US v. Montgomery

Citation675 F. Supp. 164
Decision Date18 December 1987
Docket NumberNo. SSS87 Cr. 594 (MEL).,SSS87 Cr. 594 (MEL).
PartiesUNITED STATES of America, v. Carleton MONTGOMERY, Arthur Prioleau, Quintin Prioleau, and Richard Willoughby, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

Rudolph W. Guiliano, U.S. Atty., New York City, for plaintiff; Joan McPhee, Asst. U.S. Atty., of counsel.

David E. Liebman, New York City, for defendant Carleton Montgomery.

Balsam Felber & Connuch, New York City, for defendant Arthur Prioleau; Daniel M. Felber, of counsel.

Wiseman & Kinigstein, New York City, for defendant Quintin Prioleau; Michael Wiseman, of counsel.

Louis R. Aidala, New York City, for defendant Richard Willoughby.

LASKER, District Judge.

Defendants Richard Willoughby, Quintin Prioleau, Carleton Montgomery, and Arthur Prioleau are charged under 18 U.S.C. § 371 with conspiracy to obstruct justice in violation of 18 U.S.C. §§ 1503 and 1512. In addition, Quintin Prioleau is charged with violation of 18 U.S.C. §§ 1503 and 1512(b)(2)(D); Arthur Prioleau also faces counts arising under 18 U.S.C. §§ 1512(b)(2)(A) and 1512(b)(3).

In early 1987, Montgomery, Arthur Prioleau and Quintin Prioleau were arrested and charged with a 1982 armed robbery of the City College branch of Chemical Bank; all three were held at the Metropolitan Correctional Center ("MCC"). On June 11, Sabrina Johnson visited Arthur Prioleau, a former boyfriend, at the MCC. During the conversation, which Johnson taped at the government's request, Arthur Prioleau allegedly intimidated her and threatened her with physical harm were she to testify as a government witness. On June 22, 1987, two weeks before the scheduled commencement of the robbery trial, Quintin Prioleau, with Montgomery standing beside him, called Willoughby from a pay telephone in the MCC. The call, which was intercepted and taped, is alleged to reveal the plans of the defendants to prevent a witness by intimidation or physical force from testifying at an armed robbery trial. Soon after these events these four defendants were indicted for federal conspiracy and obstruction of justice.

Defendants,1 in separate motions, have moved to dismiss the indictment, or alternatively to suppress the tapes, on the ground that the taping of the conversations violated their statutory and constitutional rights; to dismiss the indictment, or in the alternative to dismiss the counts brought under § 1503, arguing that § 1503 has been superceded by § 1512; for severance; and for in limine rulings redacting portions of the taped conversations.2 All of the motions are denied.

I.

Defendants Richard Willoughby, Quintin Prioleau and Carleton Montgomery move under Fed.R.Crim.Pro. 12(b)(3) to suppress the tape-recording of a telephone conversation between Prioleau and Willoughby and a subsequent conversation in person between Prioleau and Montgomery. Defendants argue that the taping of this telephone conversation violated the wiretapping provisions of Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-20 ("Title III") as well as their rights under the Fourth and Fifth Amendments of the United States Constitution. The motion is denied.

A. Facts

Early in 1987, Quintin Prioleau, Arthur Prioleau and Carleton Montgomery were arrested on several counts of armed bank robbery and conspiracy to commit armed bank robbery and were detained at the MCC pending trial. On June 22, 1987, two weeks before the commencement of trial on the armed bank robbery charges, Prioleau made a call from the MCC to Richard Willoughby, who was not charged with participation in the bank robbery or in detention. During this telephone conversation, Prioleau and Willoughby made statements which, the government argues, provide evidence of a conspiracy to intimidate and injure or murder one Patricia White who was scheduled to testify at the upcoming armed bank robbery trial. Directly after this telephone conversation was concluded, but apparently before hanging up the telephone receiver, Quintin Prioleau had a conversation with Carleton Montgomery, who had been standing beside Prioleau during the telephone conversation with Willoughby. Prioleau explained to Montgomery the substance of his conversation with Willoughby.

Both the Prioleau-Willoughby telephone conversation and the subsequent face-to-face conversation between Prioleau and Montgomery were monitored and tape-recorded by an MCC correction officer. Under a taping system initiated in mid-1986, the MCC tapes all telephone calls placed from the pay phones made available to MCC inmates.3 The taping system runs automatically, even when the telephones are not in use. All calls from the phones can also be monitored by prison officials, and two correction officers monitor telephone lines on a random basis as part of their regular duties. These corrections officers are responsible for reporting any suspicious conversations which they monitor.

On this occasion, the correction officer who monitored the Prioleau-Willoughby call contacted the floor officer stationed in the vicinity of the telephone from which the call had been placed and asked the identity of the inmate using the phone. The floor officer reported that the caller was Quintin Prioleau and that Carleton Montgomery was standing beside Prioleau during the course of the call. The monitoring officer then contacted the Special Assistant to the Assistant Warden and informed him of the substance of the call and the identity of the caller.

In addition to the public notice of this telephone monitoring published in the Code of Federal Regulations, 28 C.F.R. § 540.101 (1987), MCC inmates receive notice that the telephones are taped and monitored in three ways. First, upon arriving at MCC, each inmate must attend an admission and orientation lecture at which the monitoring and taping system is discussed. In that lecture, inmates are told that all of their calls are taped except properly placed calls to an attorney, and that officials randomly conduct live monitoring of their calls. Second, upon admission to the MCC, inmates are also given a form which explains the monitoring and taping system. The form states:

The Bureau of Prisons reserves the authority to monitor (this includes recording) conversations on any telephone located within its institutions, said monitoring to be done to preserve the security and orderly management of the institution and to protect the public. An inmate's use of institutional telephones constitutes consent to the monitoring. A properly placed phone call to an attorney is not monitored.

