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United States v. Black

United States District Court, D. Kansas

May 17, 2017




         Before the Court is the March 16, 2017 Report of the Special Master (Doc. 214), to which the Federal Public Defender (“FPD”) has filed a Response (Doc. 220) and Objections to Report of Special Master (Doc. 229). The FPD has also filed a related Proposed Findings of Fact and Supplemental Request to Expand the Special Master's Investigation (Doc. 230). The government has filed a consolidated Response (Doc. 237) to the FPD's filings; the FPD has filed a Reply (Doc. 240); and the government filed a Motion for Leave to File a Surreply (Doc. 247), which the Court granted (Doc. 248). The government has filed its Surreply (Doc. 250), which the Court has fully considered. The FPD has also filed a Motion to Compel Production of Grand Jury Materials to Special Master (Doc. 202), to which the government has filed a Response in opposition (Doc. 218), and the FPD a Reply (Doc. 224). Also pending are numerous related motions for relief filed by Defendants in this case[1] and in other cases assigned to the undersigned, as well as by defendants in cases assigned to other judges in the District of Kansas.

         I. Procedural History

         On May 4, 2016, the Grand Jury returned an Indictment charging the Defendants with various crimes stemming from their alleged involvement in a conspiracy to smuggle and distribute contraband inside the Corrections Corporation of America, now known as Core Civic (referred to as “CCA” in this Order), Detention Center in Leavenworth, Kansas. On July 21, 2016, this Court held a discovery and status conference in this case.[2] On August 5, 2016, the FPD filed a Motion for Fed. R. Crim. P. 41(g) and a Motion for Access to Visitation Rooms at CCA, based on information and belief that the government was in possession of video recordings of the attorney client conference rooms at CCA that intruded into the privileged, confidential communications of attorneys and clients housed at CCA.

         The Court conducted an emergency hearing on these motions (and numerous motions to join or intervene) on August 9, hearing evidence presented by the FPD and various Defendants. Based on the evidence presented at the hearing, the FPD and the government agreed that the Court should appoint a special master, though the FPD and government disagreed about the scope of the special master's investigation. In short, the FPD urged a special master investigation of how and why these video recordings had been made, how and why these recordings were in the possession of the government, and whether the government had viewed the recordings or otherwise engaged in misconduct violative of the parties' attorney-client privilege and Sixth Amendment rights. The government wanted the special master's work to be limited to acting as a taint team or privilege master, culling the video recordings of attorney-client conferences from the video recordings of all other recorded activity throughout the CCA facility.

         On August 10, this Court ordered the government to produce all originals and copies of video recordings of attorney-client communications in its possession or in the possession of law enforcement agencies.[3] The Court further ordered CCA to immediately cease and desist from recording of attorney-client communications inside the detention facility, attorney client phone calls and attorney-client video conference calls.[4] The Court later ordered CCA to produce to the United States Marshals Service (“USMS”) any and all video recordings of attorney-client conference rooms for the time period May 1, 2016 through the date of production.[5]

         On August 16, 2016, the Court held a second evidentiary hearing on these matters. The government did not offer evidence at the August 9 or August 16 hearings. In fact, the government attorneys of record in this case at that time did not appear at the August 9 or August 16 hearings to answer the Court's and parties' many questions about video and audio recordings of attorney client communications.[6] Thus, the Court scheduled a third evidentiary hearing for September 7, 2016, this time ordering the attorneys of record, Special Assistant United States Attorney (“SAUSA”)[7] Erin Tomasic and Assistant United States Attorney (“AUSA”) Chris Oakley to appear, and further ordering AUSA Kim Flannigan to appear, as the evidence suggested that Flannigan had personal knowledge with respect to some of the events in this matter.

