U.S. v. Faulkner

• Citation: 439 F.3d 1221
• Decision Date: 06 March 2006
• Docket Number: No. 05-3073.,No. 05-3061.,05-3061.,05-3073.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mario FAULKNER, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Antonyo Ladarrell Rodgers, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1221

439 F.3d 1221

UNITED STATES of America, Plaintiff-Appellee, v. Mario FAULKNER, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Antonyo Ladarrell Rodgers, Defendant-Appellant.

No. 05-3061.

No. 05-3073.

United States Court of Appeals, Tenth Circuit.

March 6, 2006.

Theodore J. Lickteig, Law Offices of Theodore J. Lickteig, Overland Park, KS, for the Defendant-Appellant, Mario Faulkner.

Stephen B. Chapman, Chapman & White, LLC, Olathe, KS, for the Defendant-Appellant, Antonyo Ladarrell Rodgers.

Terra D. Morehead, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with her on the brief), Kansas City, KS, for Plaintiffs-Appellees.

Before TACHA, Chief Judge, ANDERSON, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Mario Faulkner, Antonyo Ladarrell Rodgers, and Maurice Anthony Peters were charged in the United States District Court for the District of Kansas in a two-count indictment with attempt (Count 1) and conspiracy (Count 2) to murder Shedrick Kimbrel to prevent him from testifying in the federal kidnapping trial of Demetrius R. Hargrove. See 18 U.S.C. §§ 371, 1512(a). Peters pleaded guilty to Count 2 and agreed to cooperate with the prosecution. Mr. Faulkner and Mr. Rodgers (Appellants) went to trial. At the close of the evidence, the district court granted their motion to dismiss Count 1. The jury found them guilty on Count 2.

Before trial Appellants moved to suppress recordings of five telephone conversations between Hargrove and others (including themselves) while he was detained pending trial at the Corrections Corporation of America facility in Leavenworth, Kansas (CCA). They argued that the recorded conversations should be excluded from evidence under the Federal Wiretap Act, 18 U.S.C. § 2510 et seq. The district court held that the recordings were admissible under the "consent" exception in the Act. See 18 U.S.C. § 2511(2)(c)-(d). Appellants also filed a motion in limine arguing that admission of the conversations would violate the Confrontation Clause of the United States Constitution. U.S. Const. amend. VI. The district court ruled that the statements were not testimonial and therefore were not barred by the Confrontation Clause. During trial the court found that the tapes were properly authenticated and allowed them in as statements in furtherance of a conspiracy. On appeal Appellants contend that the district court erred in its rulings under the Wiretap Act and the Confrontation Clause. We affirm.

I. FACTUAL BACKGROUND

CCA is a privately operated prison which houses pretrial detainees under a contract with the United States Marshals Service. Upon arrival at CCA, detainees receive an orientation manual which states, among other things, that the "[t]elephones are subject to recording and monitoring." R. Vol. Five at 10. In addition, detainees are told during orientation that their calls "could be" recorded, id. at 11, they receive an inmate handbook which states that "[t]elephone conversations may be monitored and/or recorded for security reasons," id. at 13, and signs posted over each of the general-population phones announce that calls are subject to monitoring, id. at 14. Moreover, it appears that when a call is placed from CCA, a recorded voice states, "This call is subject to monitoring and recording." Id. at 23-24. All telephone calls are, in fact, recorded.

It was from these prison phones that Hargrove made calls and spoke with Appellants to conspire to murder Shedrick Kimbrel. The calls were monitored and recorded by CCA, and five of these calls were admitted as evidence at trial.

II. FEDERAL WIRETAP ACT

The Federal Wiretap Act "generally forbids the intentional interception of wire communications, such as telephone calls, when done without court-ordered authorization." United States v. Workman, 80 F.3d 688, 692 (2d Cir.1996). "It protects an individual from all forms of wiretapping except when the statute specifically provides otherwise." United States v. Hammond, 286 F.3d 189, 192 (4th Cir. 2002) (internal quotation marks omitted).

