Opinion
Case No. CR-3-99-086 (1 2)
October 2, 2002
Defendant Jack Clark ("Clark") is charged in the Indictment (Doc. #13) with conspiring to distribute and to possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 846. He is also charged with two counts of money laundering in violation of 18 U.S.C. § 1956, an interstate travel count in violation of 18 U.S.C. § 1952, attempting to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846 and using and carrying firearms during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). Defendant Daniel Nixon ("Nixon") is charged in the Indictment (Doc. #13) with conspiring to distribute and to possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 846. He is also charged with an interstate travel count in violation of 18 U.S.C. § 1952, possessing with intent to distribute cocaine in violation of 21 U.S.C. § 841 and using and carrying firearms during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c).
This case is now before the Court on Clark's Motion to Dismiss and for Other Appropriate Sanctions (Doc. #274), and Nixon's Motion Joining in Motion to Dismiss and for Other Appropriate Sanctions, Filed by Co-Defendant Jack Clark (Doc. #368). In its Decision of March 25, 2002, this Court overruled Clark's Motion to Dismiss and for Other Appropriate Sanctions (Doc. #274). See Doc. #615. That motion had arisen out of the decision of agents of the Federal Bureau of Investigation to review the documents which Clark had accumulated while being held as a pre-trial detainee in the Montgomery County Jail. In its Decision, the Court rejected Clark's argument that the charges against him must be dismissed, because his Sixth Amendment rights were violated when the agents read his documents, writing:
Clark has also filed two pro se motions requesting the appointment of a special prosecutor (see Docs. #248 and #267), and a pro se motion asserting that he has been subjected to a pattern of civil rights violations committed by agents of the Government (see Doc. #268). These three motions have been subsumed by Clark's Motion to Dismiss and for Other Appropriate Sanctions (Doc. #274), which was filed by his counsel. Accordingly, the Court overrules, as moot, Clark's Pro se Motions for Appointment of a Special Prosecutor (Docs. #248 and #267) and his Motion for Order Regarding Pattern of Civil Rights Violations (Doc. #268).
Herein, this Court, as did the Supreme Court in [United States v. Morrison, 449 U.S. 361 (1981)], assumes for present purposes that Mygrants, Shaw and/or Bush violated [Clark's] right to counsel under the Sixth Amendment by reading his documents, because his papers contained communications with his counsel and work product. For reasons which follow, however, the Court concludes that [Clark] has failed to show demonstrable prejudice, or the substantial threat thereof, and that, therefore, dismissal of the Indictment is not an appropriate remedy. [Clark] has failed to demonstrate that he suffered any prejudice as a result of the fact that his papers were read by one or more of the FBI agents. For instance, [Clark] failed to provide any of his papers to the Court for an in camera review, in order to show that his papers contained communications with his counsel, work product or the theory of his defense. Such a review might have convinced the Court that [Clark's] entire theory of defense was contained in his papers and that the Government agents could not have avoided seeing and remembering the relevant document(s), and that, therefore, dismissal would be the only possible manner of remedying the violation. In addition, the Government has not retained any of [Clark's] papers for use at trial; therefore, the type of prejudice suffered by the petitioner in Bishop [v. Rose, 701 F.2d 1150 (6th Cir. 1983)] will not befall [Clark]. Based upon the testimony of the Government's agents, this Court finds that they did not gain knowledge of [Clark's] communications with his counsel, work product or the theory of his defense, as a result of their review of his papers. All the agents testified that they did not remember seeing such documents. That testimony is buttressed by the fact that Shaw and Bush were looking for evidence of the attempted escape, while Mygrants was looking for evidence that [Clark] was involved in the intimidation of witnesses and the subornation of perjury.
Doc. #615 at 35-36 (footnotes omitted). On that same date, the Court overruled Nixon's Motion Joining in Motion to Dismiss and for Other Appropriate Sanctions, Filed by Co-Defendant Jack Clark (Doc. #368), which was also predicated upon the fact that FBI agents had read Clark's documents. See Doc. #616.
The Court has permitted Nixon to participate in the evidentiary hearing and subsequent briefing, resulting from Clark's request that this litigation be dismissed.
During the telephone conference call which the Court conducted with counsel on March 25, 2002, Clark's attorney pointed out that he had submitted copies of many of the documents which had been taken from his client at the Montgomery County Jail, for an in camera review by the Court. The Court interpreted the comments of Clark's and Nixon's counsel as oral Motions for Reconsideration. Thereafter, the Court vacated the portions of its Decisions of March 25, 2002 (Docs. #615 and #616), with which it had overruled the requests of Nixon and Clark that the Indictment be dismissed, because FBI agents had read Clark's documents.See Doc. #620.
