Prison Phone Justice

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
GARY EYE,
Defendant.

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Criminal Action No.
05-00344-01-CR-W-ODS

REPORT AND RECOMMENDATION TO DENY
DEFENDANT’S MOTION TO DISMISS THE INDICTMENT
FOR VIOLATION OF THE ATTORNEY-CLIENT PRIVILEGE
Before the court is defendant’s motion to dismiss the
indictment on the ground that calls from defendant to his
attorney were recorded by CCA and distributed to the FBI, the
United States Attorney’s Office, and to counsel for defendant’s
wife.

I find that defendant has failed to establish a Sixth

Amendment violation of his right to effective assistance of
counsel, he has failed to establish a Fifth Amendment Due Process
violation, and he has waived any attorney-client privilege that
may have existed in his phone calls to his attorney.

Therefore,

defendant’s motion to dismiss the indictment, or in the
alternative to suppress the evidence, should be denied.
I.

BACKGROUND
On September 29, 2005, an indictment was returned charging

defendant with two counts of interference with federally
protected activities, in violation of 18 U.S.C. § 245(b)(2)(B);
one count of using or discharging a firearm during a crime of

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violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii); two
counts of using or discharging a firearm during a crime of
violence causing murder, in violation of 18 U.S.C. §§
924(c)(1)(A)(iii) and (j)(1); one count of tampering with a
witness, in violation of 18 U.S.C. §§ 1512(a)(1)(C) and
(a)(3)(A); one count of obstruction of justice, in violation of
18 U.S.C. § 1519; and one count of using fire to commit a felony,
in violation of 18 U.S.C. § 844(h)(1).

Co-defendant Steven

Sandstrom was charged in all of these counts and with one count
of threatening to retaliate against a federal witness, in
violation of 18 U.S.C. § 1513(b)(2).
On October 24, 2007, defendant filed the instant motion to
dismiss or, in the alternative, to suppress evidence seized
during the recording of defendant’s phone calls at CCA, on the
ground that defendant’s calls to his attorney were recorded
(document number 246).

On November 5, 2007, the government filed

a response indicating that no one from the government listened to
any part of the attorney-client calls, and the government was not
aware that the attorney-client calls had been recorded until
defense counsel notified the government.
I held a hearing on defendant’s motion on December 3, 2007.
Defendant was present, represented by John Osgood and Lance
Sandage.

The government was represented by David Ketchmark, Eric

Gibson, and Michael Green.

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The following witnesses testified:
1.

Special Agent Heith Janke, Federal Bureau of Investigation

2.

Special Agent Arch Gothard, Federal Bureau of Investigation

3.

Elise Marko, Financial Analyst with United States Attorney’s
Office

4.

Janine Shields, Mail Room Officer for CCA

5.

Kathy Clem, Mail Room employee at CCA

6.

Michael Crow, counsel for CCA

In addition, the following exhibits were admitted:
P. Ex. 1

AUSA David Ketchmark stipulation

P. Ex. 2

AUSA Michael Green stipulation

P. Ex. 3

DOJ Attorney Eric Gibson stipulation

P. Ex. 4

US Marshal letter

P. Ex. 5

Elsie Marko’s notes on 1D2

P. Ex. 6

Elsie Marko’s notes on 1D3

P. Ex. 7

Corrected transcript of attorney-client calls listened
to by Elsie Marko

P. Ex. 8

Call log from CCA referencing calls from June 8, 2006,
to August 1, 2006

P. Ex. 9

Call log from CCA referencing calls from August 1,
2006, to November 6, 2006

P. Ex. 16 Copy of grand jury subpoena and attachment
P. Ex. 17 Signature page from defendant’s CCA Inmate Handbook
signed by defendant indicating he received and read the
handbook
P. Ex. 18 CCA’s Inmate Handbook

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P. Ex. 19 Notation of e-mail attachment sent from Elsie Marko to
Special Agent Heith Janke with an attachment which is
P. Ex. 6
P. Ex. 21 Alex McCauley stipulation
D. Ex. 1

Letter from John Osgood to Warden dated September 4,
2005

D. Ex. 3

Letter from John Osgood to Warden on September 12, 2007

D. Ex. 4

Letter from Warden to John Osgood

D. Ex. 5

E-mail dated September 17, 2007, from John Osgood to
Mike Crow

D. Ex. 6

Letter dated September 19, 2007, from John Osgood to
Warden

D. Ex. 7

E-mail to John Osgood with a copy of a letter Lance
Sandage wrote asking for privatization

D. Ex. 8

Letter from David Ketchmark to John Osgood dated
September 24, 2007

D. Ex. 9

Letter from Michael Crow to John Osgood dated October
3, 2007

D. Ex. 10 Letter from John Osgood to Michael Crow dated October
8, 2007
D. Ex. 11 Letter from Michael Crow to John Osgood dated October
12, 2007
D. Ex. 12 Letter from Michael Crow to David Ketchmark and John
Osgood dated October 18, 2007
D. Ex. 13 Letter from David Ketchmark to court with copies to
counsel dated November 15, 2007
D. Ex. 14 Letter from David Ketchmark to court with copies to
counsel dated November 19, 2007
D. Ex. 15 Stipulation of John Osgood
D. Ex. 16 CCA’s phone policy

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D. Ex. 18 Photo copies of the disks provided by the government of
Eye and Sandstrom recordings that included attorney
client calls
D. Ex. 20 Letter to John Osgood from Michael Crow, outside
counsel for CCA
II.

