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October 3, 2005.


The opinion of the court was delivered by: WILLIAM SHUBB, District Judge

Defendant Amr Mohsen ("Defendant") moves to suppress any and all evidence obtained during execution of a search warrant for defendant's jail cell on June 15, 2004. He bases this motion on his allegations that the search procedure did not adequately prevent the search and/or seizure of documents falling within the attorney-client privilege. He also moves to exclude the contents of his handwritten notes, based on the marital communications privilege, because one of the pages on which the notes are found has defendant's wife's name at the top. I. Background

The events of the underlying patent litigation that resulted in perjury and obstruction of justice counts against defendant are well known to the government and defendant. Defendant was indicted in March 2003. The 19-count indictment charged him with one count of conspiracy to obstruct justice and to commit perjury in violation of 18 U.S.C. § 371 (Count 1), four counts of perjury in violation of 18 U.S.C. § 1621 (1) (Counts 2-5), one count of subornation of perjury in violation of 18 U.S.C. § 1622 (Count 10), eight counts of mail fraud in violation of 18 U.S.C. § 1341 (Counts 11-18), and one count of obstruction of justice in violation of 18 U.S.C. § 1503 (Count 19). (March 25, 2003 Indictment). The criminal trial was originally scheduled for March 31, 2004 before Judge Alsup. (Pl.'s Mem. in Opp'n to Def.'s Mot. to Disqualify at 6). On March 27, 2004, defendant was arrested based upon information that he was planning to flee prior to his trial and, on March 29, 2004, Judge Alsup ordered defendant to be detained in the Santa Rita jail pending trial. (Id.).

  While detained at the Santa Rita jail, defendant allegedly solicited a fellow inmate's aide in a plot to murder Judge Alsup. (Def.'s Mem. in Supp. of Mot. to Suppress Ex. B (Application & Aff. for a Search Warrant) ¶ 18). The inmate disclosed the murder plot to the F.B.I., (id. ex. B ¶ 19) 19), agents of which, in turn, obtained a search warrant for Amr Mohsen's jail cell. The search was conducted by F.B.I. Special Agents Joseph Montoya and Charles John Gunther and took place on or about June 15, 2004. (Montoya Decl. ¶¶ 1, 2). Montoya and Gunther discovered a number of items for which seizure was authorized by the warrant. The agents collected and seized all of these materials. (Id. ¶ 3).*fn1 Included in the material seized were some handwritten notes, attached as Exhibit 3 to the government's opposition to the present motion. The copies of the notes provided to the court are faulty because the tops of the notes failed to copy. (See Pl.'s Mem. in Opp'n to Def.'s Mot. to Suppress Ex. 3 (handwritten notes)). The government concedes that one of the pages had defendant's wife's name, Mervat, at the top. Defendant argues that these notes were intended to be conveyed to his wife.

  Special Agent Gunther delivered all of the seized materials to Assistant United States Attorney Ben Burch. (Montoya Decl. ¶ 3; Gunther Decl. ¶ 3). The application and affidavit for this search provided that [i]n order to protect Mohsen's attorney-client privilege, this search will be executed by FBI Special Agents and an experienced Assistant United States Attorney (`AUSA'), Charles Ben Burch, who is one of the Professional Responsibility Officer [sic] for the United States Attorney's Office, all of whom will not be further involved in the prosecution of Mohsen's criminal case.

 (Def.'s Mem. in Supp. of Mot. to Suppress Ex. B (Application & Aff. for Search Warrant) ¶ 25). The government asserts that this procedure was followed; neither Special Agents Montoya and Gunther nor AUSA Burch are assigned to prosecute, or to assist in prosecuting, defendant. (Pl.'s Mem. in Opp'n to Mot. to Suppress at 3-4; Montoya Decl. ¶¶ 4-6; Gunther Decl. ¶¶ 4-6). Since the time of the search, "the government (1) has provided copies of jail cell materials in the prosecution team's possession to the defense and (2) has made all seized materials available for review by the defense." (Pl.'s Mem. in Opp'n to Mot. to Suppress at 4). Former AUSA (now Judge) Burch declares that the procedure was followed; he screened the written documents seized for those that, in his estimation, were privileged. (Burch Decl. ¶ 3). Of the 21 pages of handwritten notes, three of those pages were withheld by Burch from the prosecuting attorneys. (Id. at ¶ 4).*fn2 Defendant does not offer evidence to show that the procedure outlined in the application for the warrant was not followed. Instead, defendant argues that "[t]his procedure . . . was inadequate to safeguard confidential materials in Dr. Mohsen's jail cell that are protected by the attorney-client privilege and work product doctrine." (Def.'s Mem. in Supp. of Mot. to Suppress at 6).