The Court has now read the 811 pages of documents which Clark submitted for an in camera review. Based upon that review, the Court is now even more firmly convinced that neither Clark nor Nixon suffered prejudice because FBI agents read Clark's documents, since those documents do not contain work product or the theory of Clark's defense. In addition, to the extent that communications between Clark and his counsel are contained therein, their disclosure cannot have caused Clark to suffer prejudice. Accordingly, the Court overrules Clark's Motion to Dismiss and for Other Appropriate Sanctions (Doc. #274), and Nixon's Motion Joining in Motion to Dismiss and for Other Appropriate Sanctions, Filed by Co-Defendant Jack Clark (Doc. #368). In addition, the Court reinstates its Decisions of March 25, 2002 (Docs. #615 and #616), as supplemented by the reasoning herein, and overrules the oral Motions for Reconsideration. As a means of analysis, the Court will initially rule upon Clark's motion, following which it will turn to that joined in by Nixon.
I. Clark's Motion to Dismiss and for Other Appropriate Sanctions (Doc. #274)
The genesis of this motion is an attempted escape from the Montgomery County Jail during May, 2000. At that time, Clark was incarcerated in Range E4S of that facility. A number of the prisoners housed on that Range were, like Clark, pretrial detainees being incarcerated in the Montgomery County Jail as a result of having been charged with committing federal offenses. On or about May 25, 2000, Clennie Manning ("Manning") and Kelly Johnson ("Johnson"), Manning's attorney, met with the Margaret Quinn ("Quinn"), the Assistant United States Attorney prosecuting this case, and FBI Special Agent Timothy Shaw ("Shaw"). Johnson and Manning told Shaw and Quinn that certain prisoners in Range E4S had sawed through some of the bars and were planning an escape. Shaw contacted Wayne Woodall ("Woodall") of the United States Marshall's Service, who immediately went to the Montgomery County Jail to discuss the attempted escape with officials of that facility. Corrections officers inspected Range E4S and discovered that two bars had been sawed through completely and that others had been partially cut. As a result, all of the prisoners being held on Range E4S were moved, some to other areas of the Montgomery County Jail and others to different facilities.
Quinn was also the Assistant United States Attorney assigned to Manning's prosecution.
Officials at the jail also discovered a rope which had been made from torn sheets.
During the evening of May 25th, Clark was moved from the Montgomery County Jail to the Clark County Jail. Clark's property was not, however, moved with him to the Clark County facility. Rather, officers employed at the Montgomery County Jail gathered up Clark's belongings and put them in a bag and two boxes. The bag and the boxes were stored at the Montgomery County Jail until June 5, 2000, when Woodall retrieved them. Rather than returning Clark's property or sending it to a family member, Woodall gave that property to Shaw and FBI Special Agent Mike Bush ("Bush"), who were investigating the attempted escape. The two agents reviewed the contents of the boxes and bag to ascertain whether either contained evidence of that attempt. Bush examined one of the boxes, which he described as being fairly full of letters, notes and miscellaneous pieces of paper. Transcript of February 1, 2001, Hearing (Doc. #459) at 39. Certain documents caused Bush to believe that Clark was involved in intimidating witnesses or suborning perjury in this prosecution. In particular, he saw what appeared to be notes which Clark could show to a visitor, indicating that a particular individual should be directed to say specific things. Bush showed some of those notes to Shaw, who concurred in his colleague's analysis. Shaw and Bush completed their review of Clark's property in short order, quickly coming to the conclusion that it did not contain evidence of the attempted escape. During their review of Clark's property, neither Shaw nor Bush could remember seeing any document which constituted a communication between Clark and his counsel or which referred to either the thoughts of his attorney or the theory of Clark's defense.
All of the cells on Range E4S were searched by Montgomery County Sheriff's Deputies, who were looking for evidence of the escape. No such evidence was found among Clark's property. Clark's property was placed in the two boxes and the bag as part of the search.
Woodall testified that, when a federal prisoner is transferred from one jail to another, the Marshall's Service would normally send his property to a family member. Transcript of January 4, 2001, Hearing (Doc. #372) at 10.
Shaw examined the other box and the bag, which contained only toiletries, personal clothing and food belonging to Clark.
Shaw testified that three weeks after the attempted escape, the investigation had revealed that Clark had not been involved. Transcript of January 16, 2001, Hearing (Doc. #458) at 27-28.
