U.S. v. Lewis

• Decision Date: 19 April 2005
• Docket Number: No. 03-2097.,03-2097.
• Citation: 406 F.3d 11
• Parties: UNITED STATES, Appellee, v. Shelton LEWIS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

406 F.3d 11

UNITED STATES, Appellee, v. Shelton LEWIS, Defendant, Appellant.

No. 03-2097.

United States Court of Appeals, First Circuit.

Heard November 1, 2004.

Decided April 19, 2005.

Leo T. Sorokin, with whom the Federal Defender Office was on brief, for appellant.

Donald L. Cabell, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before LYNCH, Circuit Judge, LEVAL,^* Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

Police investigating a robbery obtained a recorded phone conversation between two suspects, Shelton Lewis and Robert Correa, that took place while Correa was in pre-trial detention at the Plymouth County House of Correction. Before trial, Lewis moved to suppress the recording on the ground that it had been intercepted in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522. The district court denied Lewis's motion, and a jury subsequently convicted him of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), interference with commerce by robbery, 18 U.S.C. § 1951(a), and use of a firearm during a crime of violence, 18 U.S.C. § 924(c). Following the conviction, the court sentenced Lewis to 319 months in prison and 36 months of supervised release. Lewis now appeals both the denial of his suppression motion and his sentence. For the reasons set forth below, we affirm Lewis's conviction but remand for resentencing.

I.

During the early morning of September 7, 1999, three men robbed the Abington Ale House & Grill in Abington, Massachusetts, at gunpoint. The following day, the police arrested Robert Correa in connection with the robbery and detained him at the Plymouth County House of Correction (Plymouth). On September 9, 1999, while still at Plymouth, Correa spoke to Lewis by telephone. That call, like almost all calls made by Plymouth inmates, was recorded.

The Massachusetts Department of Corrections has authorized superintendents of its correction facilities to monitor and record inmate phone calls. Mass. Regs.Code tit. 103, § 482.07(3)(d). Under this regulation, superintendents must develop procedures to ensure that inmates have access to telephones in a way that is both orderly and safe. Id. § 482.07(1). Plymouth's procedure is known as the Plymouth Inmate Telephone System policy (PCCF-482). PCCF-482 provides for the recording of all inmate phone calls, except those to pre-specified clergy and attorneys.

Inmates are informed in at least two ways that their calls are monitored. First, in order to place outgoing calls, inmates must obtain an Inmate Personal Identification Number (IPIN). Doing so requires that they complete a form which includes the following notice: "Your acceptance of the IPIN and use of the inmate telephones will be deemed as consent to the conditions and restrictions placed upon inmate telephone calls, including call monitoring, recording, and call detail." Inmates and the recipients of their calls are also informed that their calls are monitored at the beginning of every call, when they hear the following recorded message: "Nynex has a collect call from [name], an inmate at the Plymouth County House of Correction. To refuse this call, hang up.... All call detail and conversation, excluding approved attorney calls, will be recorded. To accept this call, dial one now."¹

The Department of Corrections regulations do not specify whether outside law enforcement officials may listen to recorded inmate phone calls without first obtaining a court order. However, Plymouth policy states that "[c]riminal justice agencies outside the Plymouth County Sheriff's Department are allowed access to recorded tapes within the scope of their legally authorized request (i.e. court orders). Random or general access to monitored telephone conversations are [sic] strictly prohibited."

At some point after September 9, 1999, Massachusetts police officer John Brooks and Brockton police detective Joseph Cummings contacted Plymouth Telephone System Administrator George Pyne, asking to listen to Correa's outgoing calls. Pyne acquiesced, listening to the calls for the first time as he played them for the officers. The parties have stipulated that the officers subsequently subpoenaed cassette copies of the calls based on that session with Pyne. The government then sought to use one of the recorded calls at Lewis's trial.

