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.
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).
The Burch declaration is sufficient for the court to determine that Burch reviewed all documents taken from Mohsen's cell for possible privilege issues before turning those documents over to the prosecution team. Defendant, in his response to Burch's declaration, "renews his request that the Court order the government to provide declarations from the case agent, assigned prosecutors, and anyone else with substantive involvement on the case sufficient to show what materials were shown to the prosecution team." (Def.'s Response to Burch Decl. at 3). However, since the clear implication of Burch's declaration is that not even a colorable argument could be made that any documents or other items seized from defendant's cell were privileged except for the 21 handwritten pages, and since those 21 pages were carefully reviewed by Burch before he released 18 of them to the prosecution team, and since defendant has presented no evidence that any other privileged documents were turned over to the prosecution team, any order by the court requiring additional declarations would be redundant.
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 ...