client communications.
Therefore, if the Court is so inclined, the United States does not oppose tasking the Special
Master with excising phone calls between an attorney and client. If so ordered, the Court should
direct the Special Master to order defense counsel to provide the Special Master with all known
19
“Sedillos v. Bd. of Educ. of Sch. Dist. No. 1, 313 F. Supp. 2d 1091, 1093 (D. Colo. 2004) (“the
attorney-client privilege can be waived by [a]ny voluntary disclosure by the client of an
otherwise privileged confidential communication”).
20
“In order to be covered by the attorney-client privilege, a communication between a lawyer
and client must relate to legal advice or strategy sought by the client.” United States v. Johnston,
146 F.3d 785, 794 (10th Cir. 1998).
31
phone numbers of the attorneys representing the defendants involved in the recorded calls to aid
the Special Master.
D. Video Recordings
As stated in the Government’s Recommendation Related to Scope of Special Master and
Proposal Not to Retain Certain Evidence (Doc. 120), no prosecutor nor agent has viewed any video
of attorney-client meetings in the video provided by CCA in this case, or any other case. (Doc.
120, at 3-4). Therefore, the FPD’s statement in their suggestions that “the practice and purpose
of these recordings, the time-span, the facilities that engaged in these recordings, and the
distribution of these recordings to any USAO or agent, present an exceptional condition” is
inaccurate.
E. Rule 6(e)
During the August 9, 2016 hearing, questions were raised of potential violations of Federal
Rule of Criminal Procedure 6(e), as a result of certain disclosures of discovery in this case. (See
Transcript from Aug. 9, 2016 Hrg., at 99-100.) In the Tenth Circuit, Rule 6(e) protects what
actually transpired before the Grand Jury room or what is likely to transpire before the Grand Jury.
Federal Rule of Criminal Procedure 6(e)(2)(B) provides, in relevant part, that “[u]nless
these rules provide otherwise, the following persons must not disclose a matter occurring before
the grand jury: . . . (vi) an attorney for the government[.]” Fed. R. Crim. P. 6(e)(2)(B) (emphasis
added). Rule 6(e)(3) provides exceptions to the rule of secrecy. In relevant part, the rule states
that:
(A) Disclosure of a grand-jury matter—other than the grand jury’s deliberations or any
grand juror’s vote—may be made to:
(i) an attorney for the government for use in performing that attorney’s duty[.]
32
Fed. R. Crim. P. 6(e)(3)(A)(i) (emphasis added).
The interchangeable terms “a matter occurring before the grand jury” and “a grand-jury
matter” are not defined in Rule 6. However, several courts, including the Tenth Circuit, have
interpreted the terms to prohibit the disclosure of what transpired or is likely to transpire in the
grand jury room, such as the identity of witnesses, witness testimony, exhibits presented to the
grand jury, or the views expressed by members of the grand jury. See, e.g., Anaya v. United States,
815 F.2d 1373, 1379 (10th Cir. 1987) (“When documents or other material will not reveal what
actually has transpired before a grand jury, their disclosure is not an invasion of the protective
secrecy of its proceedings, nor is it an interference with the grand jury as a principal tool of criminal
accusation.”); United States v. Phillips, 843 F.2d 438, 441 (11th Cir. 1988) (“The term ‘matters
occurring before a grand jury’ has been defined to include anything that will reveal what transpired
during the grand jury proceedings.”); Fund for Constitutional Government v. National Archives,
656 F.2d 856, 869 (D.C. Cir. 1981) (the scope of the secrecy “encompasses not only the direct
revelation of grand jury transcripts but also the disclosure of information which would reveal the
identities of witnesses or jurors, the substance of testimony, the strategy or direction of the
investigation, the deliberations or questions of the jurors, and the like.”) (internal quotation marks
omitted); In re Grand Jury Investigation, 630 F.2d 996, 1000-01 (3d Cir. 1980) (“Rule 6(e) shields
solely ‘matters occurring before the grand jury.’ It is designed to protect from disclosure only the
essence of what takes place in the grand jury room, in order to preserve the freedom and integrity
of the deliberative process.”); In re Grand Jury Investigation, 610 F.2d 202, 216 (5th Cir. 1980)
(“Courts have interpreted the secrecy requirement imposed by Rule 6(e) to apply not only to
information drawn from transcripts of grand jury proceedings, but also to anything which may tend
to reveal what transpired before the grand jury.”) (internal quotation marks omitted)); United
33
States v. Stanford, 589 F.2d 285, 290-91 (7th Cir. 1978) (“Unless information reveals something
about the grand jury proceedings, secrecy is unnecessary.”); United States v. Interstate Dress
Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960) (noting that Rule 6(e)(2) “is intended only to protect
against disclosure of what is said or what takes place in the grand jury room”). 21
In Anaya, the Tenth Circuit considered—in an appeal of a district court’s order denying
the taxpayers’ motion to quash an IRS summons—whether information provided by FBI agents to
IRS agents concerning an FBI investigation constituted grand jury material. 815 F.2d at 1378.