FINDINGS OF FACT
Based on the evidence presented at the hearing, I make the

following findings of fact:
1.

The indictment returned on September 29, 2005,

contained a count against defendant and co-defendant Steven
Sandstrom alleging murder to prevent the victim from relaying
information to law enforcement, and another count against
Sandstrom for threatening to retaliate against a witness (Tr. at
8-9).

In addition, a criminal complaint was filed against Justin

Buchanan which alleges that he threatened retaliation against a
witness who was believed to be cooperating in the criminal case
against defendant and Sandstrom with Sandstrom having initiated
that threat (Tr. at 9).

Defendant was arrested and was detained

without bond at the facility run by Corrections Corporation of
America (“CCA”) in Leavenworth, Kansas.
2.

When an inmate arrives at CCA, that inmate is assigned

a personal identification number (“PIN”) (Tr. at 127).

The PIN

number gives each inmate access to the phone system (Tr. at 127).
CCA records every phone call (Tr. at 128).

In order to isolate

calls from an inmate, CCA uses the PIN number assigned to that
inmate (Tr. at 128).
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3.

The CCA Inmate Handbook states as follows:

Outgoing telephone calls.
(A) You will be issued a PIN number during the intake
booking process.
(1) Your PIN number is required to gain access to an
outside line.
(2) Using another inmate’s PIN number is not allowed
and will result in disciplinary action.
(B) Outgoing telephone calls may only be made collect or by
phone card.
(1) Use of telephones will be on a first come, first
serve basis. Phone calls are limited to 30
minutes.
(2) Three-way phone calls are not permitted. If
detected, your call will be terminated by the
phone company and/or phone number blocked.
(3) Telephone conversations may be monitored and/or
recorded for security reasons.
(Tr. at 129-130).
4.

Every inmate coming into CCA gets a copy of the CCA

Inmate Handbook (Tr. at 130).

The inmate has to sign an

acknowledgment of having received and read the handbook (Tr. at
130).

Defendant signed an acknowledgment indicating he had

received and read the inmate handbook (Tr. at 130-131; P. Ex.
17).
5.

When an inmate calls and someone answers, a recording

comes on that warns the recipient that the call is subject to
monitoring and recording (Tr. at 132).

About every five to ten

minutes during the call, the recorded voice will click in during
the conversation and repeat that the call is subject to
monitoring and recording (Tr. at 132).

On every phone at CCA is

a sign that warns that calls are subject to monitoring and

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recording (Tr. at 133).

If an inmate is in segregation, a roll

phone is brought to the inmate and plugged into the wall (Tr. at
133).

The phone has a cord long enough to reach all of the cells

in segregation (Tr. at 133).

The roll phone has a sign on it

that says the calls are subject to monitoring and recording, and
it gives instructions on how to use the phone (Tr. at 133).
6.

On a daily basis, Janine Shields, Mail Room Officer for

CCA, logs into the computer and clicks on live monitoring where
she can see every inmate who is on the phone at that time (Tr. at
131).

She clicks on and listens to the conversations as they are

happening (Tr. at 131).

In addition to spot checking phone

conversations, Officer Shields is sometimes directed by the Chief
of Security to watch a certain inmate and specifically listen to
that inmate’s telephone calls (Tr. at 131-132).
7.

Specific numbers can be privatized, and in that case

any calls to that number are not recorded (Tr. at 133-134).

If

Officer Shields clicks on the call to monitor it, she gets a
message saying the call cannot be accessed (Tr. at 134).

Numbers

can also be temporarily blocked or permanently blocked (Tr. at
134).

If Officer Shields privatizes a number, she has to put in

the reason, the date, and who requested that the number be
privatized (Tr. at 134).

In order to have a number privatized,

an attorney must provide a written request on his or her

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letterhead1 (Tr. at 147).

The number would be privatized as to

every inmate, not just as to the current client (Tr. at 147-148,
164).

If the lawyer changes his or her phone number, CCA must be

notified with a new privatization request for the new number (Tr.
at 148).
8.

In February 2006, agents spoke with Justin Buchanan who

provided information suggesting that defendant may have been
engaging in ongoing threats to have witnesses harmed while he was
at CCA (Tr. at 9-10).

Buchanan stated that defendant had asked

him for $5,000 to have co-defendant Sandstrom killed (Tr. at 10).
Defendant also said that he wanted Regennia Rios and Vincent
DeLeon both killed (Tr. at 10).

Defendant was to pay $15,000 for

certain people to be killed and $6,000 for others to be killed,
and Stephanie Eye was to make the payments2 (Tr. at 41).
9.

In approximately July 2006, an inmate at CCA named Eric

Eymard contacted the FBI requesting that he be interviewed (Tr.
at 11).

