U.S. v. Lentz

Decision Date22 August 2005
Docket NumberNo. 1:01 CR 150.,1:01 CR 150.
Citation419 F.Supp.2d 820
PartiesUNITED STATES of America v. Jay E. LENTZ, Defendant.
CourtU.S. District Court — Eastern District of Virginia
MEMORANDUM OPINION

ELLIS, District Judge.

In this remanded kidnapping for murder prosecution, the defendant seeks suppression of certain tape-recorded telephone communications between defendant Jay E. Lentz ("Lentz") and his attorney regarding a murder-for-hire plot to eliminate key witnesses and the prosecutor in defendant's case. At issue is (i) whether the tape recordings are protected by the attorney-client privilege and (ii) whether the tape recordings were illegally obtained in violation of defendant's Sixth Amendment rights.

I.

The facts relevant to this motion to suppress occurred following remand of this case for retrial and while Lentz was incarcerated at Northern Neck Regional Jail (NNRJ) awaiting the retrial. Yet, a brief synopsis of the underlying kidnapping for murder prosecution and the procedural history of this case provides the context essential to a full understanding of the questions presented.1

Lentz is charged with kidnapping for murder in violation of 18 U.S.C. § 1201(a) for the disappearance and murder of his ex-wife, Doris Lentz ("Doris"). Because neither Doris' body nor a murder weapon were ever found, the government's case against Lentz in the first trial in June 2003 was largely circumstantial. In this regard, the government presented evidence at trial tending to show, inter alia, (i) that Lentz had physically and verbally abused Doris during their marriage; (ii) that, based on a prior arrangement between Doris and Lentz, Doris had gone to Lentz's house to pick up their daughter, Julia, on the day Doris disappeared; (iii) that Doris had told her mother, boyfriend, aunt, and friend that she was going to Lentz's house in Maryland to pick up Julia on the day she disappeared; (iv) that within days of Doris' disappearance, her car was found abandoned in a District of Columbia parking lot, unlocked, and with her purse and keys in plain view; (v) that there were blood stains in the car's interior, nearly all of which contained Doris' DNA; (vi) that one of the blood stains in Doris' car was a match for Lentz's DNA; and (vii) that the driver's seat of Doris' car had been adjusted to fit someone who (like Lentz) was much taller than Doris.

After two weeks of trial and approximately five days of jury deliberation, the jury convicted Lentz of kidnapping resulting in death in violation of 18 U.S.C. § 1801(a), but the district court then entered a judgment of acquittal on the ground that the government's evidence was insufficient to meet the holding element required by the statute. Because certain evidence not admitted at trial had found its way into the jury room, the district court also ordered a new trial. See United States v. Lentz, 275 F.Supp.2d 723 (E.D.Va.2003), rev'd in part, 383 F.3d 191 (4th Cir.2004) (Memorandum Opinion). On appeal, the Fourth Circuit reversed the trial court's judgment of acquittal, but upheld the grant of a new trial. See United States v. Lentz, 383 F.3d 191, 195 (4th Cir.2004) (Lentz I). Accordingly, the matter was remanded for a new trial to be conducted by a different district judge. See id. at 221. The matter is now here on remand for a retrial, which is now scheduled to commence on November 28, 2005.

During the interim between the remand of this case and the originally scheduled July 11 trial date, the case took a surprising twist. On May 19, 2005, the government, in an ex parte, under seal pleading, represented that it had information from inmate Christopher Jackmon ("Jackmon"), who was incarcerated with Lentz at NNRJ from late 2004 until early 2005, concerning Lentz's murder-for-hire plot. Specifically, Jackmon was prepared to testify that Lentz had discussed his case with him and ultimately had solicited Jackmon's help in a plot to kill (i) certain key prosecution witnesses Lentz believed had provided especially damaging testimony in his first trial; and (ii) one or both of the prosecutors in his case, namely Assistant United States Attorneys Steven D. Mellin and Patricia M. Haynes. Most relevant here, the government also represented that it had obtained tape recordings of three telephone conversations that occurred on January 10, 2005 between Lentz and his attorney, Frank Salvato, that the government believes corroborates Jackmon's story.2