The taxpayers contended that enforcement of the summons would be an abuse of the court’s
process because the summons were based on improper disclosures of grand jury material, in
violation of Rule 6(e). Id. at 1378.
The Tenth Circuit set forth the relevant factual background as follows. FBI agents
disclosed to the IRS information about Anaya’s income, obtained during the FBI investigation. Id.
at 1375. During a meeting, FBI agents advised IRS agents “in general terms” that Anaya, then
Governor of the State of New Mexico, had received income from “payoffs” made in connection
with the award of contracts and that he had likely not reported that income on his personal income
tax returns. Id. While the FBI and IRS decided against joining their investigations into Anaya, an
IRS agent examined FBI files developed during the investigation. Id. at 1376. The files contained
memoranda of interviews and summaries of the investigation made by FBI agents. Id. None of
the substantive documents contained in those FBI files were presented to the grand jury. Id. (noting
also that, in accordance with FBI policy, all grand jury evidence was kept segregated in a locked
safe and not examined by the IRS). At a subsequent meeting, the U.S. Attorney shared additional
21
Note that the Sixth Circuit takes a broader view and has found that subpoenaed documents
are covered by Rule 6(e). See In re Grand Jury Proceedings, 851 F.2d 860 (6th Cir. 1988)
(discussing the coercive nature of the production of subpoenaed documents).
34
information with IRS agents concerning real estate transactions involving Anaya and allegations
of payoffs he received. Id. The subject of the real estate transactions had not been presented to
the grand jury, but the subject of some of the payoff allegations had been presented to the grand
jury. Id. The Tenth Circuit noted that the U.S. Attorney did not tell the IRS agents that the grand
jury had considered these matters. Id.
In its analysis, the Tenth Circuit noted that “the use of the term ‘grand jury materials’ in
connection with Rule 6(e) disclosures has become misleading and shibbolithic. What we must be
concerned with is whether the information given to the IRS actually subverted the secrecy veiling
what took place before the grand jury.” Id. at 1378. The Tenth Circuit determined that none of
the materials examined by the IRS had been presented to the grand jury and rejected the
taxypayers’ argument that the material was “so closely related” to what was presented to the grand
jury that “it must fall within the shadow of 6(e).” Id. at 1379.
The Tenth Circuit explained:
When documents or other material will not reveal what actually has transpired
before a grand jury, their disclosure is not an invasion of the protective secrecy
of its proceedings, nor is it an interference with the grand jury as a principal tool of
criminal accusation. Indeed, the test of whether disclosure of information will
violate Rule 6(e) depends upon “whether revelation in the particular context would
in fact reveal what was before the grand jury.” Fund, 656 F.2d at 871. As we
perceive the proper inquiry, a reviewing court must find that disclosure is certain
to destroy the protections of Rule 6(e) before it finds a violation of the rule. In
contrast, revelation of information that has not been submitted to the grand jury
does not vitiate those protections for the simple reason that the information was not
part of what transpired in the grand jury room.