Once again, Clark's property was not returned. Rather, since they had noticed writing which caused them to believe that Clark had been involved in the intimidation of witnesses or suborning perjury in this prosecution, they gave the two boxes and the bag to Mygrants, the case agent for the FBI on this case. Before he reviewed the papers, Mygrants discussed the matter with Quinn, who told him to review the materials to determine whether they contained evidence of intimidating witnesses or suborning perjury. Mygrants reviewed the materials, looking for such evidence. He testified that one of the boxes was about two-thirds to three quarters full of pieces of paper, which included directions to write the Attorney General to demand an investigation of the Task Force prosecuting him and derogatory comments about those involved in his investigation and prosecution. Transcript of January 16, 2001, Hearing (Doc. #458) at 82, 98. Mygrants set aside 25 to 30 pages which concerned him about intimidation of witnesses and the like. He did not recall seeing any documents which appeared to be communications between Clark and an attorney, work product or which set forth the theory of Clark's defense. He also contacted some of the Government's anticipated witnesses to determine whether they had been threatened by Clark's family members. In addition, Mygrants contacted Detective John Brun ("Brun"), a member of the Ohio Organized Crime Investigations Committee that had been investigating Clark and his associates for a number of years. During that investigation, Brun had handled the pen registers and, thus, was the investigator most familiar with the phone numbers used by Clark's associates. Mygrants shared telephone numbers with Brun to ascertain whether they could identify anyone Clark might have used to intimidate witnesses. Mygrants did not share the materials with anyone other than Brun.
Shaw and Bush both received Clark's property from Woodall and gave it to Mygrants on June 5th.
As previously indicated, the other box and the bag contained items of clothing, toiletries and food belonging to Clark.
It is quite understandable that Mygrants did not recall seeing any such documents, given that he was searching for evidence of the intimidation of witnesses and the subornation of perjury.
At no point did the Government seek or obtain a search warrant to examine Clark's property for evidence of the attempted escape, intimidation of witnesses or suborning perjury. After this Court directed the Government to return Clark's property, it was returned to his attorney. Neither Mygrants nor any other Government agent retained copies of any of Clark's documents. Indeed, both Mygrants and Brun destroyed all copies and notes they had taken when they had reviewed Clark's papers.
The Government gave Clark's property to his counsel before July 10, 2000. See Transcript of July 10, 2000, Hearing (Doc. #310).
In his post-hearing memorandum (Doc. #477), Clark argues that, by taking and reading his papers, the Government violated his right under the Fourth Amendment to be free from unreasonable searches and seizures and his right to counsel guaranteed by the Sixth Amendment. As a remedy for those violations of his constitutional rights, Clark suggests that the Court should dismiss this Indictment or, in the alternative, that the Court should prohibit Mygrants and Assistant United States Attorney Margaret Quinn from participating further in this prosecution. As a means of analysis, the Court will discuss Clark's contentions that the Government violated his rights under the Fourth and Sixth Amendments, in the above order.
Clark also contends that the Government violated his right to be free from self-incrimination, as guaranteed by the Fifth Amendment, when its agents took and read his papers. This Court cannot agree. InAndresen v. Maryland, 427 U.S. 463 (1976), the Supreme Court held that the seizure of the defendant's records did not violate his right to be free from self-incrimination, since the records existed before they had been seized and the defendant had not been compelled to do or to say anything. See also, Fisher v. United States, 425 U.S. 391 (1976). Similarly, Clark's papers already existed when they were seized from his jail cell. He was not compelled to say or to do anything or to write anything thereon. Accordingly, the seizure and reading of Clark's papers did not violate his right to be free from self-incrimination under the Fifth Amendment. Moreover, the Government will not introduce any of those records during the trial. Clark also argues that the Government has the burden of showing that its proposed evidence derives from sources wholly independent of his self-incriminating papers. See Doc. #477 at 26 (citing Kastigar v. United States, 406 U.S. 441 (1972) and Hubbell v. United States, 120 S.Ct. 2037 (2000)). Given that the Court has concluded that Clark has not been compelled to testify against himself, the Court rejects his assertion that the Government has the burden of showing that its proposed evidence derives from sources wholly independent of Clark's papers.
In addition, Clark argues that the Government violated his right to reciprocal discovery under the Due Process Clause of the Fifth Amendment. In support of this argument, Clark relies upon Wardius v. Oregon, 412 U.S. 470 (1973), wherein the Supreme Court held that the Due Process Clause of the Fourteenth Amendment forbade the enforcement of an Oregon statute which prevented a criminal defendant from introducing alibi evidence when he had failed to disclose that evidence, because the statute permitted the prosecution to withhold reciprocal notice of its alibi rebuttal witnesses. See Id. at 475 (reasoning that "[t]he State may not insist that trials be run as a `search for truth' so far as defense witnesses are concerned, while maintaining `poker game' secrecy for its own witnesses"). Clark's unstated premise in support of his Due Process challenge is that the Government was able to obtain his trial preparation materials, as a result of the seizure of his papers, which constitutes a deprivation of due process, since the Government has not shared its trial preparation materials with him. Below, the Court concludes that the Government has not become privy to Clark's trial preparation materials. Based upon that reasoning, the Court concludes that the seizure of Clark's materials did not constitute non-reciprocal discovery in violation of the Due Process Clause of the Fifth Amendment.