Eymard was interviewed by the FBI on July 10, 2006, and

1

Shortly after the Eighth Circuit’s decision in United
States v. Hatcher, in 2003 (discussed below), John Osgood called
the Chief of Security at CCA and stated that he did not want any
attorney-client telephone calls recorded (D. Ex. 15). He was
informed that a note would be made of this and his telephone
calls would be excluded from recording (D. Ex. 15). Mr. Osgood
was never informed that such a request had to be in writing (D.
Ex. 15).
2

Inmate Eric Eymard actually received $45 in wire transfers
and his sister, mother, and someone in Texas received an
additional $500 (Tr. at 41).
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on July 24, 2006 (Tr. at 11).

Eymard said that defendant was

asking for help in either killing witnesses or making sure they
did not show up for defendant’s trial (Tr. at 12).

Eymard

indicated that defendant’s fiancée at the time but who is now
defendant’s wife, Stephanie Eye, was also involved (Tr. at 12).
Eymard said that defendant used the phone a lot at CCA (Tr. at
12).
10.

Based on the charges in the original indictment dealing

with killing or harming witnesses, the information received from
Mr. Buchanan, and the information received from Mr. Eymard, the
FBI decided to open a collateral investigation surrounding the
alleged threats in which defendant was purportedly involved (Tr.
at 13).

The FBI prepared a subpoena directed at CCA requesting

all visitation logs from June 8, 2006, to the present as to
defendant and all telephone calls also since June 8, 2006, made
by defendant with the exception of calls to 816-525-8200 or any
other phone number deemed to be an attorney-client call (P. Ex.
16).

June 8, 2006, was chosen as the start date because that was

the day Eric Eymard was placed in segregation at CCA and is the
earliest date he would have had contact with defendant (Tr. at
14).
11.

When CCA gets such a subpoena, Janine Shields looks up

the inmate’s PIN and puts the PIN and the date parameters into
the computer (Tr. at 135).

CCA can hold about six to nine months

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worth of phone calls before they are destroyed (Tr. at 135).

If

the inmate had made a call to a privatized number, the computer
report would show that a call was made to that number, but the
report would say the call was not recorded (Tr. at 135).

At no

time prior to the issuance of the subpoena did any lawyer for
defendant Gary Eye request in writing to have his or her phone
number privatized (Tr. at 136, 142).
12.

Officer Shields received the subpoena for defendant’s

phone calls, and she gathered them using her computer and burned
them to disks (Tr. at 137-138, 143).

She gets about one hundred

similar requests per year (Tr. at 138).

When she burns the

disks, she also prints off the call log which shows the numbers
called and the dates of the calls (Tr. at 138).

In order to

exclude calls to a certain number when that number had not been
privatized, Officer Shields would have had to go into her
computer and individually click on each call that needed to be
burned to a disk (Tr. at 142).

There is no short-cut; unless the

number has been privatized, the only way to exclude those calls
from such a report would be to manually check every single call
by the inmate before copying the calls to disks (Tr. at 143).
Officer Shields does not listen to the calls when she copies them
(Tr. at 144).

No one at CCA listened to the calls in responding

to the subpoena (Tr. at 144-145, 168).

CCA does not keep copies

of the disks or of the phone logs; CCA only keeps the subpoena

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(Tr. at 145).

It took Officer Shields several hours to burn

disks of the calls because defendant made a lot of phone calls
and each disk holds only 3,000 minutes so she had to complete the
burns 3,000 minutes at a time (Tr. at 148).
13.

CCA has no subpoena from the U.S. Marshal’s Service,

but Officer Shields remembers preparing disks for the Marshal
with respect to defendant Gary Eye (Tr. at 146).

She believes it

was the Marshal’s Service because that is the only organization
that can get phone calls from CCA without a subpoena (Tr. at
150).

She believes it was in April or May of 2007 (Tr. at 147).

The disks sat on her desk for a month or two, and she told
Officer Clem (who fills in for Officer Shields in her absence)
that someone was supposed to come by to pick them up (Tr. at 147,
167).

When Officer Shields returned from vacation, the disks

were gone (Tr. at 147).

It is Officer Shields’s recollection

that Officer Clem told her someone had come by to pick the disks
up (Tr. at 147).

United States Marshal for the Western District

of Missouri Mauri Sheer has no record of anyone from his office
requesting or receiving disks of defendant’s phone calls, and he
contacted the Marshal’s office in the District of Kansas and was
told that no one from that office requested or received disks
either (P. Ex. 4).

Officer Clem has no recollection of anyone

picking up disks while Officer Shields was on vacation (Tr. at
170).

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14.

That month, Elsie Marko with the U.S. Attorney’s Office

was assigned to assist with the Eye/Sandstrom case (Tr. at 72).
She was told that there was going to be a large number of jail
phone calls that she would need to listen to (Tr. at 72).
15.
at 15).

The subpoena was served on CCA on November 3, 2006 (Tr.
CCA mailed a copy of six DVDs containing telephone calls

and two call logs, and those were received by the FBI on November
9, 2006 (Tr. at 16).

The DVDs contained a total of 26,000

minutes of telephone conversations (Tr. at 88).

Each DVD

received its own 1D number when logged into to the ELSUR3 unit
(Tr. at 16).

1D1 would not duplicate, so CCA mailed another

which was received on November 27, 2006, and it was assigned the
number 1D7 (Tr. at 17, 24).
(Tr. at 17).

