Hohn v. USA ***DO NOT FILE IN THIS CASE - All Filings to be Made in Criminal Case 2:12-cr-20003-CM-3 ONLY***
Filing
70
MEMORANDUM AND ORDER - The government's Motion to Reconsider (Doc. 11 ) is denied; the Court clarifies its ruling on several legal issues as detailed herein. The government's Motion in Limine (Doc. 28 ) is granted in part and denied in part. Petitioner Steven M. Hohn's Motion to Vacate and Discharge with Prejudice Under 28 U.S.C. § 2255 is denied. Hohn is also denied a COA. Signed by District Judge Julie A. Robinson on 12/9/2021. (heo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
In re: CCA Recordings 2255 Litigation,
Petitioners,
v.
Case No. 19-cv-2491-JAR-JPO
(This Document Relates to United States v.
Steven M. Hohn, Case No. 12-cr-20003-03JAR, Steven M. Hohn v. United States,
Case No. 19-cv-2082-JAR-JPO)
United States of America,
Respondent.
______________________________________________________________________________
MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Steven M. Hohn’s Motion to Vacate and
Discharge with Prejudice under 28 U.S.C. 2255 (Doc. 718 in Case No. 12-20003-03-JAR).1
Petitioner alleges the government violated the Sixth Amendment by intentionally and
unjustifiably intruding into his attorney-client relationship by becoming privy to his attorneyclient communications. As a remedy, he asks the Court to vacate his judgment with prejudice to
refiling or, alternatively, to vacate his sentence and impose a new sentence of 180 months, a 50%
reduction of his original custodial sentence. Also before the Court is the government’s Motion
for Reconsideration or Clarification (Doc. 958) of a pre-hearing decision on several legal
matters, which the Court deferred ruling on and will address in this Order, and the government’s
1
Unless otherwise specified, citations prefaced with “Doc.” refer to filings and docket entries in
this consolidated case, In re CCA Rec. 2255 Lit., Case No. 19-2491-JAR-JPO. With the exception of
United States v. Carter, Case No. 16-20032-03-JAR, Doc. 758 (D. Kan. Aug. 13, 2019) (“Black Order”),
citations to filings in Case No. 16-20032-JAR are prefaced with “Black, Doc.”
Motion in Limine (Doc. 983). An evidentiary hearing was held August 9 and 10, 2021. At the
close of the hearing, the Court directed the parties to submit proposed findings of fact and
conclusions of law.
The Court has carefully reviewed the parties’ submissions as well as the testimony and
evidence presented at the hearing, and is prepared to rule. For the reasons explained below, the
Court denies the government’s Motion for Reconsideration, clarifies its ruling on several legal
issues, and denies its Motion in Limine. The Court also denies Hohn’s § 2255 motion on the
merits.
I.
Background and Procedural History
Hohn was indicted on January 25, 2012, on drug and gun charges.2 He was detained at
Corrections Corporation of America (“CCA”) from January 27, 2012, to March 28, 2014.3 The
investigation that led to Hohn’s arrest was led by Deputy Perry Williams in the Johnson County,
Kansas Sheriff’s Office (“JSCO”) and JSCO Deputy Nathaniel Denton, as well as Christopher
Farkes, a Task Force Officer (“TFO”) with the Drug Enforcement Administration (“DEA”).
Assistant United States Attorney (“AUSA”) Terra Morehead in the Kansas City Office of the
United States Attorney (“USAO”) prosecuted Hohn. The criminal case was assigned to Judge
Carlos Murguia, who presided over pretrial, trial, sentencing, and post-trial matters until
February 21, 2020, when the case was reassigned to the undersigned after Judge Murguia
resigned from the bench.4 The court initially appointed Assistant Federal Public Defender Tim
Burdick to represent Hohn. On April 23, 2012, the court appointed James Campbell as substitute
counsel. Hohn placed a call to Campbell from CCA that day.
2
United States v. Hohn, 12-20003-03-JAR, Doc. 18.
3
Doc. 1004 ¶ 2.
4
Hohn, 12-20003-03-JAR, Doc. 740.
2
On May 22, 2012, Hohn was charged in a multi-defendant Second Superseding
Indictment with conspiracy to distribute and possess with intent to distribute 50 grams or more of
methamphetamine; possession of a firearm by a user of controlled substances; and possession of
an unregistered short-barreled shotgun. Many of the conspirators reached plea agreements with
the government and testified against Hohn and his co-defendant, Michael Redifer, at their trial.