A. Fourth Amendment
The Government contends that Clark's rights under the Fourth Amendment were not violated, because as a pretrial detainee he was without Fourth Amendment rights. For reasons which follow, this Court disagrees. InBell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court assumed for purposes of its decision that a pretrial detainee, such as Clark, retained a reasonable expectation of privacy in his cell, which is protected by the Fourth Amendment. Id. at 556-57. In Hudson v. Palmer, 468 U.S. 517 (1984), the decision upon which the Government relies herein, the Supreme Court held that a prisoner incarcerated after being convicted of a crime does not have a right to privacy in his prison cell which is guaranteed by the Fourth Amendment.
In Bell, the Supreme Court held that a pretrial detainee's assumed Fourth Amendment right was not violated when he was not permitted to observe the search of his cell.
In United States v. Cohen, 796 F.2d 20 (2nd Cir. 1986), a case presenting similar issues to those raised by Clark's Fourth Amendment argument, the Second Circuit harmonized Bell and Hudson. Therein, the defendant was a pretrial detainee being held pending his trial on drug conspiracy charges. At the request of the Assistant United States Attorney who was handling the defendant's prosecution, his cell was searched, in order to discover both evidence to support the charges pending against the defendant and other charges. Subsequently, the defendant moved to suppress the evidence which had been seized from his cell, arguing that the search had violated his rights under the Fourth Amendment. The District Court overruled that motion, concluding that the defendant did not have a reasonable expectation of privacy in his cell which was protected by the Fourth Amendment. During the defendant's subsequent trial, evidence which had been seized from his cell was introduced. The jury found the defendant guilty of the offenses with which he had been charged. Upon appeal, the Second Circuit concluded that the search of the defendant's cell had violated his rights under the Fourth Amendment. The Second Circuit discussed both Bell and Hudson and noted that, in Bell, the Supreme Court had concluded that the fact of confinement and the legitimate objectives of the penal institution curtail the rights of any prisoner, regardless of whether he has been convicted. 796 F.2d at 22-23. Nevertheless, the Second Circuit refused to adopt the position proposed by the Government, i.e., that a pretrial detainee retains no Fourth Amendment rights, regardless of the circumstances underlying the search. Id. at 23. The Second Circuit also noted that "the Supreme Court in Hudson did not contemplate a cell search solely to bolster the prosecution's case against a pretrial detainee awaiting his day in court; it did not have before it the issue of whether such a search could be lawfully used by government prosecutors to uncover information that would aid them in laying additional indictments against a detainee." Id. The Second Circuit concluded that the search of a pretrial detainee's cell must be related to institutional security concerns. Id. at 23-24. Since the search of the defendant's cell had been instigated by the prosecutor for the sole purpose of bolstering the Government's case against him, the Second Circuit concluded that he retained a Fourth Amendment right in his cell and remanded the matter to determine whether the introduction of illegally seized evidence was harmless error. Id. at 24. Accord, McCoy v. State, 639 So.2d 163 (Fla.App. 1994) (holding that, in Hudson, the Supreme Court had not intended its holding to extend to searches which were not even colorably motivated by concerns about institutional security and that search of the defendant's cell was illegal, as it was done at instigation of prosecutor for writings authored by the defendant which might contain incriminating statements); 4 LaFave, Search and Seizure § 10.9(a) at 735 ("if a pretrial detainee was subjected to a cell search not even colorably motivated by institutional security concerns, then surely Hudson should not be treated as foreclosing [a] challenge of that search").
This Court considers the Second Circuit's decision in Cohen to be persuasive and will follow same. Consequently, the question becomes whether the search of Clark's property was related to institutional safety concerns. As is indicated above, Clark's cell was searched and his property was placed in two boxes and a bag on the evening of May 25th, the date upon which the attempted escape was discovered. It cannot be questioned that this initial search was related to institutional safety concerns. However, what happened thereafter with regard to Clark's property was not related to such safety concerns. For the next 10 days, Clark's property remained in storage at the Montgomery County Jail. On June 5th, Woodall retrieved the property and transferred it to Bush and Shaw who were investigating the attempted escape. They examined the property and determined that it did not contain evidence of such. They also concluded that certain documents contained evidence of intimidating witnesses or suborning perjury. As a result, they transferred the property to Mygrants, the case agent for this prosecution, who reviewed Clark's papers looking for such evidence.