Work copies of the DVDs were made

When the DVD was inserted into a computer, a list

of every phone call would come up on the computer screen (Tr. at
77).

When you double click on a reference number, the call is

played (Tr. at 77).
16.

On November 29, 2006, before any of the DVDs were

reviewed, a meeting was held between Special Agent Janke, Special
Agent Gothard, and AUSA Michael Green to discuss privileges (Tr.
at 18, 52).

Although they were not expecting any attorney calls

because the subpoena had stated that no calls to or from attorney

3

ELSUR refers to the electronic surveillance unit (Tr. at
49). The ELSUR unit maintains control and custody of all audio
and video recordings (Tr. at 49).
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should be included, out of an abundance of caution the agents
were instructed to stop listening to a telephone call if they
came across one that was with an attorney (Tr. at 19, 53, 65).
The agents were instructed to draft a 3024 noting the number, the
date they listened to the call, and the time when they stopped
listening to it (Tr. at 19, 53).

Special Agent Janke is an

attorney, and he understands the ethical obligations placed on
attorneys with respect to attorney-client privileges (Tr. at 19).
No one was told to review attorney phone calls pursuant to a
crime-fraud exception (Tr. at 65).
17.

In addition to the two special agents, Elsie Marko with

the United States Attorney’s Office was to assist in reviewing
the DVDs (Tr. at 20).

She met with AUSA Ketchmark on November

30, 2006, and he told her that if she came across a call
involving an attorney, she was to immediately stop listening to
it and to note at what point she stopped within the call (Tr. at
73-74, 97, 98, 116).

She and the two agents were to begin in

different places so they were not all reviewing the same calls
(Tr. at 20).

Ms. Marko began with 1D3 which covered calls from

July 11, 2006, through August 1, 2006 (Tr. at 20).

In addition,

two other special agents, Jessica Branaman and Chris Sanders,
were to review some of the calls (Tr. at 21).

They were

4

An FBI 302 is a report generated by the FBI after a witness
is interviewed (Tr. at 49).
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instructed not to listen to calls to or from attorneys (Tr. at
21, 65, 66-67).

Special Agent Branaman did not wind up listening

to any of the CCA calls (Tr. at 21).

Instead, she listened to

calls made from the Jackson County jail (Tr. at 22).

Special

Agent Sanders listened to calls on 1D2 and did minimize one or
more calls (Tr. at 22).
18.

Because of the amount of work on this and other cases,

Special Agents Janke and Gothard relied almost solely on Ms.
Marko’s review of the phone calls (Tr. at 23, 54, 63).

Special

Agent Janke reviewed calls that were flagged by Ms. Marko as
being potentially relevant, i.e., calls which contained
conversation about the planning of threats or harming witnesses
(Tr. at 24, 75).

He also listened to a few calls from 1D7 which

were around June 21, 2006 (Tr. at 25).

None of the calls

reviewed by Special Agent Janke were to or from an attorney (Tr.
at 26).

Special Agent Janke has never listened to any recorded

call between defendant or co-defendant Sandstrom and an attorney
(Tr. at 26-27).

Special Agent Janke knows of no one with the

government5 who has listened to any calls between the defendants

5

AUSA David Ketchmark has not listened to any of the
recorded phone calls (P. Ex. 1). AUSA Mike Green has not
listened to any of the recorded phone calls (P. Ex. 2). Eric
Gibson, Department of Justice, has not listened to any of the
recorded phone calls (P. Ex. 3). Mr. Ketchmark, Mr. Green, and
Mr. Gibson were unaware that any attorney-client phone calls had
been copied to the disks in compliance with the government
subpoenas (P. Ex. 1; P. Ex. 2; P. Ex. 3).
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and their attorneys (Tr. at 27).

It is his belief that the only

people who have listened to any part of those calls are Ms. Marko
and Special Agent Sanders, both of whom stopped listening as soon
as it was determined the conversation would include an attorney
(Tr. at 27).
19.

Special Agent Sanders reviewed 1D2, and the first call

on the disk was to defense counsel John Osgood (Tr. at 34).
Special Agent Sanders stopped listening to the call (Tr. at 3435).

Ms. Marko also listened to the 1D2 disk (Tr. at 40).

This

was because Agent Sanders was abruptly transferred to Quantico
(Tr. at 43).
20.

Special Agents Janke and Gothard were not aware that

any attorney calls were on those disks until defense counsel
called the prosecutor in September of 2007 after receiving a copy
of the disks (Tr. at 38, 54).

During the nine months between the

receipt of the disks and that call, Ms. Marko was the one
listening to the calls (Tr. at 38, 64).

She did not discuss with

the agents that there were attorney calls on the disks and that
she was minimizing them, because she was not instructed to report
back to them every time she minimized a call (Tr. at 38, 43,
116).

Rather, she was providing them with what she deemed to be

relevant calls as well as a log or summary of her review of the
calls (Tr. at 43, 53-54, 63-64).

She may have pointed out to

them certain calls she thought were relevant and should be

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transcribed (Tr. at 115).

The summaries were provided to Special

Agent Janke once Ms. Marko’s review of each disk was complete
(Tr. at 119, 173-174).
21.

