U.S. v. Novak
| Decision Date | 26 September 2006 |
| Docket Number | Criminal Action No. 05-10260-RCL. |
| Citation | 453 F.Supp.2d 249 |
| Parties | UNITED STATES, v. Lawrence NOVAK, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Thomas R. Kiley, William J. Cintolo, Cosgrove, Eisenberg & Kiley, PC, Boston, MA, for Defendant.
Brian T. Kelly, George W. Vien, United States Attorney's Office, Boston, MA for United States.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS
The defendant, Lawrence Novak ("Novak"), is a Massachusetts attorney charged with two felony offenses against the United States. Specifically, Novak has been indicted on one count of endeavoring to obstruct justice, in violation of 18 U.S.C. § 1503, and two counts of money laundering, in violation of 18 U.S.C. § 1956(a)(3)(B) and (C). He now moves to suppress evidence against him on the ground that it is the fruit of the illegal interception of a telephone conversation with his client, Scott Holyoke, who was, at the time, in pretrial detention at the Barnstable County Jail (the "Jail"). For the reasons explained below, I GRANT the motion.
The following facts were developed at an evidentiary hearing on the motion held on August 2, 2006.
In July, 2005, Holyoke was being prosecuted in this district on charges related to methamphetamine trafficking, Hr'g Tr. 13, Aug. 2, 2006, and was being held in pretrial detention at the Jail. He was represented by Page Kelley of the Boston office of the Federal Defenders and was cooperating with the government. Hr'g Tr. 13-14; Affidavit of Lauren Youngquist. In contemplation of his approaching plea and sentencing, Holyoke sought to engage Novak to vacate certain of his prior state convictions, so that his criminal history category, and thus the range of any period of incarceration under the Sentencing Guidelines, would be reduced.
The Jail employs a system that generally records all telephone calls made from the facility. The calls are not monitored in real time, but some are monitored randomly after they are recorded. Hr'g Tr. 60. The system is computerized, allowing an official of the jail to sort calls by inmate number and to see the telephone number called before listening to the call. Hr'g Tr. 42-43.
Pursuant to state and federal regulations prohibiting the monitoring of inmates' properly placed calls to attorneys, the Jail requested that its telephone vendor, Securus,1 develop a list of attorney telephone numbers for which inmate calls from the Jail would not be monitored. Hr'g Tr. 71-73. During the time relevant to this hearing, Securus used a database of attorney phone numbers from Info USA to construct this list. Hr'g Tr. 71.2 If an inmate requested that Jail employees list a particular telephone number of an attorney as exempt from monitoring, the inmate was instructed to have his attorney contact Securus directly. Upon request of the attorney, Securus would add the number provided by the attorney to the database of attorney numbers which would not be recorded. Hr'g Tr. 45. The regulations require only that calls to pre-authorized attorney numbers not be monitored, but Robert Ahonen, a lieutenant in the Barnstable County Sheriff's Office assigned to the Jail, testified that any number in the Massachusetts Lawyers Diary and Manual ("Lawyers Diary") was a pre-authorized attorney number. Hr'g Tr. 64-65.
Inmates of the Jail were informed generally that their phone calls were subject to monitoring. Hr'g Ex. 5, 6. They were generally not given any information about their right to have unmonitored attorneyclient calls or the procedure for arranging for unmonitored calls to their attorneys. Hr'g Ex. 5, 6. The Jail does not have a written policy that addresses attorneyclient phone calls. Hr'g Tr. 57. Although the Barnstable County Sheriffs Department Mail and Communication Policy distinguishes between non-privileged and privileged mail, the policy does not discuss privileged telephone calls, indicate whether attorney calls would be treated as confidential and therefore not recorded, or give any instruction as to how a telephone call to an attorney could be made confidential. Hr'g Ex. 5; Hr'g Tr. 51-52. The Jail's Admission and Orientation policies similarly do not address whether attorney calls are treated as confidential or how to make them so. Hr'g Ex. 6; Hr'g Tr. 53-55. Nor does the inmate handbook address how to make telephone calls to attorneys confidential. Hr'g Tr. 56, 61. There is no evidence that Holyoke himself was ever informed whether or how attorney calls could be made confidential. Hr'g Tr. 62. Securus never publicized to either attorneys or inmates its policy for identifying attorney numbers, or that inmates or attorneys could request to have a number added to the database so that calls to that number would go unmonitored. Hr'g Tr. 78. Lieutenant Ahonen. testified that he did not know how an inmate could discover that he would have to make a request to have an attorney listed as confidential. Hr'g Tr. 38-39, 64.