  On July 27, 2004, the grand jury issued a superseding indictment charging Amr Mohsen with contempt of court in violation of 18 U.S.C. § 401(3) (Count 20), attempted witness tampering in violation of 18 U.S.C. § 1512(b)(1) (Count 21), solicitation to commit arson in violation of 18 U.S.C. § 373 (Count 22), and solicitation to commit the murder of a federal judge in violation of 28 U.S.C. § 373 (Count 23). II. Discussion

  The court considers defendant's motion to suppress under the Fourth, Fifth, and Sixth Amendments.

  A. The Fourth Amendment

  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const. amend. IV. "The applicability of the Fourth Amendment turns on whether the person invoking its protection can claim a justifiable, a reasonable, or a legitimate expectation of privacy that has been invaded by government action." Hudson v. Palmer, 468 U.S. 517, 525 (1984) (quotation marks and citation omitted). Society must be prepared to recognize this expectation of privacy as reasonable for the Fourth Amendment to apply. Id.

  The Supreme Court in Hudson found that society is not prepared to recognize an inmate's expectation of privacy in his jail cell. Id. at 525-26 ("[W]e hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell."). Defendant distinguishes Hudson by noting that the prisoner in that case had already been convicted at the time of the search, whereas defendant has not been convicted. See id. at 519. However, the concurrence by Justice O'Connor and subsequent case law confirms that this distinction makes no difference in the analysis. See id. at 538 (O'Connor, J., concurring) ("The fact of arrest and incarceration abates all legitimate Fourth Amendment privacy and possessory interest in personal effects.") (citing Lanza v. New York, 370 U.S. 139, 143 (1962) and United States v. Robinson, 414 U.S. 218, 237-38 (1973) (Powell, J., concurring)); United States v. Van Poyck, 77 F.3d 285, 287, 290-91 (9th Cir. 1996) (reasoning that, because a pretrial detainee has no constitutionally protected reasonable expectation of privacy in phone calls made from jail, "the Fourth Amendment is therefore not triggered by the routine taping of such calls"). Therefore, the fruits of the June 15, 2004 search will not be suppressed on Fourth Amendment grounds.

  B. The Fifth and Sixth Amendments

  "[G]overnment interference with a defendant's relationship with his attorney may render counsel's assistance so ineffective as to violate his Sixth Amendment right to counsel and his Fifth Amendment right to due process of law." United States v. Irwin, 612 F.2d 1182, 1185 (9th Cir. 1980). "The Sixth Amendment's assistance-of-counsel guarantee can be meaningfully implemented only if a criminal defendant knows that his communications with his attorney are private and that his lawful preparations for trial are secure against intrusion by the government." Weatherford v. Bursey, 429 U.S. 545, 554 n. 4 (1977).

  In Weatherford, plaintiff Bursey filed suit under 42 U.S.C. § 1983 against undercover law enforcement agent Jack Weatherford and Weatherford's superior. Id. at 547. Plaintiff Bursey and Agent Weatherford vandalized together an office of the selective service. Id. Both were arrested. Id. Bursey and Bursey's attorney, not knowing that Weatherford was an undercover agent, invited Weatherford to two meetings. Id. at 547-48. "At no time did Weatherford discuss with or pass on to his superiors or to the prosecuting attorney or any of the attorney's staff . . . `any details or information regarding the plaintiff's trial plans, strategy, or anything having to do with the criminal action pending against plaintiff.'" Id. at 548 (quoting the findings of the district court). Although Weatherford testified against Bursey at Bursey's criminal trial, he did not testify as to the content of his meetings with Bursey and Bursey's attorney that took place after Bursey was charged. Id. at 549. Nevertheless, plaintiff Bursey argued for a per se rule holding that any intrusion by the government into the attorney-client relationship was unconstitutional. Id. at 555-56. The Court rejected Bursey's suggested approach, refusing to "assume not only that an informant communicates what he learns from an encounter with the defendant and his counsel but also that what he communicates has the potential for detriment to the defendant or benefit to the prosecutor's case." Id. at 557. "There being no tainted evidence in this case, no communication of defense strategy to the prosecution, and no purposeful intrusion by Weatherford, there was no violation of the Sixth Amendment . . ." Id. at 558.

  In Irwin, the defendant was arrested because of his attempt to sell cocaine to undercover Drug Enforcement Administration agent Darrell Wisdom. 612 F.2d at 1184. After Irwin's arrest, "Wisdom and Irwin engaged in several telephone conversations" with each other without the consent of Irwin's counsel. Id. During those conversations, Irwin made incriminating statements. Id. at 1187. Irwin argued that his Fifth and Sixth Amendment rights had been violated. Id. at 1185. The Ninth Circuit did not accept the defendant's argument. "[M]ere government intrusion into the attorney-client relationship, although not condoned by the court, is not of itself violative of the Sixth Amendment right to counsel." Id. at 1186-87. Applying Weatherford, the ...

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