Attorney/Client Privileged Waived When Conversation Knowingly Recorded;
Interstate Commerce Proven With De Minimus Effect


The Eighth Circuit Court of Appeals held the government proved that
robberies of a jewelry store affected interstate commerce and the tape
recorded conversations of co-conspirators and their counsel waived
client-attorney privilege. This case was won on appeal after three
defendants were found guilty of, inter alia, interference with interstate
commerce by armed robbery of several Kansas City area jewelry stores.
The defendants argued the robberies did not substantially affect interstate
commerce. The Court held the government need prove only a de minimus effect
on interstate commerce, and stated "traditionally, the government meets the
de minimus standard under the depletion of assets theory. The government
presents evidence that a business is either actively engaged in interstate
commerce or customarily purchases items in interstate commerce, and has its
assets depleted by the robbery, thereby curtailing the business potential
as a purchaser of such goods." The Court found there was testimony the
jewelry stores regularly purchased their jewels from out of state sources,
and used those sources to replace the jewels stolen during the robberies.
Thus, there was sufficient evidence to support the jury instruction on
interstate commerce ...

Federal prisoner Gary Friedman filed a motion to suppress tape recordings
of certain telephone conversations that he made to his brother (an
attorney) while in county jail. The trial court denied Friedman's
suppression motion. Friedman appealed, claiming that the tape recordings of
these telephone conversations were obtained without a warrant in violation
of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the
"Act") and the Fourth Amendment.

The appellate court held that the secret monitoring and recording of
unprivileged conversations in jails, prisons, and police stations do not
constitute an unlawful search. The Court further held that the tape
recordings of Friedman's telephone calls to his brother were made during
routine monitoring of telephones located in cells at the county jail and
was a security measure that fell within the law enforcement exception to
Title II of the Act. See: People v. Friedman, Case No. B175695, 2005 WL
1662224 (Cal.App. 2 Dist., 2005) (Not reported in Cal.Rptr.3d).

By Bob Williams


On December 1, 2004, the Louisiana Supreme Court held the Caddo Parish
Sheriff's (Steve Prator) state court lawsuit against Caddo Parish was
decided in error by the State appellate court. Prator alleged in his
petition for declaratory judgment that the Parish was not entitled to
revenues generated at the Parish jail for commissary, telephones, vending
machines, and medical expenses for federal prisoners.

The trial court held that the Parish was not entitled to these revenues
because the Sheriff used them to offset jail expenses otherwise borne by
the taxpayers. On appeal, the appellate court held there was no
justiciable controversy regarding these issues. On certiorari, the State
Supreme Court reversed finding a justiciable controversy regarding the
revenue issue. The Supreme Court remanded this matter to the appellate
court to determine who should receive credit for housing out-of-Parish
prisoners at Caddo jail. See: Prator v. Caddo Parish, 888 So.2d 812 (La.
2004).

Florida's Fifth District Court of Appeals has held that a prisoner is not
entitled to claim attorney/client privilege to communications when the
person invoking the privilege knew of or should have known that the
privileged conversation was being overhead.

Before the court was the criminal appeal of Isa Black, who argued the
trial court abused its discretion by admitting testimony of his former
attorney and a tape recording of a telephone conversation with that
attorney. Black called his sister, who initiated a third-party call with
the attorney. During the conversation, the sister stayed on the line. The
conversation contained incriminating information: It was also recorded by
jail authorities in Orange County.

The Court said that under § 90.502(1)(C), Florida statutes a communication
between lawyer and client is confidential if it is not intended to be
disclosed to third persons other than:

1) Those to whom disclosure is in furtherance of the rendition of legal
services to the client.

2) Those reasonably necessary for the transmission of the communication.

The court held that because Black's sister was purposely included in the
conversation and Black knew or should have known the communication was
being monitored and taped by jail officials, the trial ...

The U.S. Supreme Court held that status as a Cabinet Officer is not in
itself sufficient to invest that officer with absolute immunity from suit.
In 1970, Attorney General John Mitchell authorized a warrantless wiretap
of William Davidson's telephone for the purpose of gathering intelligence
regarding the activities of a radical group known as the East Coast
Conspiracy to Save Lives. The Federal Bureau of Investigation learned of
an alleged plan to blow up heating tunnels linking federal buildings in
Washington, D.C., and the possibility of kidnapping then National Security
Advisor, Henry Kissinger. The tap was installed from November 1970 until
January 1971. Three conversations between Davidson and Keith Forsyth were
intercepted. The Supreme Court in U.S. v. U.S. District Court, 407 U.S. 297
(1972) (Keith), held the Fourth Amendment does not permit warrantless
wiretaps in cases involving domestic threats to national security.