Since this Court will follow Cohen, it disagrees with the Government that Clark was stripped of all Fourth Amendment protection byHudson.
According to Woodall, when a federal pretrial detainee is transferred from one jail to another, his property is returned to a family member, because pretrial detainees are not permitted to bring their property into new jails. Rather than follow that procedure, Clark's property was first given to Shaw and Bush to be examined for evidence of the attempted escape and then to Mygrants to ascertain whether it contained evidence of intimidating witnesses or suborning perjury. The latter two are separate crimes from attempted escape. Since Clark had left the local county jail and his property could not pose a danger to the Clark County Jail, since his property could not accompany him to that facility, the Court concludes that the investigation of intimidating witnesses and subornation of perjury was unrelated to safety concerns at the Montgomery County or the Clark County Jail.
Accordingly, the Court concludes that Clark's Fourth Amendment rights were violated when his property was examined by the federal agents. Having so concluded, the Court must now determine the appropriate remedy. It is axiomatic that the exclusionary rule is the preferred remedy for any violation of the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643 (1961). Clark has not, however, suggested that the Court should suppress any evidence. Rather, he argues that the Court should dismiss this prosecution or, in the alternative, preclude Quinn and Mygrants from participating in it further. For reasons which follow, this Court declines to dismiss this prosecution or to prevent Quinn's or Mygrants' further participation therein.
As an initial matter, Clark has failed to site a single case which would support the dismissal of a prosecution as a result of a violation of the defendant's rights under the Fourth Amendment. On the contrary, the Supreme Court has indicated that it has not suggested that searches and seizures in violation of the Fourth Amendment warrant the dismissal of a prosecution; rather, the appropriate remedy in a criminal proceeding for such a constitutional deprivation "is limited to denying the prosecution the fruits of its transgression." United States v. Morrison, 449 U.S. 361, 366 (1981). See also, United States v. Rodriguez, 948 F.2d 914, 916 (5th Cir. 1991) (noting that remedy for a Fourth Amendment violation is the exclusion of evidence rather than the dismissal of the indictment), cert. denied, 504 U.S. 987 (1992). InCohen, the case upon which this Court has relied to conclude that the defendant's Fourth Amendment rights were violated, the Second Circuit did not suggest that such a remedy of dismissal was proper; rather, it remanded the matter for a determination as to whether the introduction of illegally obtained evidence was harmless. Moreover, even if the remedy of dismissal were permissible in an appropriate case, this would not be that case. Clark has not shown that the Government has derived evidence from the review of his documents conducted by Mygrants, Shaw and Bush. Clark simply has not been harmed or prejudiced in any way. It bears emphasis that the Government will not be able to introduce any of those documents at trial, since his property has been returned and its agents destroyed their copies and notes. Under these circumstances, the Court would not be willing to dismiss this prosecution, even if dismissal were an appropriate remedy.
In addition, the Court will not permit Mygrants, Shaw, Bush and/or Brun to testify about what they saw in Clark's documents.
In addition, the Court will decline to prohibit the further participation of Quinn and Mygrants in this prosecution. At the direction of the Court, Quinn filed an affidavit describing her participation in the review of Clark's papers. See Doc. #445. Therein, Quinn states that Mygrants did not show her any of Clark's documents and that she and Mygrants did not discuss attempting to obtain Clark's communications with his attorney or documents evincing his trial strategy. Under those circumstances, there is no basis for disqualifying Quinn from further participation in this prosecution. Mygrants' testimony concerning the documents he observed convinces this Court that he does not have a sufficient memory of any document which would prejudice Clark from maintaining his defense.
Clark suggests that Quinn failed to file such an affidavit. See Doc. #477 at 17. This Court does not agree. Quinn's affidavit, which accompanied a copy of Manning's testimony in another proceeding, was filed April 19, 2001. See Doc. #445.
Should the Government seek to introduce any evidence at Clark's upcoming trial which he believes could have been learned only from the review of the documents in question, the Court must be advised at once and a voir dire or in camera proceeding will be conducted at which the Government will have to satisfy the Court as to the independent source for that evidence.
B. Sixth Amendment
Clark also argues that the Government violated his right to counsel guaranteed by the Sixth Amendment. In particular, he argues that the Sixth Amendment was violated because the Government had access to his defense, as a result of the review of his papers. The Government does not argue that a pretrial detainee's papers cannot contain documents which are protected by the Sixth Amendment. Rather, the Government devotes its post-hearing memorandum to arguing that Clark's proposed remedy of dismissal, for any violation of his Sixth Amendment right to counsel, is not warranted. In support of that contention, the Government relies upon Morrison, supra, and Bishop v. Rose, 701 F.2d 1150 (6th Cir. 1983).