         After the September 7 hearing, based on the record developed in the three evidentiary hearings, and informed by the parties' flurry of submissions, the Court entered an order[8] on October 11 appointing David R. Cohen as Special Master in this case. The Court ordered Mr. Cohen to conduct an investigation into matters related to the government having obtained video recordings of attorney-client meetings at CCA, and audio recordings of telephone calls from CCA inmates to their attorneys. The Special Master has since conducted an extensive investigation, interviewed dozens of affected or knowledgeable people, ordered the preservation and/or production of various types of evidence, and filed status reports to this Court, [9] completing what the Court has denominated as Phase I and Phase II of the investigation.[10]

         Both Phase I and Phase II of the Special Master's investigation were within the scope of the investigation to which the government consented. And, the Special Master's fees and expenses for Phase I and II were paid by the Department of Justice.

         II. Scope of Phase III of Special Master investigation

         In his March 16, 2017 Status Report, the Special Master made certain findings of fact, including tentative findings, and recommended that the Court authorize him to proceed with a third phase of the investigation.[11] The FPD objects in part to the Status Report, in particular to certain tentative findings made by the Special Master, and the FPD further urges a broader scope of future investigation than the Special Master recommends. The government apparently does not object to some components of the Special Master's findings of fact, but expressly objects to others; and the government expressly objects to some, but not all of the FPD's requests for further investigation. The Court has considered all of these filings. Of course the Special Master's findings of fact, whether final or tentative, are not the findings of the Court unless the Court adopts them. In fact, the Court is charged to do a de novo review of the Special Master's findings.

         Moreover, the Court had commenced an investigation before appointing the Special Master, conducting three evidentiary hearings. The Court makes a number of findings of fact in this Order, informed by the evidentiary record before the Special Master was appointed and informed by the Special Master's extensive investigation. Based on the Court's findings of fact, it now authorizes a Phase III investigation by the Special Master.

         While this order will detail the parameters of Phase III of the investigation, in short, the Court directs the Special Master to investigate the actions and conduct of the government, the USAO attorneys and staff, and the participating investigative agencies (hereinafter, collectively the “government”), in procuring, obtaining and perhaps using video and audio recordings of attorney-client meetings and phone calls at CCA. While Phases I and II focused on CCA and its contractor Securus, [12] to determine how the recording systems worked in design and practice, and to determine the scope of recordings made and the scope of recordings produced to the government, Phase III will focus on the government itself. In Phase III, the Court directs the Special Master to investigate whether or not the government intentionally and purposefully procured and obtained recordings of attorney-client communications, and whether intentionally, or not, the government listened, viewed and/or used such recordings. This investigation is necessary to the Court's analysis of whether there were violations of the attorney-client privilege, prejudice to the affected clients, and Sixth Amendment violations. And, if the Court concludes there were any such violations or any such government misconduct, the Phase III investigation will inform the Court's decision about appropriate relief and remedies.

         To be clear, the Phase III investigation will focus on the government's conduct relative to all recordings it obtained in connection with the CCA investigation. There are grave concerns about government intrusion into attorney-client communications, spawning motions filed not only by the defendants in this case, but by CCA inmates charged in other cases in this court. SAUSA Tomasic stated that the CCA investigation continues, and that as many as 95 persons inside and outside the walls of CCA may be implicated and ultimately charged. Thus, other CCA inmates may also be affected by these matters. Although the investigation focuses on the defendants in this case and the defendants with pending motions for relief in other cases, the Special Master's Phase III investigation will focus on all of the recordings procured and obtained by the government in connection with this case, including defendants in this case, defendants in other cases who have moved for relief, and CCA inmates who are subjects or targets of the ongoing CCA investigation.

         While this Order expands and directs the Special Master's duties in going forward with a Phase III investigation, this Order does not otherwise modify the Court's Appointment Order, [13]including those portions of the Appointment Order that: (1) set forth the Rule 53(b)(2)[14]authority for the appointment; (2) detail the Special Master's “Complementary Duties;” (3) direct the parameters of the Special Master's “Communications with the Parties and the Court;” (4) pertain to the “Special Master's Record;” (5) pertain to the Court's “Review of the Special Master's Rulings;” (6) require that “All Relevant Parties” provide full cooperation to the Special Master; and (7) require “All Relevant Parties” to provide the Special Master with “Access to Information.”

         With respect to the Special Master's compensation, this Order does not modify the “Compensation” section of the Court's Appointment Order except that for all Phase III investigation, the government will not bear the cost; rather, the Special Master's compensation shall be paid by Timothy J. O'Brien, the Clerk of Court, up to $350, 000.00, from funds appropriated for this specific purpose.

         III. Phase III Investigation will not Include Certain Fully Investigated Matters

         The Special Master's investigation to date, which has primarily focused upon CCA and Securus' actions relative to video and audio recording of attorney-client communications, has put to rest some concerns about the privacy of attorney-client communications. The investigation has shown that attorney-client communications over the video conferencing equipment installed at CCA have not been compromised and will not be compromised in the future. The video conferencing equipment has never had monitoring or recording capability. As the Special Master's report details, although there is a panic button system currently installed in the attorney-client conference rooms, that system does not allow for audio or video recording in those rooms.

         Further, pursuant to this Court's cease and desist order, all video cameras have been removed from the attorney-client conference rooms at CCA.[15] Thus, attorney-client communications in those rooms are no longer video recorded; and there never was audio recording of communications in those conference rooms. And, pursuant to this Court's order, all video recordings of attorney-client conference rooms have been impounded by the Court; the government thus has no access to past video recordings.

         Furthermore, although CCA personnel have an intercom system throughout the CCA facility, that system has no recording capability and is not used to monitor conversations. And, although there are separate intercom systems in the attorney-client conference rooms, making it theoretically possible for CCA guards to monitor conversations, there is no practical way for CCA personnel to monitor live conversations given the scope of their duties, which include visually monitoring the entire facility (except for attorney-client conference rooms), and granting visitors and CCA personnel ingress and egress to areas of the facility. Further, as the Special Master report details, if the guard in the main lobby attempted to monitor live conversations, this would be within earshot of visitors and everyone else passing through the main access point of the facility. No one interviewed by the Special Master indicated that such live monitoring had ever occurred.

         Thus, the Court concludes that there is no need for further investigation concerning the audio or video recording systems in the attorney-client conference rooms. Nor is there any need for further investigation of the video conferencing system.

         But, as the Special Master's reports detail and as this Order further details, the problems with the Securus system employed by CCA to audio record inmates' outgoing phone calls have not been addressed. The evidence to date demonstrates that despite the procedures CCA has employed in the past, attorney-client telephone calls are still recorded. CCA has inadequate procedures to apprise inmates and instruct attorneys how to arrange for their calls to not be recorded. Moreover, even when phone numbers are input into the Securus system as “Private” numbers, meaning numbers that should not be recorded, at times the system nonetheless records telephone calls placed to those numbers. The Phase III investigation will inform the Court's determination of the appropriate prospective remedies for these problems.

         Moreover, the Phase III investigation must focus on two key questions about the conduct of the USAO: (1) has the government listened to audio recordings of any attorney-client telephone calls of defendants charged in this case, defendants in other cases who have filed motions for relief, or CCA inmates who are subjects or targets of the ongoing investigation?; and (2) has the government viewed any video recordings of communications in the attorney-client conference rooms at CCA of any of the above described defendants or inmates? The Phase III investigation will allow the Court to fashion individual and/or global remedies to address any and all intrusions into privileged attorney-client communications, and any and all corresponding violations of the Sixth Amendment rights of defendants.[16]

         IV. Audio Recordings

         After the Court conducted the emergency hearing on August 9, on August 15, the FPD filed a Motion for Court to Impound Additional Government Evidence, namely audio recordings of certain inmates' phone calls that included calls between those inmates and their attorneys.[17]The government did not bring to the Court's attention that there were audio recordings of attorney-client calls; the FPD did.[18]

         At the August 16 hearing, the FPD and defendants presented evidence about audio recordings. The government, appearing by AUSA Debra Barnett (not by the prosecutors assigned to this case at that time), responded that it did not know how the government came into possession of these audio recordings. In fact, the government provided no explanation until SAUSA Tomasic addressed the matter in a brief she filed on September 6, and answered the Court's questions during the September 7 hearing. Based on this evidentiary record, and based on the evidence developed by the Special Master in Phases I and II of his investigation, the Court makes the following findings of fact concerning the audio recordings.