Keith Forsuth then filed a damages action in Federal District Court against
Mitchell arguing the surveillance he had been subjected to violated the
Fourth Amendment and Title III of the Omnibus Crime Control and Safe
Streets Act. The District Court granted Forsyth's motion for summary
judgment on the issue of liability, holding Mitchell was not entitled to ...

In an unpublished order, the Seventh Circuit Court of Appeals reversed the
dismissal of an Illinois prisoner's racial discrimination and pepper spray
exposure claims.

Illinois prisoner Johnnie Flournoy brought suit in federal court asserting
several unrelated constitutional violations. The district court dismissed
many of those claims for failure to state a claim and others for failure to
exhaust administrative remedies.

The Seventh Circuit upheld the dismissal of Flournoy's denial of medical
care claim, finding that he failed to exhaust administrative remedies or
show that defendants rendered those remedies unavailable.

The court also upheld dismissal of his equal protection claim related to
the denial of a furlough to attend his dying father's funeral. Claiming
that he exhausted that claim, Flournoy pointed to a grievance that said
nothing about a furlough, thereby pleading himself out of court.

The court reversed the dismissal for failure to state a claim, of
Flournoy's race-based denial of telephone and visiting claims. The court
found that dismissal was precipitous because officials may not deny
prisoners privileges based on race.

The court also reversed dismissal of Flournoy's pepper-spray exposure
claim, finding that the district court erred in concluding that Flournoy
rested on the pleadings with respect to exhaustion. ...

At 778 n. 4: The defendant state police could not be held liable for the
plaintiff's inability to make a long distance call to his attorney from
jail, since the right to counsel had not yet attached after his arrest, and
the defendants had no control over jail policies. See: Fridley v. Horrigs,
162 F.Supp.2d 772 (S.D.Ohio 2000).

The plaintiff, a federal pre-trial detainee held in a local jail, was placed in administrative
segregation and lost telephone access based on a letter from the prosecutor to the U.S. Marshal, which requested such action because the plaintiff's superseding indictment named five new defendants who were not yet in custody and he might warn them. He was able to telephone no one but his attorney, and that based on a written request; however, he was able to visit personally with his attorney and with family and friends. His telephone access was restored after four and a half months.

Alaska law did not give rise to a liberty interest in telephone use. The relevant statute only requires "reasonable access" to a telephone, rather than prescribing an outcome, leaving prison officials with discretion to determine what reasonable access means. The accompanying regulations provide that access may be limited if there are reasonable grounds to think restrictions are required to protect the public. (1044 n.3: Sandin, which rejects this mode of analysis altogether, does not apply to pre-trial detainees.)

At 1045: "Pretrial detainees have a substantive due process right against restrictions that
amount to punishment." The defendants' actions were not punishment, since they ...

The criminal defendants were convicted based in part on recordings of their telephone calls from
jail. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 generally forbids
telephone surveillance without a warrant, but has exceptions for instances where one party has
consented and for telephones used by "an investigative or law enforcement officer in the ordinary
course of his duties." Consent may be express or implied, and implied consent has often been
found based on notice that calls will be listened to. The telephones in the jail cells did not have
signs indicating that calls made over them might be recorded; however, the booking area
telephones had signs saying that calls to attorneys made over them would not be monitored or
recorded.

The district court had found "a reasonable person could understand" that the booking area
telephone signs meant that calls from other telephones might be recorded, but that was not
sufficient notice to create implied consent. Instead, it relied on the "ordinary course" exception,
holding that notice was not required. The appeals court says that no circuit has ever applied the
"ordinary course" exception in a situation where at least one participant had not received ...

The Cook County Sheriff's Office in Illinois has agreed to pay 500 former
prisoners $50 per day for each day they were illegally shackled hand and
foot to a hospital bed. The lawsuit was filed originally by three
prisoners, Khalil Rohim, Wardell Hayes, Michael Dates, and Gregory Mays,
who received $65,000, $9,500, $7,500 and $6,500, respectively under the
settlement. The prisoners were handcuffed to beds at the Cook County
Hospital, which prevented them from going to court, using the telephone,
writing and reading.

The attorneys in this case, Thomas and Kevin Peters, received $445,000 in
attorney fees and costs. See: Rahim v. Sheahan, USDC, N. Dist Ill., Case No
99 C-0395