See McPhee Affidavit at Exhibit A (copy of form provided to and signed by Quintin Prioleau on March 5, 1987). After reviewing the form, inmates are requested to sign a statement stating in part: "I understand that telephone calls I make from institution telephones may be monitored and recorded." Quintin Prioleau signed this statement on March 5, 1987. Id. Finally, posted above each telephone is a notice stating in English and Spanish that: "The Bureau of Prisons reserves the authority to monitor conversations on this telephone. Your use of institutional telephones constitutes consent to this monitoring...." McPhee Affidavit at ¶ 18.

B. Title III and Fourth Amendment Claims

Defendants argue that the taping of the Prioleau-Willoughby conversation violated the provisions of Title III governing wiretapping and violated their rights under the Fourth Amendment. On the Title III issue, the government argues first, that Title III does not apply to communications within a prison, and second, that if it does apply, the MCC taping and monitoring system falls within two exceptions to the Title III warrant requirement: the exception applicable to wiretapping by a "law enforcement officer in the ordinary course of his duties," 18 U.S.C. § 2510(5)(a)(ii), and the exception applicable where "one of the parties to the communication has given prior consent to such interception," 18 U.S.C. § 2511(2)(c). The government also contends that under the facts of this case Prioleau, Willoughby and Montgomery had no justifiable expectation of privacy as to the telephone call which could trigger a violation of the Fourth Amendment.

These issues are largely controlled by United States v. Amen, 831 F.2d 373 (2d Cir.1987), aff'g United States v. Vasta, 649 F.Supp. 974 (S.D.N.Y.1986), a recent decision of the court of appeals for this circuit which was issued after this motion was briefed. The appellants in Amen, making the same Title III and Fourth Amendment arguments advanced by defendants here, argued that the district court erred in failing to suppress evidence of tape-recorded telephone conversations which they had conducted while inmates at the federal penitentiary in Lewisburg, Pennsylvania ("Lewisburg"). Lewisburg employs a system of regular taping and random monitoring of inmate telephone calls4 which from the facts of Amen and Vasta appears to be substantially similar to that used at MCC. Lewisburg also notifies inmates of the taping and monitoring procedures in the same ways as does MCC.

The Amen court rejected appellants' arguments both as to Title III and the Fourth Amendment. Although the court found that "Title III clearly applies to prison monitoring," Amen, 831 F.2d at 378, it decided that "the monitoring in this case fell within the consent exception to Title III," id. Because the appellants had notice of the telephone monitoring and taping system through the regulations published in the Code of Federal Regulations, the Lewisburg admission and orientation lecture, and notices placed on all Lewisburg inmate telephones, the Amen court concluded that "the two defendants had notice of the interception system and ... their use of the telephones therefore constituted implied consent to the monitoring." Id. at 379. Considering the appellants' Fourth Amendment claims in the light of recent Supreme Court decisions on the issue, the court of appeals concluded that:

As
...

To continue reading

Request your trial
7 cases
  • U.S. v. Sababu
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 21 Diciembre 1989
    ... ... Garcia was a frequent visitor to Leavenworth and was well aware of the strict security measures in place. She was put on notice through the Code of Federal Regulations that prison officials were authorized to monitor inmates' telephone calls. See United States v. Montgomery, 675 F.Supp. 164, 169 (S.D.N.Y.1987). Moreover, that Garcia frequently spoke in coded language demonstrated her awareness that there was no privacy to the conversations. We believe that it was unreasonable for her to expect that telephone calls she placed to an inmate in a high-security federal ... ...
  • U.S. v. Willoughby
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 6 Octubre 1988
    ... 860 F.2d 15 ... 26 Fed. R. Evid. Serv. 1129 ... UNITED STATES of America, Appellee, ... Richard WILLOUGHBY, Quintin Prioleau, Arthur Prioleau, and ... Carleton Montgomery, Defendants-Appellants ... Nos. 1295, 1285-1287, Dockets 88-1067 to 88-1070 ... United States Court of Appeals, ... Second Circuit ... Argued June 21, 1988 ... Decided Oct. 6, 1988 ...         Joan McPhee, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty ... ...
  • US v. Mauser, S 89 Cr. 293 (GLG).
    • United States
    • U.S. District Court — Southern District of New York
    • 25 Octubre 1989
    ... ... The interview conducted in the defendant's office was not a custodial interrogation. Hence, the United States Constitution does not require the giving of Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); accord United States v. Montgomery, 675 F.Supp. 164, 171 (S.D. N.Y.1987) ( "Miranda only applies when the suspect is subject to custodial interrogation."), aff'd sub nom. United States v. Willoughby, 860 F.2d 15 (2d Cir.1988), cert. denied sub nom., ___ U.S. ___, 109 S.Ct. 846, 102 L.Ed.2d 978 (1989). The defendant argues, ... ...
  • Griggs-Ryan v. Connelly
    • United States
    • U.S. District Court — District of Maine
    • 13 Diciembre 1989
    ...the doctrine of implied consent should apply. United States v. Amen, 831 F.2d 373, 378-79 (2d Cir.1987); United States v. Montgomery, 675 F.Supp. 164, 166-67 (S.D.N.Y.1987), aff'd, 860 F.2d 15 (2d Cir.1988); Simmons v. Southwestern Bell Telephone Co., 452 F.Supp. 392, 396 (W.D.Okla.1978), a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT