Big Brother Listens To Big Sister

United States v. Rodriguez, No. 10-2724-cr (2d Cir. August 25, 2011) (Miner, McLaughlin, Pooler, CJJ)

While detained at the MDC, Rodriguez called his sister and asked her to tell their brother to contact Rodriguez’ attorney so that they could discuss whether he should “cop out” before being indicted. He indicated that the sooner he spoke with his attorney the better, and that they should tell the lawyer to tell the prosecutor that he wanted to plead guilty to the “five-to-40" drug charge in the complaint.

The district court found that the call was not covered by the attorney-client privilege because Rodriguez knew that the BOP was recording it. It allowed the government to play the recording at Rodriguez’ trial, and the circuit affirmed.

First, the court had to decide on a standard of review. Whether the attorney-client privilege applies is reviewed de novo, while a finding that it has been waived is reviewed for abuse of discretion. Even though the district court seemed to look at the issue one of application, on appeal Rodriguez framed the issue as one of waiver. Accepting this, and noting that the question “involves the application of the attorney-client privilege as our case law has already developed it to the novel set of facts before us” and did not “require us to address the scope of the privilege itself in a novel way,” the court reviewed only for abuse of discretion.

Here, it found none. “[O]n the basis of the undisputed fact that Rodriguez was aware that his conversation was being recorded by BOP, Rodriguez’s disclosure to his sister of his desire to engage in plea discussions with his attorney was not made in confidence and thus constituted a waiver of the privilege.” Rodriguez did not claim that he had no way to reach out to his attorney directly, and under BOP regulations, that call would not have been monitored. Accordingly, he could “just as easily” have contacted his attorney directly to discuss his options in confidence.

Rodriguez’ second argument was based on Fed. R. Evid. 410, which privileges statements made in the course of plea discussions. The court made short work of this, noting that the rule only covers discussions with “an attorney for the prosecuting authority.” While the district court did not rule on this issue, the circuit found the inapplicability of Rule 410 to a conversation with one’s sister to be so clear that it did not remand for a ruling.

Comment

This is a disturbing precedent, not because it seems incorrect, but because of its policy implications.

On the government’s part, it seems fairly short sighted to use conversations like this against defendants at trial, since the practice might deter incarcerated defendants from taking whatever steps are in their limited power to resolve the case quickly. Any action of the government that might chill the speedy resolution of criminal cases through plea negotiations would seem to be inadvisable.

On the court’s part, the decision seems to take very little account of the difficulties of prison life. Inmates at the MDC have limited mobility, restricted funds, irregular access to telephones and a limited number of “minutes” per month. Even though Rodriguez did not claim that these obstacles restricted his ability to contact his counsel directly, they most likely - at least to some degree - informed his choice to seek to contact counsel through a family member.

Underprivileged

In re Grand Jury Subpoena Dated July 6, 2005, No. 05-6891-cv (2d Cir. November 16, 2007, posted December 10, 2007) (Pooler, Parker, Wesley, CJJ)

In January of 2005, an Eastern District AUSA contacted counsel for the unnamed appellant, a former mortgage broker, and advised that appellant was the subject of a grand jury investigation. Appellant proffered on January 12, 2005, and, sometime after that date, surreptitiously recorded his telephone conversations with another broker, who was also a subject of the investigation. At later proffer, appellant told the government about the tapes, which he said he had made “on advice of counsel to protect himself.” When the government subpoenaed those recordings, appellant resisted, claiming that they were privileged. The district court ordered compliance, and the circuit affirmed.

Appellant’s primary claim was that the recordings were work product. The circuit concluded that the recordings were “fact” work product, that is, the result of a factual investigation, and not “opinion” work product, which is entitled to greater protection, because opinion materials might reveal the mental impressions of counsel. On this point, the court faulted appellant’s presentation to the district court; he relied solely on a conclusory affirmation from counsel that claimed that appellant was acting on his instructions, but did not give the court the tapes themselves for in camera review.

The court then grappled with the degree to which the work product doctrine applies to grand jury proceedings, which fall into a gap between Civil Procedure Rule 23(b)(3), which privileges materials prepared in anticipation of civil litigation, and Criminal Rule 16(b)(2), which privileges materials prepared by the defendant or counsel during the investigation or defense, but only in a “pre-trial proceeding in which there is a known defendant.” The court held that a “grand jury is entitled to fact work product where the government shows that the grand jury has a ‘substantial need’ for the materials and that it has ‘exhausted other means of obtaining’” them.

Here, both prongs were satisfied, although the court’s reasoning is a bit skimpy. For the first prong, the court simply held that a grand jury must have “access to the data it needs,” which “clearly includes” the recordings. Thus, there was “no doubt” that the need was “substantial.” Not the most satisfying analysis: the grand jury needs it, thus its need is “substantial.” With respect to the exhaustion prong, the court did better. It rejected appellant’s argument the government could have asked him about the contents of the recordings; this would not likely have been productive, since appellant had already claimed that they were privileged. Moreover, the government could not get what it needed from the other participant in the conversations, since his own account of the conversations would not replicate the “unique memorialization” contained in the tapes themselves.

In a separate summary order, the court rejected appellant’s alternative arguments. With respect to the Fifth Amendment, since the tapes were voluntarily prepared, there was no compulsion. And appellant could not claim an act of production privilege; the government knew enough about the existence of the tapes and their location - most likely they were either with appellant or his counsel - and requiring him to produce them would not require him to incriminate himself by admitting these facts. Nor would production “implicitly authenticate” the recordings. Finally, the recordings could not be deemed memorializations of appellant’s own communications with his counsel, since they did not involve the attorney himself.