Ms. Marko’s summaries included the i.d. number of each

call, the length of the call according to the disk, her summary
of the call, and her opinion as to its relevance (Tr. at 78).
She divided relevance into three categories:

calls relevant to

the threat investigation, calls irrelevant to the threat
investigation, and attorney-client calls (Tr. at 80).

She did

not talk to any Assistant United States Attorney about listening
to parts of attorney conversations (Tr. at 87).

She just

minimized as directed and made a note of it in her summaries (Tr.
at 87).

Although the lengthy identification number for each call

included the telephone number called, Ms. Marko did not pay
attention to that because it was more time consuming to separate
out the phone number than to begin the call and stop listening if
it was an attorney call (Tr. at 89, 105).

With 26,000 minutes of

calls to review, time was of the essence and she went from one
call to the next when reviewing the calls on the DVDs (Tr. at 89,
105).

She had not been instructed to filter out calls by the

identification number, she had been instructed to stop listening
if the call included an attorney (Tr. at 105-106).
22.

During her review of 1D2 and 1D3, Ms. Marko came across

seven calls to an attorney, and she minimized those calls (Tr. at

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As soon as she realized an attorney was on a call6, she

80).

stopped listening (Tr. at 87).

Sometime around late August or

September 2007, AUSA Ketchmark asked Ms. Marko if she had come
across any calls to attorneys in her review of the DVDs, and she
told him she had but that she had employed the minimizing
techniques as she had been instructed (Tr. at 90, 91, 106).

Ms.

Marko was instructed through a court order entered on November
14, 2007, to provide a transcriptionist with the DVDs, and the
transcriptionist transcribed the calls up to the point where Ms.
Marko indicated she had stopped listening (Tr. at 82; doc. #252).
After the transcripts were prepared, Ms. Marko reviewed them and
discovered that a couple of the calls had been transcribed a few
words beyond where she had stopped listening7 (Tr. at 83).

The

transcript was corrected and was filed with the court (Tr. at 83-

6

Ms. Marko testified that the calls started out with a
recording, “Hello, this is a collect call from” and then the
defendant would say his name (Tr. at 103). On some calls, he
said, “It’s me, baby,” or “It’s Gary,” or “Pick up the phone,
honey” (Tr. at 103). On the call to Mr. Osgood’s office, he
said, “Gary Eye” (Tr. at 103). Next is another recorded message,
“This is a call from a person at the Correctional Facility. To
accept charges, press zero. This call is subject to monitoring
and recording. Thank you for using Evercom.” (P. Ex. 7, page 1).
On calls where the call was answered, “Law Office”, the reason
the call is transcribed beyond that point was that it took a
second or two for Ms. Marko to use her mouse to click and stop
the call (Tr. at 107). She was typing notes of each call as she
listened to it, and had to move her hand from the keyboard to the
mouse (Tr. at 109-110).
7

Ms. Marko determined this by putting the disks in her
computer, listening to the point where she had marked she
stopped, and compared that to the transcripts (Tr. at 108-109).
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84; P. Ex. 7).

None of the calls heard by Ms. Marko included any

conversation other than defendant asking for John Osgood, except
on one call Mr. Osgood asked defendant how he was doing and
defendant said “fine” (P. Ex. 7).

The transcriptionist

instructed Ms. Marko to destroy the original transcripts that
went beyond where she had listened, so she did (Tr. at 107).
23.

Special Agent Gothard had not listened to any of the

recorded phone calls prior to the time Mr. Osgood notified the
government in September 2007 that attorney calls had been
recorded (Tr. at 55).

Special Agent Gothard has not listened to

any calls provided by CCA that were to or from an attorney (Tr.
at 55-56).

It is Special Agent Gothard’s belief that no person

associated with the government has listened to the substantive
part of any conversation involving an attorney (Tr. at 56).
24.

The United States Attorneys Office had given copies of

the recorded phone calls to Alex McCauley, an attorney
representing Stephanie Eye (Tr. at 39).

Mr. McCauley was

appointed to represent Ms. Eye after she received a target letter
(Tr. at 44; P. Ex. 21).

Mr. McCauley was originally to get DVDs

of only the calls relevant to his client, but because it would be
very cumbersome to duplicate the disks in that manner, the disks
were simply copied in their entirety and Mr. McCauley was
directed to the relevant calls (Tr. at 44, 92-93).

Ms. Marko was

instructed to duplicate the disks, and she did that (Tr. at 113-

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115, 117).

She did not know how to isolate certain calls by

transferring them to a hard drive, and she was not instructed to
copy the disks that way (Tr. at 114-115).

The calls were played

for Mr. McCauley in Ms. Marko’s office (Tr. at 93).

Special

Agent Gothard told Mr. McCauley that this was a sensitive
investigation and the disks were the property of the government
(Tr. at 93).

This meeting with Mr. McCauley happened after Mr.

Osgood had notified the United States Attorney’s Office that
privileged calls appeared on his disks (Tr. at 175-176).
Although AUSA Ketchmark was aware that attorney-client calls had
been recorded, he was not aware that those calls were on the
disks given to Mr. McCauley (Tr. at 176).

Mr. McCauley began to

listen to a call but recognized the voice of John Osgood (P. Ex.
21).

He stopped listening to the call, skipped all other calls

with that number in the identifier, and notified Mr. Osgood that
the attorney-client call was in his possession (P. Ex. 21).