In Morrison, the defendant was charged with two counts of distributing heroin and retained counsel to represent her in the prosecution. Thereafter, two agents from the Drug Enforcement Agency met with her in an effort to obtain her cooperation in a related investigation. During the meeting, the agents disparaged the defendant's retained counsel and told her she could obtain better representation from the Public Defender. They also told her that she would benefit from cooperation. Subsequently, the agents visited her a second time. At the time of the visits, the agents knew that the defendant had been indicted and was represented by retained counsel. At no time did the defendant agree to cooperate with the agents, supply information to them or incriminate herself. In addition, she continued to be represented by her retained counsel. The defendant subsequently moved to dismiss the indictment, claiming that the agents had interfered with her right to counsel guaranteed by the Sixth Amendment. The District Court disagreed, after which the defendant entered a conditional plea of guilty permitting her to appeal the denial of her motion to dismiss. Upon appeal, the Third Circuit reversed, concluding that the defendant's Sixth Amendment right to counsel had been violated and that the appropriate remedy was dismissal of the prosecution. Upon further appeal by the United States, a unanimous Supreme Court reversed. The Court assumed for purposes of its decision that the defendant's Sixth Amendment right to counsel had been violated; however, it concluded the remedy imposed by the Third Circuit was not warranted, since remedies must be "tailored to the injury suffered and should not unnecessarily infringe on competing interests." 449 U.S. at 364. The Supreme Court held that "absent demonstrable prejudice, or substantial threat thereof, dismissal of an indictment is plainly inappropriate, even though the violation [of the Sixth Amendment] may have been deliberate." Id. at 365 (footnote omitted).
In Bishop, the Sixth Circuit affirmed the granting of habeas corpus relief to the petitioner, because the state had violated his right to counsel under the Sixth Amendment. While incarcerated in jail pending his trial in state court, the petitioner's attorney directed him to draft a chronology of his actions during the time he was accused of committing the offenses. After the petitioner had drafted his chronology, there was an attempted escape from the jail. Although the petitioner was not implicated in the escape, his papers including the chronology were seized and ultimately given to the prosecutor. During the trial, the prosecutor attempted to have the chronology introduced in its case-in-chief. Although the trial court refused that request, it permitted the petitioner to be cross-examined with the chronology. After the petitioner had been convicted and exhausted his state remedies, he sought a writ ofhabeas corpus in United States District Court, asserting that the use of the chronology to cross-examine him violated his right to counsel under the Sixth Amendment. The District Court granted the requested writ, directing that the petitioner be released from incarceration unless he was afforded a new trial. Upon appeal, the Sixth Circuit affirmed. With respect to the remedy selected by the District Court, the Sixth Circuit relied upon Morrison and concluded that the District Court had properly held that the petitioner should be retried, since dismissal of the indictment was not an option. 701 F.2d at 1157. See also, United States v. Steele, 727 F.2d 580, 586 (6th Cir.) (citing Morrison for the proposition that "[e]ven where there is an intentional intrusion by the government into the attorney-client relationship, prejudice to the defendant must be shown before any remedy is granted"), cert. denied, 467 U.S. 1209 (1984).
Herein, this Court, as did the Supreme Court in Morrison, assumes for present purposes that Mygrants, Shaw and/or Bush violated Clark's right to counsel under the Sixth Amendment by reading his documents, because his papers contained communications with his counsel and work product. For reasons which follow, however, the Court concludes that Clark has failed to show demonstrable prejudice, or the substantial threat thereof, and that, therefore, dismissal of the Indictment is not an appropriate remedy. Clark has failed to demonstrate that he suffered any prejudice as a result of the fact that his papers were read by one or more of the FBI agents.
For reasons set forth above, the Court concludes that disqualification of Quinn and/or Mygrants is not an appropriate remedy for the assumed violation of Clark's right to counsel under the Sixth Amendment. In addition, Clark has not suggested that the Court should suppress any evidence as a result of the alleged violation of that constitutional right.
The Court has conducted an in camera review of the 811 pages of documents submitted by Clark. The following description of the documents is somewhat circumspect, since they were submitted to the Court for anin camera review. The first 499 pages of documents are letters written to Clark, while he was incarcerated in the Montgomery County Jail. Those letters were written by Clark's sister, nephews, girlfriends, children (acknowledged or not) and acquaintances. None of those letters reveals the theory of Clark's defense or work product, and none of the letters are from Clark's counsel.
Given that these letters were written by individuals other than Clark's counsel, they could not constitute communications protected by the attorney-client privilege.