         Findings of Fact Concerning Audio Recordings and Directives to Special Master

         The Grand Jury issued a subpoena to CCA dated March 28, 2016 for production of all “inmate recorded calls” for twelve named inmates[19] for the time period from July 1, 2014 “until notified recorded calls are no longer needed.” The subpoena further directed CCA to conduct reverse searches of all CCA-Leavenworth inmate calls for certain numbers listed in the subpoena and to provide copies of all recorded conversations associated with those numbers from July 1, 2014 until notified these recorded calls are no longer required. Later, at the request of the USMS, CCA supplemented its production with audio recordings for the entire time period of the identified detainees' custody at CCA. To date, the investigation has revealed that CCA-Leavenworth has produced audio recordings of telephone calls dating back to at least 2011.

         But it is unclear whether the USMS's request was documented in an email or other writing. In Phase III, the Special Master will investigate who requested the USMS to obtain these additional audio recordings, when the request was made, and what were the parameters (including the names and dates of the caller or recipient of the call) of such request. The Special Master will further investigate when the government became aware of the audio recordings of attorney client calls, and what actions it took in response to that knowledge.

         By the time of the August 16 evidentiary hearing, the government had provided all Defendants in this case, as well as some defendants in unrelated cases, [20] with audio recordings of inmate telephone calls from CCA. These audio recordings included some attorney-client phone calls. In producing audio recordings of phone calls, the government did not advise the defendants that there were audio recordings of attorneys and their clients. The Court subsequently issued a clawback order directing the government to gather and surrender to the Court all audio recordings in its possession, in the possession of investigative agencies, and in the possession of other defendants who had received them in discovery.

         At the August 16 hearing, Michael Jackson, counsel for Defendant Cathleen Rowlette, presented evidence that he received discovery that included audio recordings of phone calls of nine different CCA inmates and their respective attorneys. Jackson explained that the audio recordings were produced in a format that allowed one to search for calls by inputting the last four digits of a particular attorney's phone number. Jackson input the last four digits of the phone numbers of several defense counsel whose phone numbers he knew, and thereby retrieved attorney-client phone calls of the aforementioned nine inmates. One of these inmates' phone calls dated back to 2011.

         It is unclear when the government became aware that the CCA audio recordings included recordings of attorney-client telephone calls. At the September 7 hearing, SAUSA Tomasic stated that in January 2016 she had learned from Secret Service Agent Stokes that he had inadvertently listened to an attorney-client phone call.[21] Tomasic offered that,

the only instance I knew where an agent had encountered attorney-client video-or excuse me attorney-client recordings, audio-recordings, inmate calls, he told me, I immediately contacted our professional responsibility point of contact. He emailed PRAO. PRAO gave an advisory opinion...I emailed the attorney, let him know we had encountered them, let him know that an agent had inadvertently listened to between 10 and 15 seconds and that we did not intend to listen to them anymore.[22]

         In response to the PRAO advisory opinion, the government took the following steps. Agent Stokes advised CCA about the recording, in an email on January 22, 2016.[23] Tomasic notified the affected attorney, Rick Johnson, by email on January 22 as well. Moreover, Tomasic acknowledged that after learning this from Agent Stokes, she spoke with other agents working on this investigation, who advised her that they had also encountered some additional attorney-client calls, but that they did not listen to them and had “minimized immediately.”[24]

