The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
ORDER DENYING DEFENDANT'S MOTION TO SHOW CAUSE (Docket No. 1115)
Defendant Joshua Wade moves for an order directing the Anchorage Correctional Complex (ACC) to show cause why this court should not dismiss all counts against him for its continuing violations of his right to counsel. Docket 1115. The motion is opposed in a response filed by the United States at Docket No. 1133.
It is response the Government concedes that Wade's mail was inadvertently opened three times outside of his presence. Docket 1115, p.2.
Wade argues that the conduct of the Anchorage Correctional Complex employees in opening his mail at the mail room violates Wolff v. McDonnell, 418 U.S. 539 (1974) and Alaska Department of Corrections (DOC) Policy 808.01 VIII D, which provides: "The Department may open and search legal correspondence for contraband only in the presence of the defendant."
In Wolff v. McDonnell, supra, a civil rights action was brought to challenge administrative procedures and practices at the Nebraska Penal and Correctional Complex. The Supreme Court held that mail from attorneys to inmates could be opened by prison officials in the presence of inmates. The prison regulation under challenge in Wolff provided that "[a]ll incoming and outgoing mail will be read and inspected," without providing any exception for attorney prisoner mail. 418 U.S. at 574. The district court held that if an incoming letter was marked "privilege," thus, identifying that it was sent by an attorney, the letter could not be opened except in the presence of the inmate. The mail from attorneys was not to be read by prison authorities.
The Court of Appeals affirmed this order but added restrictions on prisoner authorities. The Eighth Circuit wrote that prison officials might have to go beyond the face of the envelope if there was any doubt that the letter was actually from an attorney. The court suggested a telephone call by the prison authorities would be appropriate to settle that factual issue. The Nebraska Penal and Correctional Complex conceded they could not open and read mail from attorneys to inmates but contended that they may open all letters from attorneys as long as it is done in the presence of the prisoners. The inmate asserted that his First, Sixth, and Fourteenth Amendment rights would be infringed under a procedure whereby the State may open mail from his attorney, even though in his presence and even though it may not be read.
The Supreme Court held that the Sixth Amendment's reach is only to protect the attorney-client relationship from intrusion in the criminal setting although the claim brought in Wolff v. McDonnell would insulate all mail from inspection whether related to civil or criminal matters. The Supreme Court declined to decide in that case whether inspection of incoming mail from an attorney places a substantial burden on the inmate's access to the court and instead addressed the question whether, assuming a constitutional right is implicated, it is infringed by the procedure found acceptable by the State.
The High Court found it acceptable that a state required communications from an attorney to be specially marked as originating from an attorney, with his name and address being given in order for the mail to receive special treatment. 418 U.S. at 576. The Court added that it would be permissible for prison authorities to require a lawyer desiring to correspond with a prisoner to first identify himself and his client to the prison officials to assure that the letters marked privileged are actually from members of the bar. The court stated that opening the mail in the presence of inmates would not constitute censorship as long as the mail was not read. The court recognized the possibility that contraband could be enclosed in letters including those from apparent attorneys warranted prison officials opening the letters. Id. at 577. The Supreme Court disagreed with the Eighth Circuit that opening the prisoner's mail could be done only in "appropriate circumstances."
Wade cites United States v. Irwin, 612 F.2d 1182, 1185 (9th Cir. 1980) for the Ninth Circuit's holding that government interference with the defendant's relationship with his attorney may render counsel's assistance so ineffective so as to violate his Fifth Amendment right to due process of law. The facts in Irwin are materially different. In exchange for a dismissal of the criminal charges against him Irwin agreed to become an informant for the police. Based on Irwin's conduct DEA agents concluded that Irwin was "double dealing," i.e., acting as an informant and selling drugs on the side. At trial, the government introduced recordings of telephone conversations between Irwin and a DEA agent who was posing as a large scale drug dealer unknown to Irwin. Some of the telephone calls were made without the consent of Irwin's counsel.
The district court denied the motion to dismiss the indictment on grounds of prosecutorial misconduct in violation of the plea agreement without an evidentiary hearing. Irwin contended on appeal that the Indictment should have been dismissed because the government agents' "gross intrusion into the attorney-client relationship" deprived him of his Fifth and Sixth Amendment rights. He argued that the agent (Wisdom) counseled Irwin to ignore the advice of his attorney that he not talk to or actively work with police or government agents.
The Ninth Circuit noted that government interference with a defendant's relationship with his attorney may render counsel's assistance so ineffective as to violate his Sixth Amendment right to counsel and his Fifth Amendment right to due process of law. 612 F.2d at 1185. The court stated that it was equally clear, however, that not all police action which arguably could be called an interference with the attorney-client relationship is volatile of those rights. The Ninth Circuit held that "mere government intrusion into the attorney-client relationship, although not condoned by the court, is not of itself volatile of the Sixth Amendment right to counsel. Rather, the right is only violated when the intrusion substantially prejudices the defendant." 612 F.2d at 1186-1187. The court explained that prejudice may result when evidence gained through the interference is used against the defendant at trial, or from the prosecution's use of confidential information pertaining to the defense plans and strategy, or from government influences which destroy the defendant's confidence in his attorney. The court recognized that other actions designed to give the prosecution an unfair advantage at trial may also result in prejudice.
In Irwin the government essentially conceded that it had elicited incriminating evidence from the defendant. The trial judge made it clear that any incriminating statements would be suppressed under the doctrine announced in Massiah v. United States, 377 U.S. 201 (1964). Because of the suppression of the incriminating statements, Irwin was not prejudiced at his trial or in his attorney-client relationship for purposes of his motion to dismiss. In Irwin the court assessed Agent Wisdom's conduct and found no evidence to support Irwin's contention that it destroyed the attorney-client relationship. There was no evidence to suggest that Irwin lacked confidence in his counsel or was dissatisfied with his counsel's representation, or that he had requested new counsel. Finally, the Ninth Circuit found that there was no evidence that the officers' questioning of Irwin sought to discover the strategy which Irwin and his counsel were planning for his defense or disclosed anything in the conversations which the government did not already know.
Wade also relies upon United States v. Haynes, 216 F.3d 789, 797 (9th Cir. 2000) for its holding that a claim of outrageous government conduct premised upon deliberate intrusion into the attorney-client relationship is cognizable where the defendant can point to actual and substantial prejudice. The Ninth Circuit Court of Appeals recognizes that a claim of outrageous government conduct may be premised upon delivered intrusion into the attorney-client relationship where the defendant can point to actual and substantial prejudice. United States v. Haynes, 216 F.3d 789, 796 (9th Cir. 2000) (private investigator who worked for attorney who initially represented defendants turned over certain privileged information to the government). That court identified two remedies for such ...