While this defendant was the target of an eavesdropping order, he had no standing to challenge a recording at the jail between a lawyer and another person involving him where bribery of a witness was discussed. United States v. Ramos-Gonzalez, 2010 U.S. Dist. LEXIS 113971 (D. P.R. October 25, 2010):
During the period between November 8, 2007 and November 19, 2007 a meeting between cooperating defendant Canuelas and Bronco, a licensed attorney in the Puerto Rico state court, was arranged by Laboy with the assistance of Zabala. On December 1, 2007, Bronco and Arroyo, another lawyer, met with Canuelas without the previous authorization of his attorney. It is alleged that during this meeting, which was not recorded, Bronco asked Canuelas to sign a piece of paper indicating that Bronco had authorization from the cooperating defendant to meet with him and that Canuelas’ attorney was aware of the visit.
The Federal Bureau of Investigations (FBI) sent the Warden of the MDC a letter in which it requested and through which it obtained authorization to conduct covert recordings of the meetings between Canuelas and Bronco and Arroyo within the MDC. (Docket No. 934). As a result subsequent meetings between Canuelas and attorneys Bronco and Arroyo were audio and video recorded. The recorded meetings spanned from December 10, 2007 until January 2008. Defendant Bronco met with Canuelas on December 7, 2007. During this meeting Bronco hand-wrote a sworn statement that contained false statements concerning Canuelas’ knowledge of the involvements of several defendants in Criminal Case No. 07-318 (PG). Defendant Bronco then urged Canuelas to sign and initial the statement. The cooperating defendant signed the statement but reminded Bronco that the statements contained therein were false. On December 10, 2007 Arroyo met with Canuelas and urged the cooperating defendant to sign a typed version of the hand-written statement previously drafted by Bronco on December 7, 2007. Canuelas refused to sign the typed version of the statement after telling Arroyo that the statements contained therein were false. On December 11, 2007, Bronco and Arroyo met with Canuelas and sought to have him sign the typed version of the sworn statement. During this meeting Bronco was recorded on audio and video assuring the cooperating defendant that he would receive payment for his statement in the amount of twelve thousand dollars (12,000). Bronco again visited the cooperating defendant on January 2, 2008 with a slightly different false sworn statement in Bronco’s handwriting and had Canuelas sign it. On February 5, 2008 a Superseding Indictment, which included charges of conspiracy to tamper with a government witness, aiding and abetting to tamper with a government witness, and aiding and abetting to bribe a government witness, was returned.
They were also not protected by attorney-work product:
Defendant also claims that he has adequate standing to challenge the admission of the recordings under the work product doctrine. Although Defendant does not explicitly state his argument, the Court understands that he claims that he has standing to suppress the recordings because they are protected by the work product doctrine and are subject to an expectation of privacy under the Fourth Amendment. As discussed in the previous section, the Court understands that the Defendant is not an aggrieved person with standing to challenge the recordings. Moreover, the Court finds that Defendant lacks standing to assert any Fourth Amendment claims under the work product doctrine.
The work product privilege exempts documents prepared by an attorney in contemplation of litigation. …
The work product doctrine is also vulnerable to the crime or fraud exception in situations where the work product is part of a criminal scheme. In re John Doe Corp., 675 F.2d 482, 491-492 (2d Cir. 1982); In re Special September 1978 Grand Jury (II), 640 F.2d 49, 62 (7th Cir. 1980). See also In re Doe, 662 F.2d 1073, 1078-1079 (4th Cir. 1981) (clarifying that the work product doctrine should not lend itself to use by lawyers seeking to insulate themselves from criminal prosecution).
Other sister courts have concluded that it would be perverse “to allow a lawyer to claim an evidentiary privilege to prevent disclosure of work product generated by those very activities the privilege was meant to prevent.” Moody v. Internal Revenue Service, 654 F.2d 795, 800, 210 U.S. App. D.C. 80 (D.C. Cir. 1981). In other words, caselaw disfavors the use of the work product doctrine in order to cover up activities that are destructive of the legal system. Id. The Second Circuit has further stated examples of actions that are unlikely to be protected by the work product doctrine, “Similarly, where a party suborns perjury by a witness to bolster a claim or defense, [c]ommunications or work product relating to that witness may also be discoverable.” In re Richard Roe, Inc., 168 F.3d 69, 72 (2d Cir. 1999).
. . .
The Court further concludes that even if Defendant met the work product standing requirements, the recordings in question would not be protected. The meetings between Bronco, Arroyo, and Canuelas were directed at convincing Canuelas to submit false sworn testimony rather than to interview a potential witness. (Docket No. 2437). The mere fact that Bronco was a licensed attorney and working for Defendant when he met with Canuelas does not mean that the conversations are automatically protected under the work product doctrine. Moreover, Bronco was not licensed to practice in the District Court of Puerto Rico and as a result his meetings with Canuelas could not have possibly been prepared in anticipation of litigation concerning the federal charges against Ramos.
Thus, the Court concludes that Bronco did not meet with Canuelas in his capacity as a lawyer and as a result the recorded conversations are not protected by the work product doctrine, nor do they have an expectation of privacy under the Fourth Amendment.
Finally, attorney-client privilege was rejected:
In his motion to suppress, Ramos attempts to convince the Court that the recorded conversations were covered under the attorney-client privilege. However, Defendant does not provide reasoning for this conclusion, nor does he cite relevant caselaw that would aid the Court in reaching this conclusion. The Court in its analysis and application of the law to the facts concludes that the totality of the circumstances suggest that there was no attorney client relationship. At the time that Canuelas met with Bronco and Arroyo, he was already represented by the Office of the Public Defender and Canuelas was not seeking legal advice. Moreover, the recorded conversations were not legal in nature and the meetings were concerned with illegal efforts to encourage Canuelas to submit a false statement. (Docket No.2437). Thus, when we examine the totality of the interactions between Canuelas, Bronco, and Arroyo we conclude that there was no attorney-client relationship and that the federal protections offered to attorney-client conversations do not extend to the communications that the Defendant seeks to suppress. The Court does not find it necessary to enter into an analysis regarding the crime-fraud exception because it finds that the attorney-client privilege is inapplicable in this case.
Remember Rule 5 in § 1:1 of my Professional Responsibility in Criminal Defense Practice (3d ed. 2005):
Say nothing or do nothing that you would be afraid to read about in the newspaper or in a transcript or hear in a courtroom someday.