Mr.

McCauley has no recollection of the substance of the one call he
did listen to (P. Ex. 21).
25.

When Ms. Marko reviewed other disks, she only opened

calls with Stephanie Eye’s phone number in the identification
number, so she did not run across any more attorney conversations
on other disks (Tr. at 95).

By this time, she had memorized the

phone numbers to lawyers and looked for them in the

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identification number (Tr. at 96).

If those numbers appeared,

she did not open the call (Tr. at 96-97).
III. MOTION TO DISMISS
Defendant argues this his Fifth Amendment due process rights
and his Sixth Amendment right to counsel have been violated as a
result of the phone calls to his attorney having been recorded by
CCA.
A.

EFFECT OF OVERHEARD CONVERSATIONS
Defendant argues that the indictment should be dismissed8

or, in the alternative, that the evidence obtained through
recorded phone calls at CCA should be suppressed because his
conversations with his attorney were recorded by CCA and turned
over to the FBI.
More than four decades ago, the United States Supreme Court
denied a petition for certiorari in Black v. United States, 385
U.S. 26 (1966), a case which initiated a belief among some that
when attorney-client conversations are recorded and presented to
the government, a reversal of any conviction is appropriate.

In

Black, the Supreme Court was made aware after the petition for
certiorari had been denied but before an application for
rehearing had been filed that FBI agents installed a listening
device in Black’s hotel on a matter unrelated to his current

8

Defendant has cited no case which held that dismissal of an
indictment is an appropriate remedy even where a constitutional
violation is found to have occurred.
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case.

They intercepted conversations between Black and his

attorney, but those conversations were unrelated to his pending
tax evasion case.

The FBI made reports and memoranda of the

attorney-client conversations and those were examined by the Tax
Division attorneys prior to trial.

The Tax Division attorneys

found nothing in the FBI reports which they considered relevant
to the tax evasion case.

However, the Solicitor General

suggested to the Supreme Court that the tax evasion conviction be
vacated and remanded to the district court where the materials
could be reviewed.

The Supreme Court wrote:

[U]nder the circumstances presented by the Solicitor General
in this case we believe that a new trial must be held. This
will give the parties an opportunity to present the relevant
evidence and permit the trial judge to decide the questions
involved. It will also permit the removal of any doubt as
to Black’s receiving a fair trial with full consideration
being given to the new evidence reported to us by the
Solicitor General.
The following year, the Supreme Court vacated a conviction
against Charles O’Brien and remanded for a new trial, all without
explanation.

O’Brien v. United States, 386 U.S. 345 (1967).

Justice Harlan, dissenting, outlined the history of the case.
The FBI installed a microphone in a commercial establishment
owned by an acquaintance of O’Brien.

At one point, O’Brien was

overheard by the FBI asking his attorney to file an application
relating to the territorial conditions of his release on bond.
The FBI did not provide any reports or summaries of this call to
the government attorneys; however, the Solicitor General, in
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notifying the Supreme Court of the overheard attorney-client
conversation, stated that he would “not oppose” a remand of the
case for an adversary hearing as to the effect of this activity
on the validity of the conviction.

Justice Harlan wrote:

As I stated in dissenting from a similar disposition in
Black v. United States, 385 U.S. 26, “I agree, of course,
that petitioner is entitled to a full-scale development of
the facts, but I can see no valid reason why this
unimpeached conviction should be vacated at this stage. . .
. [A] new trial is not an appropriate vehicle for sorting
out the eavesdropping issue because until it is determined
that such occurrence vitiated the original conviction no
basis for a retrial exists. The Court’s action puts the
cart before the horse.”
In Black, the Court’s disposition might conceivably be
accounted for by the fact that the Government admitted that
the contents of the recorded conversation had been
incorporated in memoranda used by the prosecuting attorneys.
In the present case, however, I can think of no
justification for going beyond the position of the Solicitor
General and forcing the Government to go through the effort
and expense of an entirely new trial on the basis of this
peripheral, totally insignificant, and uncommunicated
eavesdropping.
A decade later, the Supreme Court was presented with a
similar issue in Weatherford v. Bursey, 429 U.S. 545 (1977).

In

that case, Bursey filed a § 1983 action against Weatherford, an
undercover agent.

Bursey and Weatherford, in his undercover

capacity, had vandalized the offices of the Selective Service.
Police were advised of the incident by Weatherford who was
arrested along with Bursey to protect his undercover status.
Both were released on bond and hired attorneys.

Bursey and his

attorney requested Weatherford attend two meetings, which he did,

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and the approaching trial was discussed.

Weatherford had told

Bursey that his attorney was going to request a severance, and
neither Bursey nor his attorney questioned that move.

At no time

did Bursey or his attorney ask Weatherford if he was an informer.
At no time did Weatherford relay the substance of these meetings
to his superiors or to the prosecuting attorneys.
The government had not planned to call Weatherford as a
witness so he could continue his undercover activities.

However,

shortly before the trial, he was seen in the company of police
officers.

Because his undercover status was compromised, the

government decided at the last minute to call him as a witness.
Weatherford testified about the vandalizing incident, but not
about anything that was said during the attorney-client meetings
he attended.

Bursey was convicted.