When information is obtained in violation of the Act, "no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial." 18 U.S.C. § 2515. But only an "aggrieved person. . . may move to suppress" a communication that was "unlawfully intercepted." Id. § 2518(10)(a); see Alderman v. United States, 394 U.S. 165, 175 & n. 9, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) (Congress could have excluded such evidence "against anyone for any purpose" but "has not done so. . . . Congress has provided only that an `aggrieved person' may move to suppress. . . a . . . communication intercepted in violation of the Act."). An "aggrieved person" is defined by the Act as "a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed." 18 U.S.C. § 2510(11). This standing requirement "should be construed in accordance with existent standing rules." Alderman, 394 U.S. at 176 n. 9, 89 S.Ct. 961. Generally, to establish standing the movant must show that (1) he was a party to the communication, (2) the wiretap efforts were directed at him, or (3) the interception took place on his premises. See United States v. Apple, 915 F.2d 899, 905 (4th Cir.1990). Of the five intercepted communications that were admitted at trial, Mr. Faulkner was a party to two and Mr. Rodgers was a party to another. On the record before us it does not appear that either has standing to challenge admission of any of the intercepted communications they were not parties to. Nevertheless, the government has not raised the issue, so we need not address it. See United States v. Dewitt, 946 F.2d 1497, 1499 (10th Cir.1991) (standing issue waived when not raised by government).

The government does not dispute that the Act applies to prisons. See Hammond, 286 F.3d at 192; United States v. Feekes, 879 F.2d 1562, 1565 (7th Cir.1989); United States v. Amen, 831 F.2d 373, 378 (2d Cir.1987). To justify the challenged interceptions, the government relies on the "law enforcement" exception, 18 U.S.C. § 2510(5)(a)(ii) (definition of interception excludes recording made by "any telephone. . . instrument, equipment or facility. . . being used by . . . an investigative or law enforcement officer in the ordinary course of his duties"), and the "consent" exception, id. § 2511(2)(d). The district court rejected the law-enforcement exception because there was no evidence that CCA officials had been granted law-enforcement authority by the Marshals Service. See id. § 2510(7) (defining investigative or law enforcement officer as one who is "empowered by law to conduct investigations of or to make arrests for" violations of Chapter 18 of the United States Code). But it ruled that the consent exception applied. Because we hold that the recordings were properly admitted under the consent exception, we need not resolve whether they might also have been admissible under the law-enforcement exception.

The consent exception provides:

It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

Id. § 2511(2)(d). (Section 2511(2)(c) provides the same exception for persons acting under color of law except that the "unless" clause is omitted.) It is generally accepted that a prisoner who places a call from an institutional phone with knowledge that the call is subject to being recorded has impliedly consented to the recording. See United States v. Footman, 215 F.3d 145, 154 (1st Cir.2000); Amen, 831 F.2d at 378-79 (2d Cir.); Hammond, 286 F.3d at 192 (4th Cir.); United States v. Horr, 963 F.2d 1124, 1126 (8th Cir.1992); United States v. Van Poyck, 77 F.3d 285, 292 (9th Cir.1996). The only circuit opinion to question this application of the consent exception is Feekes, 879 F.2d 1562. In that opinion the Seventh Circuit upheld the recording of prisoners' conversations under the law-enforcement exception to the Wiretap Act but added the following dictum in response to the contention that the consent exception applied because the prisoners had been notified that their calls would be monitored:

To take a risk is not the same thing as to consent. The implication of the argument is that since wiretapping is known to be a widely employed investigative tool, anyone suspected of criminal (particularly drug) activity who uses a phone consents to have his phone tapped — particularly if he speaks in code, thereby manifesting an awareness of the risk.

Id. at 1565.

We are not persuaded to depart from the unanimous view of the holdings by our fellow circuit courts. The issue is solely one of statutory interpretation. The Second Circuit observed that "[t]he legislative history shows that Congress intended the consent requirement [exception?] to be construed broadly," Amen, 831 F.2d at 378, noting in support that the Senate Report on the Wiretap Act said of the consent exception: "`Consent may be expressed or implied. Surveillance devices in banks or apartment houses for institutional or personal protection would be impliedly consented to.'" Id. (quoting S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2182). Of course, there is a difference between broad and unlimited. We agree with Feekes that engaging in drug trafficking does not in itself imply consent to a wiretap. But that is not this case. We are dealing here with incarcerated persons who receive very specific warnings about particular phones. To be sure, the prisoners...