The seizure of defendant’s emails between him and his lawyer didn’t violate the Sixth Amendment when adversary proceedings had not yet begun – defendant wasn’t indicted for more than a year later. United States v. Smith, 2020 U.S. Dist. LEXIS 59335 (E.D. Wash. Apr. 3, 2020):
The Court also, on three occasions, has considered and rejected Mr. Smith’s claim that his Sixth Amendment rights were violated when the United States intentionally violated his attorney-client privilege. See ECF Nos. 382, 446, and 537. As the Court last explained, the emails between Mr. Smith and his prior attorney, Ms. Lord, are not protected by the Sixth Amendment. ECF No. 537 at 20-21. The Sixth Amendment right to counsel attaches only upon the initiation of formal criminal charges, such as by indictment. Maine v. Moulton, 474 U.S. 159, 170, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985). Because right to counsel does not attach until the initiation of formal criminal charges, there can be no Sixth Amendment violation for intrusions into the attorney-client relationship prior to the indictment. United States v. Kennedy, 225 F.3d 1187, 1193-93 (10th Cir. 2000). When the search warrant was issued and the electronic data was seized, no formal adversary proceedings had been initiated against Mr. Smith. The emails that the United States seized were written and read prior to June 30, 2011. ECF No. 537 at 20. It was not until a year and a half later, on January 23, 2013, that a grand jury returned an indictment for Mr. Smith. ECF No. 1 at 21. Therefore, the right to counsel had not yet attached, and Mr. Smith’s Sixth Amendment rights were not violated by the seizure of those potentially privileged emails. ECF No. 537 at 20.
Therefore, the United States did not violate Mr. Smith’s constitutional rights by obtaining those emails. Id. It was not unreasonable for defense counsel to decide not to relitigate this issue, because there is no legal basis for Mr. Smith’s position. Because Mr. Smith fails to meet his burden under Strickland, the Court rejects this basis. See Strickland, 466 U.S. at 686.