         While notifying Rick Johnson and CCA, Tomasic admittedly never informed the defendants in this case, nor the Court, because she assumed that it was “an exceptional circumstance.”[25] Notably, in managing the CCA investigation, Tomasic organized a “taint team” comprised of IRS agents and an AUSA in the Topeka division of the USAO, to review various materials seized from CCA, determine whether there were attorney-client privileged materials, and segregate and withhold those privileged materials from Tomasic and the other attorneys of record in this case. Tomasic anticipated using the taint team to review materials on the computers seized from the CCA law library, as well as materials seized from inmates' cells during the execution of a search warrant at CCA. But inexplicably, she did not employ the taint team to review recorded telephone calls after she became aware of the instances described above.[26] Instead, Tomasic proceeded to disseminate the audio recordings indiscriminately to all Defendants in this case.

         Tomasic further stated at the September 7 hearing that her management of the CCA investigation and her judgment was impaired by her lack of experience and exceptional family circumstances. This was a complex and wide-ranging investigation. The Court finds it surprising that Tomasic, a relatively inexperienced prosecutor, was the lead attorney on this case, rather than a more senior AUSA. At the same time, Tomasic was aware that there were audio recordings of some attorney-client conversations included in the audio recordings from CCA, yet she did not take steps to further investigate this, nor to submit the recordings to the taint team.

         Moreover, despite the earlier PRAO opinion, at some point in this case, the government made the unilateral decision that the audio-recordings of attorney client telephone calls in this investigation were not privileged; and they made the decision to neither notify the Court nor the Defendants nor affected CCA inmates that they were in possession of such recordings. That, in fact, is the litigation posture the government has taken in this case, that the attorney-client telephone calls are not privileged.[27] The government essentially argues that the inmates waived any privilege, because when an inmate places a phone call on the Securus pay telephones at CCA, they hear a pre-recorded warning that all calls are recorded or monitored. According to the government, this warning, coupled with signage on and around the Securus phones, placed the inmates on notice that their calls were recorded, and constituted a waiver of their attorney-client privilege.

         The fact that the government takes this litigation posture, coupled with the fact that the government unilaterally decided the telephone calls were not privileged, and did so without notice to the Court or the parties, leads this Court to direct the Special Master to conduct a Phase III investigation into the government's conduct concerning these audio recordings. While the Court does not rule in this Order upon the issues of privilege, waiver, and Sixth Amendment violations, the Court notes that any waiver must be done knowingly and intelligently.[28]

         Furthermore, based on the evidentiary record developed thus far, there are serious questions about whether any or all inmates waived their attorney-client privilege knowingly and intelligently. In that regard, the Court finds that CCA employed a procedure to inform inmates how to shield their attorney-client calls from monitoring or recording. At the time a person is first taken into custody at CCA, or within a few days of arrival, they receive a thirty-page inmate handbook[29] and a counseling session reviewing substantial information, including information about their right to private communications with their attorneys. The inmates are required to sign a form acknowledging that they have been advised that

Corrections Corporation of America reserves the authority to monitor (this includes recording) conversations on any telephone located within its institutions, said monitoring to be done to preserve the security and orderly management of the institution and to protect the public. An 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 call.[30]

         Despite this language, if an inmate contacts their unit team to request an unmonitored call, CCA allows them to place the call from their counselor or unit team's office, but only in the presence of the counselor or unit team leader. In other words, their call is not private, it is monitored.

         In fact, the only way attorney-client calls are not recorded or monitored is if the inmate places the call from one of the 121 Securus pay phones installed at CCA, and all calls to that attorney's phone number have previously been designated as “private” within the Securus system. And the only way calls are designated as private, is if the inmate's attorney has initiated the CCA phone call procedure. The procedure requires that an inmate's attorney, and no one else, initiates this “private” designation by faxing a letter to CCA, on the attorney's letterhead, directing CCA to block all calls to the attorney at the phone number(s) identified in the letter. Upon receipt of such a letter, CCA personnel input the attorney's phone number(s) into the Securus system such that all calls placed from Securus phones at the CCA-Leavenworth location[31] to that attorney's phone number(s) are rendered private and are not recorded by the Securus system.