Bursey filed a § 1983 action against Weatherford alleging
that Weatherford violated Bursey’s Sixth Amendment right to
counsel and his Due Process right to a fair trial.

The district

court found for the defendants, but the Fourth Circuit Court of
Appeals reversed, holding that “[W]henever the prosecution
knowingly arranges and permits intrusion into the attorney-client
relationship the right to counsel is sufficiently endangered to
require reversal and a new trial.”

The court thought Weatherford

was himself a member of the prosecution and that therefore it was
also immaterial that he had not informed other officials about

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what was said or done in the two meetings with Bursey and his
attorney.

The court of appeals relied on the “per se rule”

established in Black v. United States and O’Brien v. United
States.
The Supreme Court reversed, apparently perplexed that the
court of appeals would read a per se rule finding a violation of
the Sixth Amendment and the Due Process clause when neither of
those Constitutional provisions had been mentioned in either the
Black or the O’Brien cases.
Both Black and O’Brien involved surreptitious electronic
surveillance by the Government, which was discovered after
trial and which was plainly illegal under the Fourth
Amendment9. . . . It is difficult to believe that the Court
in Black and O’Brien was evolving a definitive construction
of the Sixth Amendment without identifying the Amendment it
was interpreting, especially in view of the well-established
Fourth Amendment grounds for excluding the fruits of the
illegal surveillance. If anything is to be inferred from
these two cases with respect to the right to counsel, it is
that when conversations with counsel have been overheard,
the constitutionality of the conviction depends on whether
the overheard conversations have produced, directly or
indirectly, any of the evidence offered at trial. This is a
far cry from the per se rule announced by the Court of
Appeals below, for under that rule trial prejudice to the
defendant is deemed irrelevant. Here, the courts below have
already conducted the “judicial determination,” lacking in
Black and O’Brien, of the effect of the overheard
conversations on the defendant’s conviction, and there is
nothing in their findings or in the record to indicate any
“use of evidence that might be otherwise inadmissible.” . .
.

9

In order to overhear conversations, the government had used
electronic listening devices similar to the tubular microphone
found in Silverman v. United States, 365 U.S. 505 (1961), to
constitute a violation of the Fourth Amendment due to
unauthorized physical penetration of the petitioner’s premises.
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Had Weatherford testified at Bursey’s trial as to the
conversation between Bursey and [his attorney]; had any of
the State’s evidence originated in these conversations; had
those overheard conversations been used in any other way to
the substantial detriment of Bursey; or even had the
prosecution learned from Weatherford, an undercover agent,
the details of the Bursey-[attorney] conversations about the
trial preparations, Bursey would have a much stronger case.
. . .
If the fact was, as found by the District Court, that
Weatherford communicated nothing about the two meetings to
anyone else, we are quite unconvinced that a constitutional
claim under the Sixth and Fourteenth Amendments was made
out. . . . As long as the information possessed by
Weatherford remained uncommunicated, he posed no substantial
threat to Bursey’s Sixth Amendment rights. . . . [U]nless
Weatherford communicated the substance of the Bursey[attorney] conversations and thereby created at least a
realistic possibility of injury to Bursey or benefit to the
State, there can be no Sixth Amendment violation . . . .
There being no tainted evidence in this case, no
communication of defense strategy to the prosecution, and no
purposeful intrusion by Weatherford, there was no violation
of the Sixth Amendment.
Weatherford v. Bursey, 429 U.S. at 551-558.
For a defendant to be entitled to any type of remedy, he
must establish “that the constitutional infringement identified
has had or threatens some adverse effect upon the effectiveness
of counsel’s representation or has produced some other prejudice
to the defense.”
(1981).

United States v. Morrison, 449 U.S. 361, 365

Furthermore, if the defendant cannot establish such an

impact on the criminal proceeding, there is no basis for imposing
any remedy, because the proceeding “can go forward with full
recognition of the defendant’s right to counsel and to a fair
trial.”

Id.

This is true even if the violation may have been

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deliberate.

Id.

The burden of proof to establish a violation

and resulting prejudice is on the defendant.

See United States

v. Solomon, 679 F.2d 1246, 1250 (8th Cir. 1982).
In this case, I find that defendant has failed to satisfy
his burden of proving a violation and resulting prejudice.

The

uncontroverted evidence establishes that defendant’s calls to his
attorney were recorded after (1) defendant was informed by CCA
that all calls on the prison phones would be recorded, (2)
defendant was informed by the signs on all phones at CCA that
calls would be recorded, (3) defendant and his lawyer’s office
were informed through recordings preceding every phone call that
calls were subject to monitoring and recording.

The

uncontroverted evidence also establishes that no one from the
FBI, the United States Marshal Service, or the United States
Attorney’s Office heard any part of any attorney-client
conversation other than a few seconds which included nothing more
than “how are you doing?”.
Defendant has not established that the government purposely
obtained the attorney-client phone calls.

To the contrary, the

government attempted to have those calls excluded by the wording
of the subpoena; and the government instructed anyone tasked with
listening to the recorded calls to immediately stop listening to
the call and record the number of seconds that had elapsed before

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the call was stopped if indeed an attorney-client call slipped
through.
Defendant has not established that anyone has overheard any
significant part of any attorney-client call.