In July 2005, Holyoke telephoned Novak at Novak's office. Exhibits 3 and 4 are photographs representative of phones in the Jail, but not necessarily of the phone Holyoke used to call Novak. Hr'g Tr. 44. These exhibits depict a sign on the phones stating: "Calls are subject to monitoring and recording." Hr'g Ex. 4. At the time of the monitoring, Novak's office phone number was listed with BBO and in the Lawyers' Diary. However, his phone number was apparently not part of Securus's list of attorney numbers, because the calls from Holyoke to Novak were recorded.
Over several days in July, 2005, Holyoke called Novak's office a total of six times. Only in the last attempt did Holyoke actually speak with Novak; the other five times he spoke briefly with a person who apparently was Novak's secretary, Novak being unavailable. At the beginning of each call an automated message was played; it advised that the call in progress was a collect call from an inmate at the Jail, and that: "This call is subject to monitoring and recording." Both Holyoke and the secretary could hear this message. At the beginning of the first call, the secretary answered the phone "Attorney Novak." When Holyoke said he was calling for "Larry Novak," the secretary replied "The attorney isn't here right now, he's out to lunch." During the third and fifth calls, the secretary told Holyoke that Novak was unavailable because he was meeting with a client. Hr'g Ex. 2.
In the sixth call, Novak's secretary again answered. The warning that the call was subject to monitoring played while the secretary was speaking to Holyoke. The secretary then transferred the call to Novak. The warning was not replayed, and Novak did not hear it when it was originally played. After Novak and Holyoke exchanged greetings, Novak's first question to Holyoke was "Do you know which cases you're talking about you need vacated?" Thereafter, Holyoke and Novak continued for several minutes to discuss the legal work that Holyoke wanted Novak to perform. Hr'g Ex. 2.
In July, 2005, Shawn Murray, a Massachusetts State Police Officer working on a DEA Task Force, had been part of the team investigating Holyoke. Hr'g Tr. 13. As part of Murray's ongoing investigation, he sent administrative subpoenas—unsupervised by a judge or grand jury—to Barnstable requesting the Jail recordings of all phone calls made by Holyoke from January 1, 2005 until July 7, 2005. Hr'g Ex. 1; Hr'g Tr. 15-16. Among such calls, were the calls Holyoke made to Novak. Neither Murray nor anyone else informed Holyoke in advance that the federal authorities would be listening to the calls he made from the Jail as part of their continuing investigation. Hr'g Tr. 25.
Murray knew from the first call that Holyoke made to Novak's office that Holyoke was calling an attorney's office. Hr'g Tr. 29. He could also tell from the sixth call that Holyoke was attempting to engage Novak's services as an attorney. Hr'g Tr. 21. Murray knew that all six calls were to the same number. Hr'g Tr. 31-32. However he never checked the number to see if it was a listed attorney number. Hr'g Tr. 29-31.
When Murray listened to the sixth call, he concluded from what he heard that Holyoke was attempting to commit a crime by getting Novak to file false affidavits to vacate his prior convictions. Hr'g Tr. 21. He therefore contacted Assistant United States Attorney Nancy Rue, who then turned the investigation over to the public corruption unit of the U.S. Attorney's Office. That office brought the FBI and the Internal Revenue Service into the investigation. Hr'g Tr. 21-22. At this point, the government approached Holyoke to cooperate against Novak. Hr'g Tr. 22. While it is unclear whether the government used a carrot or a stick to secure Holyoke's cooperation, it is clear that he was approached as a result of Murray's having listened to the recorded conversations between Holyoke and Novak. Murray testified that he was not investigating Novak before he listened to the calls, and that, in fact, he had never heard of Novak before that time. Hr'g Tr. 20.
In any event, with Holyoke's consent, given after Holyoke began to cooperate in the investigation of Novak, conversations Holyoke had with Novak in person and by telephone were recorded. The government alleges that, during those conversations, Novak agreed to launder what he believed what the proceeds of drug trafficking and to accept $60,000 in drug proceeds for his efforts.
Asserting his rights under the Fourth Amendment, Novak moves to suppress all evidence pertaining to his initial conversation with Holyoke, described above, and all recordings and other evidence obtained following and resulting from that conversation.
The Fourth Amendment generally prohibits unreasonable searches or seizures. U.S. Const. amend. IV. "The protection afforded by the Fourth Amendment against searches and seizures 'governs not only the seizure of...
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