A number of those letters were written to Clark by Leslie Collins ("Collins"), a Co-Defendant and Clark's former girlfriend. Collins has entered a guilty plea and apparently will testify against Clark at his trial. Both Clark and his counsel have argued that the Government took advantage of Collins' letters, in order to convince her to plead guilty and testify against Clark. According to Clark and his counsel, Collins' letters reveal that she was extremely jealous of Clark's relationships with other women. Building upon that premise, they argue that Mygrants learned about Collins' jealousy by reading her letters to Clark and, then, he exploited that jealousy to persuade her to agree to testify against Clark. Although the Court agrees with the premise that Collins' letters to Clark reveal that she was extremely jealous, the record does not support the proposition that Mygrants exploited that jealousy in order to convince Collins to cooperate and to testify against Clark. Collins testified during the evidentiary hearing on Clark's and Nixon's motions. In particular, she testified that she remembered the letters that she had written to Clark while he was incarcerated and that she expressed her concern that Clark may have been involved with other women in some of those letters. Transcript of February 1, 2001, Proceeding (Doc. #459) at 6. In response to a question from Clark's counsel, Collins indicated that the Government agents did not mention in their conversations with her any of the people she had written about in her letters to Clark. Id. at 7. Based upon that testimony, the Court finds that Mygrants and the other agents who interviewed Collins before she plead guilty did not exploit her jealousy in order to convince her to testify against him. Thus, assuming for sake of argument that Mygrants and the other officers learned of Collins' jealousy from Clark's papers, the agents did not utilize that knowledge to obtain Collins' cooperation.
As Clark's counsel suggests, the appropriate remedy would be to prevent Collins from testifying, if the Court were to determine that Clark's rights were violated because Mygrants had learned about Collins' jealousy from his review of Clark's papers and had exploited that knowledge to convince her to testify against Clark.
After this Court had issued its initial Decision overruling Clark's motion, he sent the Court four letters setting forth his reasons for believing that such Decision was erroneous. The Court docketed those letters and indicated that it would consider the arguments therein in this Decision. See Doc. #627. The Court has considered the arguments raised by Clark and does not find any of them to serve as the basis for dismissing this prosecution. In addition, the Court also afforded counsel for the parties the option of submitting memoranda commenting upon the arguments contained in those letters. No responsive comments have been submitted. In those letters, Clark put forth the arguments concerning Collins, which the Court has rejected above, in the body of this Decision.
The remaining 312 pages are a mixture of different types of documents. Many appear to be notes that Clark had written to show to someone who was visiting him at the jail, in order to communicate with that person without being overheard. Other documents are Clark's lists of things to do to prepare for trial, apparently directed toward himself. In all of those documents, Clark repeatedly mentions the theory of his defense, i.e., that he is an innocent man who is being held in jail without bond because of lies from so-called confidential informants, East Dayton "crack heads" and federal and state law enforcement officers. Clark also asserts that there is no evidence against him and criticizes what he considers to be improper law enforcement activities such as the search of 2320 State Route 725, Spring Valley, Ohio, where children were present and allegedly endangered, as well as intimidation and harassment of witnesses which will result in coerced testimony being presented against him. The matters set forth by Clark in those 312 pages of materials do not differ significantly from the allegations contained in his many letters to this Court. Simply stated, even if this Court were to assume that the Government learned from Clark's papers that he believed he was innocent, that the Government's witnesses were liars and that the Government was without evidence, the Court cannot conclude that Clark suffered prejudice as a result. Such thoughts would not be unique coming from defendants held in custody while awaiting trial.
Some pages merely indicate what Clark had ordered from the commissary at the jail. The Court cannot conceive of the prejudice which disclosure of those lists could have caused Clark to suffer.
Clark wrote a two-page list of individuals he wanted his attorney to call as witnesses. Those individuals are mainly his relatives, his Co-Defendants or their relatives. Simply stated, the disclosure of those names to the Government cannot have prejudiced Clark. In addition, Clark's proposed questions for potential jurors are included among his papers. Since those questions are merely a variation on his theme that the Government's agents have violated his rights and that he is innocent, their disclosure was not prejudicial.
A few pages of the materials may be copies of communications Clark had with his counsel or, at least, a listing of topics he wanted to discuss with his attorney. At the tops of those documents, the designation "For My Att." or "For Att." appears. Based upon its careful review of those documents, the Court concludes that Clark did not suffer prejudice as a result of the Government reading those pages. Most of the ideas set forth by Clark on those pages relate to his allegations of misconduct by Government agents (for instance, he accuses federal and state officers of running around kicking-in people's doors and threatening to send innocent people to prison or to take their children from them). In addition, Clark expresses his belief that he is innocent and that he is being persecuted by a large number of liars who have been convicted of numerous offenses. He also expresses his opinion that, if the seven kilograms of cocaine which were seized from a van which had been stopped on Interstate 675 on February 6, 1998, were to be suppressed, a number of the counts in the Indictment would lose factual support. This is both an accurate statement and one of which the Government could hardly have been unaware prior to any review of Clark's papers. Disclosure of the statements set forth on the pages marked "For My Att." of "For Att." cannot have caused Clark to suffer prejudice, since those pages merely include his generic defense that he is innocent and being prosecuted by lying convicts and by law enforcement officers who are breaking the law.