On May 25, 2000, Lewis moved to suppress the recorded call. He asserted that by allowing Brooks and Cummings to listen to the recording, Pyne violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. §§ 2510-2522.² Relevant to this case, Title III prohibits the interception of telephone conversations, subject to certain exceptions, without a court order. 18 U.S.C. §§ 2511, 2518. Wire or oral communications intercepted in violation of Title III are inadmissible as evidence in court. 18 U.S.C. § 2515. The district court denied Lewis's motion, concluding that the recorded call fell within two of Title III's exceptions, the consent exception, 18 U.S.C. § 2511(2)(c), and the law enforcement exception, 18 U.S.C. §§ 2510(5)(a)(ii), 2517(1). See United States v. Correa, 220 F.Supp.2d 61 (D.Mass.2002).

Section 2511(2)(c) provides that, "It shall not be unlawful ... for a person acting under color of law to intercept a wire, oral, or electronic communication, where ... one of the parties to the communication has given prior consent to such interception." Lewis conceded that Correa had given such consent, but argued that the exception was nonetheless inapplicable because the scope of Correa's consent was limited by the terms set forth in PCCF-482 and the interception here violated those terms in two ways. First, Lewis emphasized that PCCF-482 authorizes call monitoring for internal security purposes, while here the monitoring was used for other investigative purposes. The court rejected this reasoning, noting that inmates are "told merely that all calls will be monitored and/or recorded. No indication of why the calls are recorded is given...." Correa, 220 F.Supp.2d at 64. Lewis also stressed that Pyne violated the terms of PCCF-482 by allowing outside law enforcement officers to listen to the tapes without first obtaining a court order. The court rejected this contention as well. Although the court agreed that Pyne had violated PCCF-482, it found that suppression does not necessarily follow. PCCF-482 was established, as noted earlier, under the power given correction facility superintendents by 103 C.M.R. 482. That regulation ... does not confer any procedural or substantive rights or any private cause of action not otherwise granted by state or federal law. 103 C.M.R. 482.01. In effect, this provision of the regulation tells defendants they must look elsewhere for a limitation on the scope of Correa's consent.

Id. at 64-65. The court thus concluded that "Correa consented to a monitoring and recording system that was unqualified in all relevant aspects" and that the recording was "permissible under the consent exception." Id. at 65.

The court then turned to Title III's law enforcement exceptions, one related to interceptions and one to disclosure. For Title III purposes, 18 U.S.C. § 2510(5)(a)(ii) exempts from the definition of "intercept" a communication acquired by a device "being used ... by an investigative or law enforcement officer in the ordinary course of his duties." A different exception, 18 U.S.C. § 2517(1), provides that:

Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, ... may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

The statute defines "[i]nvestigative or law enforcement officer" to include "any officer ... of a State or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter." 18 U.S.C. § 2510(7).

The court analyzed the applicability of these exceptions under a three-part test. First, it found that Pyne was an investigative or law enforcement officer for purposes of the statute because "prison officials must be deemed, at the least, to have authority to investigate potential criminal violations in the interest of prison security." Correa, 220 F.Supp.2d at 66. Second, the court reasoned that Pyne's recording was properly made in the "ordinary course of his duties" under § 2510(5)(a)(ii) "because it was done pursuant to 103 C.M.R. 482 and PCCF-482, and because Correa was not personally targeted by the recording program." Correa, 220 F.Supp.2d at 66. Finally, the court concluded that "having lawfully intercepted Correa's calls, Pyne did not violate Title III by playing the tapes for Brooks and Cummings." Id. The court opined that "disclosure absent a court order was not appropriate to Pyne's official duties." Id. at 67. But it emphasized that disclosure is also permissible under § 2517 when it is appropriate to the duties of the receiving officer. Here, "it is beyond dispute that it was proper for Brooks and Cummings ... to obtain evidence against the two men by any lawful means." Id. The court thus concluded that Title III did not prohibit use of the recorded conversation at trial, a ruling that Lewis now challenges on appeal.

Following a five-day trial at which the prosecution played excerpts of the recorded conversation, a jury convicted Lewis of all three counts on which he was indicted: being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1) (Count I), interference with commerce by robbery, 18 U.S.C. § 1951(a) (Count II), and use of a firearm during a crime of violence, 18...