United States v. Carter

Decision Date13 August 2019
Docket NumberCase No. 16-20032-02-JAR
Parties UNITED STATES of America, Plaintiff, v. Karl CARTER, Defendant.
CourtU.S. District Court — District of Kansas

Annette B. Gurney, Debra L. Barnett, Office of United States Attorney, Wichita, KS, Donald Christopher Oakley, Office of United States Attorney, Kansas City, KS, Duston J. Slinkard, James A. Brown, Office of United States Attorney, Topeka, KS, Steve Clymer, Department of Justice, Syracuse, NY, for Plaintiff.

David J. Guastello, The Guastello Law Firm, LLC, Kansas City, MO, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE

I. Introduction ...798
II. Procedural Background and Scope of this Decision ...801
A. Procedural Background: This Case in Three Parts...801
B. The Scope of this Decision Under the Tenth Circuit's Mandamus Ruling...807
III. Findings of Fact: Failure to Cooperate with the Special Master's Investigation ...809
A. Orders to Preserve and Cooperate...810
C. Failure to Cooperate with Production of Witnesses and Documents...827
1. Failure to Make Key USAO Personnel Available to the Special Master...827
2. Failure to Produce Documents Requested by the Special Master...828
IV. Findings of Fact: Possession and Access to Video and Audio Recordings of Attorney-Client Communications at CCA ...832
A. Video Recordings...832
1. CCA Recording Practices...832
2. Grand Jury Subpoena in Black ...834
3. USAO and Agents' Knowledge and Intent...835
4. USAO's Use of Videotaped Attorney-Client Meeting...837
B. Audio Recordings...842
1. CCA Recording Practices...842
2. USAO Methods of Obtaining Recordings of Calls...847
3. Grand Jury Subpoena in Black ...848
4. Individual Cases that Came to Light in Black ...849
5. USAO's Knowledge that CCA Audio Recordings Included Recordings of Attorney-Client Phone Calls...854
6. DOJ Directives, Training, and USAO Management Advice...857
7. USAO Internal Deliberation and Guidance on Audio Calls...858
a. Failure to Investigate...858
b. Unilateral Determination on Waiver...859
c. Failure to Disclose to the Defense...861
d. No Reasonable Measures to Exclude or Filter Attorney-Client Calls...864
e. Internal Dysfunction...865
8. Retention of Attorney-Client Recordings...866
VII. Roadmap for § 2255 Litigation ...899
A. Posture of the § 2255 Litigation...901
B. Reassignment and Consolidation for Discovery...902
VIII. Conclusion ...902
I. Introduction

The Sixth Amendment guarantees an accused the right to assistance of counsel for his or her defense.1 This right is "indispensable to the fair administration of our adversarial system of criminal justice."2 It "safeguards the other rights deemed essential for the fair prosecution of a criminal proceeding."3 The Sixth Amendment right to effective assistance of counsel includes the ability to speak candidly and confidentially with counsel free from unreasonable Government interference.4 For the adversary system to function properly, any such advice must be shielded from exposure to the government. That bedrock principle is at issue in this case.

The Government initiated a drug-conspiracy investigation in the spring of 2016, targeting detainees and employees of Corrections Corporation of America ("CCA"), a large, private detention facility located in Leavenworth, Kansas.5 Although the case initially charged six defendants with various drug offenses, the Government suspected the conspiracy involved at least 95 inmates and 60 more individuals outside the facility.6 Facts uncovered after an early discovery conference in this case revealed discovery practices that implicated the Sixth Amendment right to counsel: the Government possessed soundless video recordings of attorney visitation rooms at CCA, and possessed and distributed audio recordings of telephone calls between several detainees and their counsel.

The Court immediately clawed back and impounded the recordings, and conducted several emergency hearings on these issues, prompted in part by the involvement of the Office of the Federal Public Defender's ("FPD"), which was allowed to intervene in this case on behalf of its many clients detained at CCA. At these early hearings, the Court endeavored to find out from the Government the scope of its discovery efforts that potentially intruded on confidential in-person and telephonic attorney-client meetings, but the Government evaded the Court's questions, and denied that its practices implicated the Sixth Amendment or the attorney-client privilege. The Court ultimately appointed Special Master David Cohen to investigate. The Government did not cooperate with his investigation, and its failure to cooperate ultimately resulted in a lengthy delay in this Court's ability to rule on these issues. Finally, despite the delay associated with the Government's failure to cooperate and its litigation efforts challenging the propriety of the Special Master's investigation, the Court conducted a full evidentiary hearing on all pending matters in this case in October and November 2018. The Court is now prepared to rule.

Under extant Tenth Circuit law, the purposeful intrusion by the government into the attorney-client relationship, absent a countervailing state interest, constitutes a per se violation of the Sixth Amendment with no need to demonstrate that the defendant has suffered prejudice as a result.7 The Supreme Court requires the remedy for a Sixth Amendment violation to be "tailored to the injury suffered" and not "unnecessarily infringe on the competing interests" of the fundamental right to assistance of counsel and respecting society's interest in the administration of criminal justice.8 In this case, the Court's attorney-client privilege and Sixth Amendment analysis is necessitated by the FPD's motions under Fed. R. Crim. P. 41(g) for return of property, wherein it asserts the Sixth Amendment rights of clients detained at CCA. As part of the Sixth Amendment analysis, the Court must necessarily evaluate the Government's lack of meaningful cooperation in the Special Master's investigation because the Government's credibility is directly at issue.

The purpose of the Special Master's investigation was to work with all the parties, and with Securus Technologies, Inc. ("Securus"), the company that provides the telephone-recording equipment to CCA, to determine the extent of the attorney-client communications that were obtained and/or accessed by the Government. Because the Government did not abide by this Court and the Special Master's preservation and cooperation directives, this opinion discusses evidence of these failures, and considers a remedy. Although the Court declines to impose spoliation sanctions at this time for the Government's probable destruction of evidence material to the Special Master's investigation, the record in this case may lay the groundwork for specific spoliation claims in individual cases brought under 28 U.S.C. § 2255. Moreover, the Court easily finds that the Government willfully violated myriad Court orders and Special Master directives, and the Court imposes monetary sanctions for these violations.

The Government is correct that the determination of a Sixth Amendment violation must be particularized to each defendant, and that relief must be tailored to the injury suffered. Nonetheless, the Court can narrow the inquiries required in each related § 2255 case because these petitioners all seek similar relief for similar types of intrusions. The Court's findings of fact shine daylight on the Government's practice of obtaining attorney-client communications, and its view that these communications are not protected, and thus, not subject to scrutiny. While the Sixth Amendment requires particularized findings to determine whether an improper intrusion into the confidential relationship with counsel occurred, and if so, the appropriate remedy, this record allows the Court to consider several legal issues that implicate the Sixth Amendment analysis and are common to all affected litigants. These issues include, inter alia : (1) the elements required to prove a per se violation of the Sixth Amendment under Tenth Circuit law; (2) whether soundless video recordings constitute protected attorney-client communications; (3) whether the "preamble" language that played at the beginning of Securus telephone calls constituted a waiver of the attorney-client privilege; and (4) whether the Government had a legitimate law enforcement purpose when it procured the recordings at issue in this case.

In the end, this case presents an...

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    ...Spradling's testimony of not listening to the calls was not credible.For legal support, Macomber leans heavily on United States v. Carter , 429 F. Supp. 3d 788 (D. Kan. 2019), vacated in part on other grounds No. 16-20032-02-JAR, 2020 WL 430739 (D. Kan. 2020) (unpublished opinion) (vacating......
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