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 …