Sunday, August 28th, 2011

Big Brother Listens To Big Sister

United States v. Rodriguez, No. 10-2724-cr (2d Cir. August 25, 2011) (Miner, McLaughlin, Pooler, CJJ)

While detained at the MDC, Rodriguez called his sister and asked her to tell their brother to contact Rodriguez’ attorney so that they could discuss whether he should “cop out” before being indicted. He indicated that the sooner he spoke with his attorney the better, and that they should tell the lawyer to tell the prosecutor that he wanted to plead guilty to the “five-to-40″ drug charge in the complaint.

The district court found that the call was not covered by the attorney-client privilege because Rodriguez knew that the BOP was recording it. It allowed the government to play the recording at Rodriguez’ trial, and the circuit affirmed.

First, the court had to decide on a standard of review. Whether the attorney-client privilege applies is reviewed de novo, while a finding that it has been waived is reviewed for abuse of discretion. Even though the district court seemed to look at the issue one of application, on appeal Rodriguez framed the issue as one of waiver. Accepting this, and noting that the question “involves the application of the attorney-client privilege as our case law has already developed it to the novel set of facts before us” and did not “require us to address the scope of the privilege itself in a novel way,” the court reviewed only for abuse of discretion.

Here, it found none. “[O]n the basis of the undisputed fact that Rodriguez was aware that his conversation was being recorded by BOP, Rodriguez’s disclosure to his sister of his desire to engage in plea discussions with his attorney was not made in confidence and thus constituted a waiver of the privilege.” Rodriguez did not claim that he had no way to reach out to his attorney directly, and under BOP regulations, that call would not have been monitored. Accordingly, he could “just as easily” have contacted his attorney directly to discuss his options in confidence.

Rodriguez’ second argument was based on Fed. R. Evid. 410, which privileges statements made in the course of plea discussions. The court made short work of this, noting that the rule only covers discussions with “an attorney for the prosecuting authority.” While the district court did not rule on this issue, the circuit found the inapplicability of Rule 410 to a conversation with one’s sister to be so clear that it did not remand for a ruling.


This is a disturbing precedent, not because it seems incorrect, but because of its policy implications.

On the government’s part, it seems fairly short sighted to use conversations like this against defendants at trial, since the practice might deter incarcerated defendants from taking whatever steps are in their limited power to resolve the case quickly. Any action of the government that might chill the speedy resolution of criminal cases through plea negotiations would seem to be inadvisable.

On the court’s part, the decision seems to take very little account of the difficulties of prison life. Inmates at the MDC have limited mobility, restricted funds, irregular access to telephones and a limited number of “minutes” per month. Even though Rodriguez did not claim that these obstacles restricted his ability to contact his counsel directly, they most likely – at least to some degree – informed his choice to seek to contact counsel through a family member.

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