The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: GOVERNMENT ACCESS TO DEFENDANT'S TELEPHONE CONVERSATIONS
Defendants have moved to dismiss the indictment, or for other relief, arising out of governmental interceptions of telephone calls from Defendant Kenneth Mitan ("Mitan"), an inmate at the Federal Detention Center ("FDC"), who is awaiting trial in this case (Doc. Nos. 331, 340). The facts are set forth below in summary fashion, based on numerous filings by the government, Kenneth, his Co-Defendant, Frank Mitan, Kenneth's father ("Frank"), and from several pretrial hearings that the Court has held on this issue.
The facts start with two decisions, one by the Court, which has resulted in Kenneth being detained pretrial, and the other by Kenneth to represent himself pro se, and having in forma pauperis status in this case.
In the colloquy which the Court held with Kenneth on his decision to represent himself pro se, Kenneth expressed unreserved insistence that he would represent himself in this case. He acknowledged during the colloquy his understanding of the consequences, which the Court accepted, particularly in view of the fact that the Defendant is a law school graduate, although he never practiced law. However, the Court appointed stand-by counsel, Ann Flannery, Esquire, a very experienced and highly competent individual practitioner.
Co-Defendant Frank is not detained, but also has in forma pauperis status.
As a result of Kenneth's Motion for a Protective Order concerning his communication rights while detained and representing himself pro se, the Court required the government to prepare a protocol, which was approved by Order dated May 11, 2009 (Doc. No. 185). The first paragraph of the protocol stated as follows:
When undertaking any communication related to his legal defense, Defendant Mitan will follow all procedures established by the Federal Detention Center to protect the confidentiality of such communications. These procedures will govern defendant Mitan's oral and written communications related to his legal defense, as well as his in-person conversations with stand-by counsel, and counsel for co-defendants during legal visits at the Federal Detention Center.
The second paragraph of the protocol established a procedure that when FDC staff needed to contact the government concerning Kenneth, it would do so in a way that would not disclose his legal work product. The third paragraph of the protocol related to a procedure to assist Kenneth in securing documents as part of his pretrial preparation.
As the pretrial proceedings progressed, Kenneth filed an ex parte motion for an extension of the Protective Order to communications with experts and witnesses, which the Court ordered filed without placing it under seal (Doc. No. 243). As reflected in the motion, the Court had approved Kenneth's (and Frank's) requests for appointment of experts and investigators. Kenneth was concerned that the prison's monitoring of his telephonic communications with these individuals from the FDC would be disclosed to the government. The Court denied the request for a protective order, stating as follows: "Individuals detained in prison send and receive numerous communications with their counsel and investigators every day, and prison regulations prohibit prison officials providing this information to law enforcement personnel. There is no need for a protective order in this particular case. . . . Mitan does not have any grounds to believe that the government has, in any way, interfered with his right to communicate with his investigators."
The Court's statement was not entirely correct. As set forth in various filings in this case, FDC regulations preclude monitoring of inmate phone calls to attorneys, on separate telephone lines that are limited to privileged communications. Other telephone communications are on separate telephone lines as to which inmates are specifically advised that FDC monitors these telephone calls, such as there is no expectation of privacy.*fn1
There does not appear to be any specific prison regulation prohibiting prison officials from providing information from monitored phone calls to law enforcement personnel.*fn2
As a result of a government filing, shortly after the July 28, 2009 Order was entered, the Court learned for the first time that the government had been regularly reviewing recordings of Kenneth's calls with his family, and scheduled a hearing on August 31, 2009. See Order dated August 28, 2009 (Doc. No. 288).
At this hearing, the government revealed that, because it had reason to believe that Kenneth had been involved in conduct constituting obstruction of justice, it had subpoenaed the FDC to produce telephone communications by Kenneth and had done so with the approval of the Department of Justice Professional Responsibility Office, and had initially arranged for "taint" agents and prosecutors (not involved in this case) only to review this material.
The government further represented that once the protocol had been approved as of May 11, 2009, it saw no further need for the taint procedure, reasoning that Kenneth had been advised of his need to abide by prison regulations, which clearly advised prisoners of the FDC's monitoring of non-privileged telephone calls. The government did not disclose, in connection with the protocol, that the ...