United States v. Hatcher
323 F.3d 666 (2003)
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Rule of Law:
The attorney-client privilege is waived for conversations between an incarcerated individual and their attorney when both parties are aware that the conversation is being recorded by prison authorities, as there can be no reasonable expectation of privacy.
Facts:
- Clarence Burnett organized and led a group in a series of armed robberies of jewelry stores in the Kansas City area.
- Michael Hatcher participated in two of the robberies.
- Following the robberies, Burnett would deliver the stolen jewelry to J's Pawnshop, which was operated by Angelo and Joseph Porrello.
- The Porrellos not only purchased the stolen goods but also allegedly assisted in planning the robberies by providing guns, bulletproof vests, and floor plans.
- The jewelry stores targeted in the robberies customarily purchased their inventory from out-of-state suppliers and replaced the stolen items with merchandise from those same vendors.
- While incarcerated, several of the cooperating co-conspirators had conversations with their attorneys.
- These conversations were recorded by prison authorities, and the parties involved were aware that the recordings were being made.
Procedural Posture:
- The United States obtained a fifteen-count superseding indictment against Michael Hatcher, Angelo Porrello, and Joseph Porrello in the U.S. District Court (trial court).
- During trial proceedings, the defendants moved to compel the government to turn over tapes of conversations between cooperating co-conspirators and their attorneys.
- The District Court denied the motion, ruling the tapes were protected by attorney-client privilege.
- A jury convicted Hatcher on all counts and the Porrellos on most of the charges against them.
- The District Court sentenced the defendants to lengthy prison terms, imposed restitution, and entered a forfeiture order against Angelo Porrello after initially omitting it from the written judgment.
- Hatcher, Angelo Porrello, and Joseph Porrello (appellants) appealed their convictions and sentences to the U.S. Court of Appeals for the Eighth Circuit, challenging multiple rulings by the trial court.
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Issue:
Does the attorney-client privilege protect conversations between an incarcerated co-conspirator and their attorney when both parties are aware that the prison is recording the conversation?
Opinions:
Majority - Arnold, J.
No. The attorney-client privilege does not protect these conversations. The privilege requires a reasonable expectation of privacy, which is destroyed when both the client and the attorney are aware that their conversation is being recorded. The presence of the recording device is the functional equivalent of a third party being present, which negates the confidentiality necessary for the privilege to apply. Therefore, the district court erred in refusing to order the disclosure of the tapes. The case is remanded for the district court to determine whether this error was prejudicial to the defendants.
Concurring - Bye, J.
While concurring in the judgment to remand, this opinion disagrees with the majority's reasoning for disclosing the tapes. The record is insufficient to conclude that the privilege was automatically waived, as many prison policies exempt attorney calls from being recorded. The better ground for disclosure is that the government lacks standing to assert the attorney-client privilege on behalf of the cooperating co-conspirators. The privilege is personal to the client and cannot be invoked vicariously by a third party like the government. Thus, the government had no basis to withhold the tapes, and the district court should have ordered their disclosure on that ground.
Analysis:
This decision significantly clarifies the boundaries of attorney-client privilege within the correctional system, establishing that awareness of being recorded vitiates the privilege. It creates a critical exception that criminal defendants can use to obtain potentially impeaching evidence from conversations between cooperating witnesses and their counsel. The ruling underscores the tension between institutional security measures, such as recording inmate calls, and the fundamental right to confidential legal counsel. Consequently, defense attorneys must be extremely cautious when communicating with incarcerated clients if there is any possibility of monitoring.
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