The opinion of the court was delivered by: WILLIAM SHUBB, District Judge
MEMORANDUM AND ORDER RE: MOTION TO SUPPRESS EVIDENCE SEIZED IN
DEFENDANT'S JAIL CELL
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.
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
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.
"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 ...