M.D.Fla.: No REP in recorded jail calls to attorney; crime fraud exception applies

Defendant’s calls from the jail were all recorded, and two calls to his attorney were also listened to. The calls from the attorney are not suppressed because there was no reasonable expectation of privacy based on the recorded warning. As to the attorney-client privilege, the government has established that the crime-fraud exception applies to the conversation. United States v. Mitchell, 2012 U.S. Dist. LEXIS 188717 (M.D. Fla. August 21, 2012):

Here, Mitchell was no stranger to policy and procedure at the Duval County Jail, as he had been previously detained there in July 2010 (Tr. 1 at 30). Detective Bisplinghoff testified he had listened to “hundreds of calls of Mr. Mitchell from our jail” (Tr. 1 at 49). Newby had visited Mitchell at this facility numerous times and, thus, would be at least somewhat familiar with the policies and procedures governing inmate conduct and attorney-client interaction (see Tr. 1 at 220). The two calls placed to Newby contained the automated message stating the calls would be recorded (Docs. #134-1, #134-2). Both individuals having heard the automated message, and Newby’s action of affirmatively pressing a phone key to accept the calls, obviates any reasonable expectation of privacy between the attorney and client in these two calls because Newby and Mitchell each knew the calls were being recorded. Furthermore, Mitchell and Newby implicitly consented to the recording of the calls by continuing the conversations despite the warning.

Even if the Court were to find Mitchell had a reasonable expectation of privacy in the calls made to Newby, the United States argues and the undersigned agrees, the content of the calls suggests the crime-fraud exception to attorney-client privilege would apply. “[T]he attorney-client privilege does not protect communications made in furtherance of a crime or fraud.” In re Federal Grand Jury Proceedings, 89-10 (MIA), 938 F.2d 1578, 1581 (11th Cir. 1991) (internal quotations and citation omitted). For the crime-fraud exception to apply:

First, there must be a prima facie showing that the client was engaged in criminal or fraudulent conduct when he sought the advice of counsel, that he was planning such conduct when he sought the advice of counsel, or that he committed a crime or fraud subsequent to receiving the benefit of counsel’s advice. Second, there must be a showing that the attorney’s assistance was obtained in furtherance of the criminal or fraudulent activity or was closely related to it.

Id. The content of the December 31 phone call indicates Mitchell directed Newby to “wipe [his] phone as quickly” as she could using the MobileMe application and she complied with the request (Doc. #134-1 at 2-3). Under the circumstances of an ongoing investigation for fraud, the actions of Mitchell and Newby in this regard are reasonably construed as possible destruction of evidence. Mitchell directed Newby to place a third party call to another individual, which Newby did despite the warning that three-way calling was prohibited (Doc. #134-1 at 6-8). On the three-way call, Newby falsely told the other lady that Mitchell was out of the country and Newby relayed Mitchell’s request that the “package” from USAA be cancelled and she should have USAA “rewrite another one” (Doc. #134-1 at 6-8). It would appear Mitchell was trying to have Almashea write another check. As the evidence introduced during the first hearing demonstrates that a USAA teller check was recovered from the Maserati (Gov’t Ex. 10), and the lady on the three-way call, Almashea, was identified as a potential victim of Mitchell’s fraudulent scheme (Tr. 1 at 119-20), the actions discussed in this phone call are reasonably construed as actions taken in furtherance of the alleged fraud.

In summary, Mitchell made telephone calls to his attorney discussing, inter alia, matters in furtherance of the alleged fraud, when he knew the calls would be recorded by the corrections officers at the jail and he continued with the calls despite that knowledge. Mitchell waived all reasonable expectation of privacy in the phone calls to Newby, which were undertaken, at least in part, to further criminal activity in which Newby assisted. Thus, the calls should not be suppressed under the crime-fraud exception to the attorney-client privilege. Neither should the calls be suppressed since the recordings were made in the normal course of the officers’ duties at the jail and Mitchell had full knowledge his calls were not confidential and were, in fact, being recorded.

Tell the investigators that they cannot listen to calls to the attorney’s phone number because, if they do and pass it on to the prosecutor, the prosecutor can be sanctioned for even listening and likely disqualified from the case. I had that issue in May, and they abided.