On at least one of the documents with such a heading, the word "Blaine" appears next to some entries. Blaine is the first name of Clark's brother. Presumably, the items appearing next to Blaine's name were tasks Clark had assigned to his brother rather than to his attorney.
On one page which is captioned "For Att.," Clark mentions that Roy Johnson could provide defense testimony on Count Seven of the Indictment. Recent proceedings have indicated that Johnson has been cooperating with law enforcement since April, 1999, and that he testified before the Grand Jury. Therefore, reading his name in Clark's papers cannot have provided an advantage to the Government.
In sum, the in camera review fails to cause the Court to find that the Government could have obtained an advantage by reading Clark's papers. Those papers do not reveal the theory of his defense, other than the generic defense that he is an innocent man who is being persecuted by gangsters, masquerading as law enforcement officers, who have recruited every lying, East Dayton "crack head" to testify against him. In addition, the Government has not retained any of Clark's papers for use at trial; therefore, the type of prejudice suffered by the petitioner inBishop will not befall Clark. Based upon the testimony of the Government's agents, this Court finds that they did not gain knowledge of Clark's communications with his counsel, work product or the theory of his defense, as a result of their review of his papers. All the agents testified that they did not remember seeing such documents.
Clark complains that some of his papers were not returned to him. The Government states that those papers could have been mislaid when jail personnel initially searched his cell on May 25th. Clark speculates that they may have disappeared from the office of the FBI, since Mygrants left those papers, unsecured in his cubicle for a week. Regardless of the reason for the disappearance of some of Clark's papers, this Court is firmly convinced that the Government and its agents have not retained them. Rather, the Court credits the testimony of Mygrants and Brun that Clark's papers were returned and that all copies and notes were destroyed. There was no reason for the Government to have retained some of Clark's papers, since it would not be able to use them at trial. In addition, Clark has not demonstrated that he suffered prejudice as a result of the non-return of some of his papers, because they are necessary to his defense and could not be re-created.
If, during the trial, the Government should attempt to introduce any of Clark's papers which he had kept at the Montgomery County Jail or to have one of its agents testify about the contents of such a document, the least of its problems will be the fact that the Court will not permit the introduction of such evidence.
In sum, the Court has concluded that the Government violated Clark's rights under the Fourth Amendment by reading his papers. In addition, the Court has assumed that said activity violated his right to counsel secured by the Sixth Amendment. Such violations could have been easily avoided by obtaining a search warrant and by having personnel who were not involved in Clark's prosecution review his papers. Nevertheless, since Clark has failed to show that he suffered prejudice as a result of those deprivations, or the threat of same, the Court is without the authority to impose the requested remedy of dismissal of the indictment. In addition, the Court will decline to prohibit Quinn and/or Mygrants from participating further in this prosecution.
For the above reasons, Clark's Motion to Dismiss and for Other Appropriate Sanctions (Doc. #274) is overruled.
II. Nixon's Motion Joining in Motion to Dismiss and for Other Appropriate Sanctions, Filed by Co-Defendant Jack Clark (Doc. #368)
The genesis of Nixon's motion, as with Clark's, is the attempted escape from the Montgomery County Jail in May, 2000, and the fact that Clark's papers were subsequently read by Government agents. Nixon's theory is that the Court must dismiss the prosecution against him, because Clark's papers contain information concerning his (Nixon's) joint defense plans with Clark. Above, the Court has overruled Clark's Motion to Dismiss and for Other Appropriate Sanctions (Doc. #274), concluding, inter alia, that the review of his papers did not cause the Government to learn of his communications with his counsel, work product or the theory of his defense. A review of Clark's papers has also caused the Court to conclude that they did not include information relating to Nixon's joint defense plans with Clark. Moreover, assuming for sake of argument that there would be a basis for dismissing the prosecution of Nixon, if the Court had concluded that the prosecution of Clark must be dismissed, there is no evidentiary or legal basis for granting Nixon's request to dismiss this prosecution or to impose some sanction on the Government, given that the Court has declined Clark's request for same.
Accordingly, the Court overrules Nixon's Motion Joining in Motion to Dismiss and for Other Appropriate Sanctions, Filed by Co-Defendant Jack Clark (Doc. #368).