         But this procedure is inadequate for several reasons. First, the only notice or explanation of the procedure is buried in the inmate handbook, provided to inmates at the time of their admission.[32] CCA does not inform attorneys of the procedure, yet CCA requires that the attorney initiate the procedure. The thirty-page inmate handbook covers a lot of information, including information about visitation, and personal safety, as well as the many rules and regulations inmates must abide by to avoid disciplinary action. It is not surprising that someone newly detained, someone lacking the legal education to fully understand their rights, and someone who is absorbing a volume of information all at once, might not remember to convey to their attorney, the need for the attorney to initiate the phone call procedure. Indeed, some of those newly detained inmates may not yet have an attorney, may not know the name of their attorney and likely have not yet met with their attorney. And, one can imagine the concerns that might eclipse the inmate's focus at their first or next meetings with their attorney-can they get bond, what are the charges, what are the penalties, how soon will they see the evidence and how long it might be before trial.

         CCA provides no other notice to inmates, other than the information in the inmate handbook and the acknowledgment form. To be sure, there are signs on and near the Securus phones that warn that all calls are monitored or recorded; but there are no signs on or near the Securus phones that provide further notice or instruction about the CCA phone call procedure. There is also a prerecorded message at the beginning of some outgoing calls that advises the inmate that their call is being recorded or monitored. But, as the Special Master's report details, it is unclear whether this message is never played for calls that have been duly designated as “private;” it is unclear whether this message is always played for calls that have not been designated as “private, ” and it is unclear what message is played when the call has been designated as “private” but the Securus system fails to block recording of that particular call. Furthermore, there is no indication in the inmate handbook, nor on the signage on or near the Securus phones, that if the inmate hears the prerecorded message it means their call will be recorded, but if they do not hear a prerecorded message it means their call will not be recorded.

         Moreover, even if an inmate remembers and understands the importance of taking affirmative action to protect their attorney client communications, an inmate cannot initiate the phone call procedure; only their attorneys can initiate it. Inmates are not allowed to provide to CCA their attorney's name and phone number at the time of the intake and orientation, nor at any time thereafter.[33]

         Further, despite touting their policy to protect attorney-client communications, CCA does not post this phone call procedure on its website or otherwise communicate this procedure to inmates' attorneys.[34] This surely explains the many affidavits of seasoned, experienced, highly competent counsel, who are members of the Court's selective panel of court-appointed lawyers, who aver that they were never aware of CCA's procedure for blocking calls to attorneys, and who gave credence to CCA's website and published policies that tout its commitment to protect Sixth Amendment rights. Other attorneys stated that although they were not aware of CCA's phone call procedure, out of an abundance of caution, they notified CCA by letter that they wanted their numbers blocked.

         The inadequacy of CCA's notice and instruction on its phone call procedure is demonstrated by the Special Master's analysis of how many phone numbers have been designated as “private” in the Securus system at CCA-Leavenworth. CCA maintains a list of only 528 “private” attorney phone numbers, although there are approximately 18, 500 attorney phone numbers identified for attorneys practicing in the areas (Kansas, Missouri and Nebraska) where federal detainees at CCA are under prosecution. In other words, only a small fraction of attorney phone numbers are designated as private and blocked from recording by the Securus system at CCA-Leavenworth. This suggests that CCA's phone procedure has not been adequately communicated to inmates or their attorneys. This raises a serious question as to whether there was any knowing and intelligent waiver of attorney-client privilege.

