USA v. Wade

Filing 1148

Order, Terminate Motions

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA,
Plaintiff,
vs.

Case No. 3:07-cr-111-RRB-JDR
ORDER DENYING
DEFENDANT’S MOTION TO
SHOW CAUSE

JOSHUA ALAN WADE,
(Docket No. 1115)
Defendant.

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.”
Legal Background
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
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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
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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
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been dismissed because the government agents’ “gross intrusion into the attorneyclient 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.
//
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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
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initially represented defendants turned over certain privileged information to the
government).

That court identified two remedies for such misconduct.

First,

dismissal of the indictment which the court considered drastic, disfavored and thus
available only in the most egregious cases. Secondly, suppression at trial of
evidence improperly obtained.
The Due Process Clause of the Fifth Amendment bars law enforcement
conduct that violates fundamental fairness or is shocking to the universal sense of
justice. See Rochin v. California, 342 U.S. 165 (1952) (vacating conviction and
dismissing indictment where police had pumped stomach of suspected drug pusher
to obtain incriminating evidence).

The claim of outrageous government conduct

premised upon a deliberate intrusion into the attorney-client relationship will be
cognizable where the defendant can point to actual and substantial prejudice.
Application of Law
The mere opening of legal mail by officials at the jail under the
circumstances presented does not constitute outrageous government conduct in the
absence of any contention of deliberate intrusion into the attorney-client relationship
by or on behalf of the prosecution in the absence of a showing of any actual and
substantial prejudice. There is no claim that the mail was read by the DOC officers
or agents or that any information contained therein was communicated to or
requested by the federal prosecutors or law enforcement officers. There are no facts
alleged to suggest that the government purposely intruded into Wade’s attorney3-07-cr-111-RRB-JDR WADE @1115 Order Re Motion to Show Cause_mtd.wpd

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client relationship or that Wade has been subjected to prejudice in his defense
against the criminal prosecution.
Counsel for Wade states that they have attempted to remedy the
problem with the jail administration to no avail.

The government’s response

indicates that mail room personnel have now been counseled with respect to correct
procedures with regard to inmate legal mail and they are adhering to those
procedures. Negligent opening of legal mail is ordinarily a matter for a civil rights
grievance and civil litigation under the Civil Rights Act. The pleadings indicate that
Wade has filed a formal grievance with DOC and the grievance has been answered
within the context of administrative procedures.
Wade seeks a show cause order directing the jail administrators to
show cause why the charges brought by the United States should not be dismissed
because “of continuing violations of Wade’s right to counsel.” Docket 1115, p.1.
The response to this motion was properly made by an Assistant United States
Attorney on behalf of the United States, the sovereignty bringing the federal
prosecution against Wade. It is proper for the DOC administrators to defend or
respond to a challenge to their actions administratively or in a properly filed civil
rights action. It is not appropriate to demand DOC show cause why Wade’s
prosecution should be dismissed.
In order for a motion raising alleged constitutional violations by the
government to entitle the defendant to a pretrial evidentiary hearing, the defendant’s
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moving papers must demonstrate a colorable claim for relief. To be colorable, the
defendant’s motion must consist of more than mere ball-faced allegations of
misconduct; it must raise issues of fact material to resolution of the defendant’s
constitutional claim. See United States v. Panitz, 907 F.2d 1267, 1273-74 (1st Cir.
1990) (refusal to hold evidentiary hearing on outrageousness claim proper because
material facts were not in dispute). The defendant’s submissions must demonstrate
an issue of fact as to each of the three following elements: (1) the government’s
objective awareness of an on going, personal attorney-client relationship, (2)
deliberate intrusion into that relationship; and (3) actual and substantial prejudice.
Wade’s submissions failed to address elements (2) and (3) above.
The motion for an order to show cause does not place in issue any
material facts which if true would constitute outrageous conduct by the United States
nor support a determination that Wade has been subjected to actual and substantial
prejudice in his attorney-client relationship. An evidentiary hearing is required if a
material issue of fact is raised which, if resolved in accordance with the defendant’s
contentions, would entitle him to relief. See Irwin, 612 F.2d at 1187. An evidentiary
hearing is needed only when the moving papers allege facts with sufficient
definiteness, clarity and specificity to enable the court to conclude that relief must be
granted if the facts alleged are proved. In the instant case assuming that the factual

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allegations in Wade’s memorandum are true, an evidentiary hearing is not required.1
Wade is not entitled to the relief requested as a matter of law. Wherefore, the
defendant’s Motion for an Order to Show Cause why the Court Should not Dismiss
all Counts, Docket 1115, is hereby DENIED.

DATED this 30th day of December, 2009, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

1

An attorney’s memorandum of points and authorities does not take the place
of an affidavit wherein facts asserted are averred to be true.
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