United States v. Lentz
2005 WL 3843640, 419 F. Supp. 2d 820, 2005 U.S. Dist. LEXIS 41084 (2005)
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Rule of Law:
An incarcerated individual waives the attorney-client privilege by communicating with counsel over a telephone system after receiving explicit notice that the conversation is being recorded. Furthermore, communications made for the purpose of furthering an ongoing or future crime are not protected by the attorney-client privilege or the Sixth Amendment right to counsel.
Facts:
- Jay E. Lentz was incarcerated at the Northern Neck Regional Jail (NNRJ) while awaiting a retrial for the kidnapping and murder of his ex-wife, Doris Lentz.
- While in jail, Lentz solicited the help of a fellow inmate, Christopher Jackmon, in a plot to hire a hitman to kill key prosecution witnesses and prosecutors in his case.
- Lentz placed three telephone calls from a jail phone to his attorney, Frank Salvato, to inquire about Jackmon's reliability regarding the murder-for-hire plot.
- Before each of the three calls connected, an automated message played for both Lentz and Salvato, stating that the call was subject to monitoring and recording.
- During the calls, Lentz discussed the plot, asked Salvato to refer to him by the alias "Bucks," and explained he was considering the plot because he was "at the end of his rope."
- The NNRJ recorded these conversations pursuant to its standard policy of recording all outgoing inmate telephone calls.
Procedural Posture:
- Jay E. Lentz was convicted by a jury in U.S. District Court of kidnapping resulting in death.
- The district court entered a judgment of acquittal based on insufficient evidence but also granted a motion for a new trial due to extraneous evidence entering the jury room.
- The government appealed the judgment of acquittal, and Lentz cross-appealed the grant of a new trial to the U.S. Court of Appeals for the Fourth Circuit.
- The Fourth Circuit reversed the district court's judgment of acquittal but affirmed the grant of a new trial.
- The case was remanded to the U.S. District Court for the Eastern District of Virginia for retrial before a different judge.
- While awaiting retrial, the government obtained recordings of Lentz's calls and filed an ex parte motion to disclose them to the prosecution team.
- The court denied the government's initial motion, ordered the recordings disclosed to defense counsel, and Lentz subsequently filed this motion to suppress the recordings.
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Issue:
Do recorded telephone conversations between an incarcerated defendant and his attorney, made on a jail phone system that provides explicit notice of monitoring and which concern the planning of a future crime, fall under the protection of the attorney-client privilege or the Sixth Amendment right to counsel?
Opinions:
Majority - Ellis, District Judge
No, the recorded telephone conversations are not protected by the attorney-client privilege or the Sixth Amendment. An inmate's decision to proceed with a telephone conversation despite explicit notification that the call is being recorded and monitored constitutes a waiver of the attorney-client privilege. The court reasoned that confidentiality is a core requirement of the privilege, and proceeding with a call after being warned of recording is the 'functional equivalent of the presence of a third party,' which destroys any reasonable expectation of privacy. Separately, the court held that even if the privilege had not been waived, the 'crime-fraud exception' would apply. This exception removes privilege protection from communications made to further an ongoing or future crime. The evidence demonstrated that Lentz's primary purpose in calling his attorney was to obtain information to advance his murder-for-hire plot, which is an unlawful purpose not protected by the privilege. Finally, the court rejected Lentz's Sixth Amendment claims, holding that the jail's recording policy did not unconstitutionally deny him access to counsel because other confidential channels like in-person visits and mail were available, and the Sixth Amendment does not protect a client's efforts to enlist an attorney's aid in committing a crime.
Analysis:
This case significantly clarifies the scope of attorney-client privilege within correctional facilities, establishing that a general, automated warning about call monitoring is sufficient to defeat an inmate's expectation of confidentiality and waive the privilege. It reinforces the robust nature of the crime-fraud exception, applying it even when the client is merely soliciting information to plan a crime and the attorney is unaware of or counsels against the illegal activity. For future cases, this decision puts the onus on defense counsel and their incarcerated clients to use secure, non-monitored communication channels, such as in-person visits or legal mail, for sensitive discussions. It serves as a stark reminder that the protections afforded by the attorney-client privilege and the Sixth Amendment are not absolute and do not extend to the furtherance of criminal conduct.
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