One FBI agent

heard the very beginning of one or more attorney-client calls and
immediately stopped listening.

One employee of the United States

Attorney’s Office heard a few seconds of approximately six or
seven attorney-client calls, and none of those calls involved
anything more than hello, how are you doing.
There is no evidence that any attorney-client discussion was
overheard by anyone.

Therefore, defendant clearly cannot

establish any type of prejudice10.

As in Weatherford v. Bursey,

the information recorded by CCA has remained uncommunicated;
therefore, the recordings pose no substantial threat to
defendant’s Sixth Amendment rights.

Because no one has listened

to the substance of the attorney-client conversations, there is
no realistic possibility of injury to defendant or benefit to the
government; therefore, there can be no Sixth Amendment violation.
Because there was no tainted evidence in this case, no
communication of defense strategy to the prosecution, and no

10

Absent a showing of prejudice, defendant cannot make out a
Fifth Amendment Due Process claim. See United States v. Voigt,
89 F.3d 1050 (3rd Cir.), cert. denied, 519 U.S. 1047 (1996),
cited by defendant in his motion at pages 13-14, wherein the
court held that one necessary showing for a Fifth Amendment claim
is “actual and substantial prejudice”.
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purposeful intrusion by the government, there has been no
violation of the Sixth Amendment.
B.

WAIVER
In addition to the above, I find that defendant waived the

attorney-client privilege by communicating with his attorney on
the prison phones, because there is no question that he and his
attorney knew the calls could be recorded.
The undisputed evidence is that defendant was informed upon
arriving at CCA that all of his calls were subject to monitoring
and recording.

The telephones all have signs on them reminding

defendant that all calls are subject to monitoring and recording.
The recorded message at the beginning of every call warns both
parties that the calls are subject to monitoring and recording.
Every five to ten minutes during a phone call from CCA, the
parties are reminded again that the call is subject to monitoring
and recording.
In United States v. Hatcher, 323 F.3d 666 (8th Cir. 2003), a
defendant complained on appeal that the trial court erred in
refusing to order the government to disclose the conversations
between cooperating co-defendants and their attorneys,
conversations which had been taped while the co-defendants were
incarcerated.

The trial court had refused to order disclosure,

finding that the calls were protected by the attorney-client
privilege.

The Court of Appeals disagreed.

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The presence of the prison recording device destroyed the
attorney-client 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.
Id. at 674.
When 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.

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), cert.
denied, 519 U.S. 912 (1996).

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.
States v. Horr, 963 F.2d 112 (8th Cir. 1992).

See United

In Horr, the

Eighth Circuit concluded that it was the inmate’s choice to use
the prison telephone to arrange his escape, and thereby consented
to the recording of those calls.
Horr impliedly consented to the taping of his telephone
conversations. Upon entering FMC, all prisoners are given
an admission and orientation handbook which indicates that
inmate telephone calls are monitored and recorded. Inmates
are also told about this policy at orientation. . . . Horr
signed a form indicating that he was aware of the telephone
policy. Moreover, Horr testified that he had seen signs
posted near the telephones which state: “The Bureau of
Prisons has the authority to monitor conversations on this
telephone. Your use of the institutional telephone
constitutes consent to this monitoring”. . . . Horr argues
that he did not consent to the taping because he had no
choice concerning whether he wanted to have his calls
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monitored. We disagree. Horr was aware of the telephone
monitoring policy. It was his choice to use the telephone
to conduct his illegal business. Having gambled by
discussing his escape on the prison telephone, Horr cannot
now be heard to complain that he lost.
Id. at 1126.
The attorney-client privilege belongs to and exists solely
for the benefit of the client, not the attorney.

Henderson v.

United States, 815 F.2d 1189, 1192 (8th Cir. 1987); In re Grand
Jury Proceedings, 655 F.2d 882, 885 (8th Cir. 1981).

Here, it is

clear that defendant waived his attorney-client privilege by
calling his attorney when he well knew that the calls could be
monitored and recorded by CCA11.
IV.

CONCLUSION
I find that defendant has failed to establish a Sixth

Amendment violation of his right to effective assistance of
counsel, he has failed to establish a Fifth Amendment Due Process
violation, and he has waived any attorney-client privilege that
may have existed in his phone calls to his attorney.

Therefore,

it is

11

Although Mr. Osgood stated that he had verbally requested
that his calls not be recorded, the evidence establishes that
every phone call from CCA includes a recording at the beginning
and every five to ten minutes during the call warning the parties
that the call is subject to monitoring and recording. It is
reasonable to expect someone hearing these recordings to inquire
at the institution if the calls really are being recorded given
the continued automated warnings on each call from CCA.
Presumably if such an inquiry had been made, Mr. Osgood would
have been informed that his number was still being recorded since
no written request for privatization had been received by CCA.
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RECOMMENDED that the court, after an independent review of
the pleadings and applicable law, enter an order denying the
defendant’s motion to dismiss the indictment and denying
defendant’s alternate remedy of suppression.
Counsel are advised that, pursuant to 28 U.S.C. § 636(b)(1),
each has ten days from the date of receipt of a copy of this
report and recommendation to file and serve specific objections
unless an extension of time for good cause is obtained.

ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
March 18, 2008

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