Id. (emphasis added). Simply put, “it is not the information itself, but the fact that the grand jury
was considering that information which is protected by Rule 6(e).” Id. 22 See also United States
22
Note that the Tenth Circuit did find the disclosure of a cover letter indicating names of
persons to be subpoenaed to be “inadvertent and problematic.” Id. at 1380 n.12.
35
v. Dynavac, Inc., 6 F.3d 1407, 1412 (9th Cir. 1993) (business records previously submitted to
grand jury as part of criminal investigation but created for purposes independent of grand jury
proceeding were not matters occurring before the grand jury); Phillips, 843 F.2d at 441 (financial
documents obtained via grand jury subpoena but not submitted to grand jury and not indicating
“pattern of the grand jury investigation” were not matters occurring before grand jury).
Thus, under Anaya, the production of Rule 16 discovery, or discovery related to sentencing
issues, which might include documents, records, and other evidence obtained via grand jury
subpoena, would not violate Rule 6(e), as long as the discovery reveals nothing about what actually
transpired before the grand jury or what is likely to transpire before the grand jury. Therefore,
there is no need for the Special Master to examine whether any violation of Rule 6 occurred.
VI. Additional tasks the Court may want to assign to the Special Master
A. Computers from CCA’s law libraries
Agents copied hard drives from computers located in the law libraries at CCA pursuant to
the April 8, 2016, search warrant. Based upon information revealed during the investigation, it
appears that inmates were coordinating the exchange of contraband by leaving “notes” on the
computers discussing the delivery and location of contraband. However, since the computers were
located in the law libraries, it is possible that an inmate used the computer to draft a letter to
counsel. It is the understanding of the United States that the computers did not have internet
access, so no email communications should be present on the drives, however, if an inmate chose
to type a letter to counsel using the computer available to all inmates in the law libraries, that letter
and/or data associated with the data may be on the computer. The manner in which an inmate
creates and saves data on the computers is unclear. For example, the parties are not certain whether
36
the data may be saved under user-specific or password-protected space, or whether the files may
only be saved in a general space, accessible to all inmates and CCA staff.
Prior to the FPD’s motion, government counsel had discussed with attorneys assigned to
the Black defendants, proposed methodology in searching the computers to make sure no
privileged information was revealed to government investigators. However, since the parties are
requesting the Court to appoint a Special Master, it may be appropriate to assign the Special Master
the task of reviewing the data from the law libraries drives to ensure that there are no protected
communications on the law libraries computers.
B. Other possible locations where attorney-client communications could be located
During the search of CCA, agents utilized a taint team in case searching agents encountered
any attorney-client communication while searching inmates’ cells. Therefore, the United States
does not believe that any attorney-client communications were seized from inmates’ cells.
THOMAS E. BEALL
s/ Debra Barnett
Debra Barnett
1200 Epic Center
301 N. Main
Wichita, KS 67202-4812
(316) 269-6481 (telephone)
(316) 268-6484 (facsimile)
/s/Erin S. Tomasic
Erin S. Tomasic
Special Assistant U.S. Attorney
District of Kansas
37
(913) 551-6730 (telephone)
(913) 551-6541 (facsimile)
D. Kan. No. 78430
D. Christopher Oakley, 19248
500 State Avenue; Suite 360
Telephone: 913-551-6730
Facsimile: 913-551-6541
E-mail: chris.oakley@usdoj.gov
Attorneys for Plaintiff
38
Certificate of Service
I hereby certify that on the 6th day of September, 2016, the foregoing was electronically
filed with the clerk of the court by using the CM/ECF system which will send a notice of
electronic filing to all counsel.
s/ Erin S. Tomasic
39

No. 16-20032-JAR. Click here for links to Judge Robinson`s order

Transcription

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