These three telephone calls occurred between 9:39 a.m. and 10:26 a.m. on January 10, 2005, and were placed by Lentz to his counsel from a telephone located in "C Pod," the pod that included Lentz's cell at NNRJ. The record convincingly establishes that during the period in question, all outgoing telephone calls from NNRJ were recorded and subject to monitoring by jail officials and that Lentz and his counsel knew this was so. At the pretrial evidentiary hearing on this issue, Major Ted Hull, the assistant superintendent for the NNRJ, testified (i) that all outgoing telephone calls placed by inmates at NNRJ are placed through the same telephone system; (ii) that all such calls are subject to monitoring and recording; and (iii) that prior to connecting each outgoing call, the system plays a pre-recorded message, heard by both parties, stating that the call is subject to monitoring and recording.3 Accordingly, NNRJ has a recording of all outgoing inmate calls, including those made by Lentz on the day in question and, prior to connecting the parties, both Lentz and his counsel received the pre-recorded message advising them that the call would be recorded and was subject to monitoring. Indeed, Lentz and his counsel essentially acknowledged as much during the course of their conversations.4

The content of the three telephone calls at issue merits a brief description. During the first call, Lentz asked Mr. Salvato what he knew about "a guy named Ridley [who] got murdered at the Springfield Mall." When Mr. Salvato inquired why this murder was relevant to Lentz's case, Lentz explicitly refused to answer. Immediately following this exchange, Lentz began to press Mr. Salvato for details about Jackmon.5 In this regard, at one point Lentz explicitly stated to Mr. Salvato, "I'm asking you to certify some information. This is important." Presumably, what Lentz meant by this was that the purpose of his calls was to determine whether Jackmon had been telling Lentz the truth about being released from prison soon because a key witness in the case against Jackmon had been murdered. Lentz apparently believed that this murder was the handiwork of a "hit man" Jackmon had hired, and that the murder had taken place at Springfield Mall. During the third call, when Mr. Salvato inquired how Jackmon would be able to help Lentz, Lentz replied that Jackmon would be able to help Lentz secure a hit man "in case [Lentz] need[ed] something like that to happen in [his] case." The context of this statement leaves no doubt that the "something like that" to which Lentz referred was a murder-for-hire arrangement. Moreover, during these calls Lentz specifically directed Mr. Salvato not to call him by name, but to use an alias, "Bucks," instead. Over the course of these conversations, Mr. Salvato repeatedly asked Lentz if he was kidding about hiring a hit man. In response, Lentz stated that "[he doesn't] joke at 9 in the morning." Presumably to entice Mr. Salvato to empathize with him, Lentz stated that he was "sitting in the bowels of hell," that he was "at the end of his rope," and that "[he's] gotta do what [he's] gotta do to survive."

In sum, the three calls in question focus chiefly on whether Jackmon could be trusted regarding Lentz's possible use of a hit man to murder witnesses and perhaps a prosecutor prior to his forthcoming retrial. The contents of these calls, taken as a whole, invite the inference that Lentz was seriously considering a murder-for-hire plot, and was calling Mr. Salvato to inquire about Jackmon's reliability with respect to information Jackmon had provided Lentz about his own case.6

On May 19, 2005, the government filed an ex parte, under seal motion seeking an order permitting the government team investigating the taped calls to disclose the transcripts of those calls as well as the recordings of the calls themselves, to both the prosecutors assigned to conduct the Lentz retrial and the team of prosecutors investigating the murder-for-hire plot.7 That motion was denied, and the government was directed instead to deliver promptly to defense counsel a copy of the government's under seal motion and its attachments, which included the telephone call transcripts. See United States v. Lentz, Case No. 1:01cr150 (E.D.Va. May 20, 2005) (Order).8 Lentz was then allowed a period of time to investigate the matter, after which he moved, by counsel, to suppress all transcripts and recordings of his telephone conversations with his attorney. In Lentz's view, the telephone calls and their contents (i) are protected by the attorney-client privilege; and (ii) were illegally obtained in violation of his Sixth Amendment rights. The issue, then, is whether either the attorney-client privilege or Lentz's Sixth Amendment right to counsel precludes the government from using the contents of these telephone conversations for any purpose, including offering them at the retrial as evidence of Lentz's consciousness of guilt with respect to Doris' murder.9

II.

Few principles of law are as well-settled as the attorney-client privilege; it is a bedrock principle of the adversary system.10 In essence, the privilege's purpose is to encourage full and frank communication between attorneys and clients by according court-enforced protection against disclosure of such communications when the client invokes the...

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    ...surveillance.”). “The Sixth Amendment does not prevent the admission of a defendant's voluntary statements.” United States v. Lentz , 419 F.Supp.2d 820, 833 n. 32 (E.D.Va.2005) ; see also Sanders , 452 S.W.3d at 315 (“[N]either the Fourth, Fifth, or Sixth Amendment protects a suspect who vo......
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