         As troubling is the fact that the Securus system has not blocked phone calls to all numbers that attorneys have duly designated as private through the CCA phone procedure. Both anecdotal evidence and the Special Master's analysis demonstrates that the Securus system has failed to block recording of calls to all “private” numbers. Gary Hart, an experienced CJA panel attorney in this Court, submitted an affidavit detailing how he had followed CCA's phone procedure. He not only submitted an initial letter to CCA identifying his phone numbers that should be designated as private, Hart also followed up with annual letters to CCA confirming the same. Nonetheless, the Securus system recorded calls from Hart's clients at CCA. Hart subpoenaed from Securus recordings from January 1, 2000 to the present. Securus provided Hart with Call Detail Reports for 2005-2007 and 2009-2013 that included numerous recordings of attorney-client calls placed by his client, Domingo Uriarte. The Call Detail Report evidenced that calls from Uriarte to Hart were recorded as were calls from Uriarte to two attorneys who had previously represented him, Assistant Federal Public Defender Tom Bartee, and attorney Tricia Bath. Bartee understood that no calls to FPD attorneys were recorded by Securus. And Tricia Bath, like Hart, had duly followed the CCA phone procedure.

         The Special Master's investigation further revealed that Securus' recording of inmate calls designated as “private” is not a rare occurrence. For the time period from November 26, 2012 to December 15, 2016, in connection with the CCA investigation, the government obtained audio recordings of 182, 084 inmate outgoing phone calls from the 121 Securus pay telephones installed at CCA. Of those recorded calls, more than 700 were calls from inmates to their attorneys. And of those more than 700 calls, 188 were calls from inmates to attorney phone numbers that had been duly designated as “private” in the Securus system. Neither Securus nor CCA have explained how or why this happened.[35]

         This evidence informs the Court's finding that the operational and systemic issues with CCA's procedure and Securus's system have not been cured at this time. The evidence also suggests that even for those attorneys who have now followed CCA's phone procedure, their earlier recorded calls have not been erased by the Securus system, and are still accessible to the government. Absent clear evidence that these problems are cured, this Court will fashion prospective relief that recognizes that attorney-client phone calls are likely still being recorded.

         Moreover, while the Phase III investigation will not focus on the actions of CCA or Securus, CCA's procedures, and the deficiencies in the Securus system, informs the Court's decision that a Phase III investigation of the government's conduct is warranted. The evidence suggests that a significant number of attorney-client calls have been recorded, and given the government's practice of obtaining inmates' phone calls in this, and in other investigations, there are serious concerns about whether the government has at least inadvertently, if not intentionally, obtained attorney-client phone calls in this investigation and in other cases in which defendants have moved for relief. Needless to say, there are concerns about whether the government has listened to any attorney-client phone calls. Even though the audio recordings in this case have been impounded by the Court, the defendants in this case are understandably concerned that the government listened to those recordings before impoundment.

         The government's denials that it listened to any attorney-client phone calls does not obviate the need for a Phase III investigation into their conduct. To be sure, with respect to the audio recordings, the government's conduct has encouraged such suspicion. Before the Special Master was appointed, the government was not forthcoming about how it procured all of the audio recordings in its possession, for some of the recordings were subpoenaed, some were not. And, the government's litigating posture, as well as its past practices in obtaining jail calls, has fueled other defendants' suspicion that the government has listened to their audio recordings as well.

         The Phase III investigation will further focus on whether the government's conduct in obtaining attorney-client calls was intentional and purposeful, or inadvertent and unintentional. Although any intrusion into attorney-client communications is of grave concern, the government's intent or lack of intent will inform the Court as to the type and extent of appropriate remedial action the Court will order. Thus, the Court directs the Special Master to investigate the intent of the USAO's attorneys and staff as well as the intent of investigative agents.[36]

         The Court also directs the Special Master to investigate how the government used the information, if at all. Did the government use any such information in its investigative strategy, in its charging decisions, in its litigation posture on bond, or in defending motions filed by the defendant? Did the government obtain information, directly or indirectly, that it has or could use at trial, in plea negotiations, or in any other way?

         Here, the ways a defendant is potentially prejudiced are too numerous to catalogue. But, examples of the types of information the government might glean says it all: admissions, confessions, inculpatory evidence, exculpatory evidence, defense witnesses, alibis, defense strategy, attorney advice on sentencing, attorney mental impressions on strengths and weaknesses of evidence, and negotiating strategy and posture.

         V. ...

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