After a twelve-day trial, a jury convicted Hohn on all counts. On January 28, 2014, Judge
Murguia imposed a 360-month sentence, followed by a five-year term of supervised release.
Hohn appealed his conviction and sentence to the Tenth Circuit Court of Appeals.5 On
appeal, Hohn raised six issues regarding trial errors and one regarding his sentence: the court
erred in finding his Guideline offense level should be increased two levels for imported drugs.
The court affirmed on all grounds.6 On June 15, 2016, Judge Murguia denied Hohn’s motion to
reduce his sentence to the new low-end of the advisory Guideline range, 292 months, pursuant to
18 U.S.C. § 3582(c)(2).7
In the course of the litigation in Black, it was discovered that the government had
obtained recordings of phone calls that detainees placed to counsel from CCA. The government
produced some of these recordings to the Federal Public Defender (“FPD”) on January 7, 2019,
including the April 23, 2012 call that Hohn made to Campbell. The FPD filed this § 2255
motion on Hohn’s behalf on February 2, 2019. The Court denied the government’s motion to
dismiss on procedural default and timeliness grounds under § 2255(f)(4) and set the motion for
evidentiary hearing.8 The Court subsequently denied the government’s motion to reconsider its
5
United States v. Hohn, 606 F. App’x 902 (10th Cir. 2015).
6
Id. at 911.
7
Hohn, 12-20003-03-JAR, Doc. 607.
8
Doc. 758.
3
decision to grant Hohn an evidentiary hearing, but corrected its description of his sworn
statement in its order.9
The Court conducted an evidentiary hearing on Hohn’s Sixth Amendment claim on
August 9 and 10, 2021. The Court subsequently denied as futile Hohn’s motion for leave to
supplement or amend his § 2255 motion to allege that AUSA Morehead violated his due process
rights under Brady v. Maryland10 and Giglio v. United States11 based on evidence that came to
light at the hearing.12
II.
Sixth Amendment Standard
The Court assumes the reader is familiar with its ruling in United States v. Carter (“Black
Order”) that precipitates the motions before the Court.13 That comprehensive opinion was
intended to provide a record for future consideration of the many anticipated motions filed
pursuant to § 2255 and is incorporated by reference herein. The Court also assumes the reader is
familiar with its January 18, 2021 Order in the consolidated master case that frames the issue
before the Court (“January 18 Order”).14 That Order addressed the governing standard for Sixth
Amendment intentional-intrusion claims under Shillinger v. Haworth, and is incorporated by
reference herein.15 The Court will provide excerpts from these Orders as needed to frame and
inform its discussion of the issues presently before it.
9
Doc. 993.
10
373 U.S. 83 (1963).
11
405 U.S. 150 (1972).
12
Doc. 1022.
13
Case No. 16-20032-JAR, Doc. 758 (D. Kan. Aug. 13, 2019). As discussed in that Order, petitioners’
Sixth Amendment claims stem from recordings of conversations and meetings with counsel while they were
detained at Corrections Corporation of America (“CCA”). That facility has since been renamed CoreCivic. For
convenience, the Court refers to it as CCA in this Order.
14
Doc. 730.
15
70 F.3d 1132, 1142 (10th Cir. 1995); see Doc. 730 at 5–20.
4
A.
Overview
The Sixth Amendment provides that a criminal defendant shall have the right to “the
Assistance of Counsel for his defence.”16 Claims of government intrusion into the attorneyclient relationship like those at issue here are included in the category of cases to be considered
when deciding if a defendant has been denied the right to effective assistance of counsel. The
Supreme Court has explained that this right has been accorded “not for its own sake, but because
of the effect it has on the ability of the accused to receive a fair trial.”17
In general, to prevail on an ineffective assistance of counsel claim under the Sixth
Amendment, a petitioner has the burden of showing a reasonable probability of prejudice.18 In
Strickland v. Washington, the Supreme Court set forth the familiar two-prong standard for
evaluating ineffective assistance of counsel: that counsel’s performance was deficient and that
deficiency prejudiced the defense.19 The prejudice requirement, which is at issue in this case,
“arises from the very nature of the right to effective representation.”20 In other words, “a
violation of the Sixth Amendment right to effective representation is not ‘complete’ until the
defendant is prejudiced.”21
Relevant here, the Sixth Amendment right to effective assistance of counsel includes the
ability to speak candidly and confidentially with counsel free from unreasonable government
16
U.S. Const. amend. VI.
17
Mickens v. Taylor, 535 U.S. 162, 166 (2002) (quoting United States v. Cronic, 466 U.S. 648, 658
18
Strickland v. Washington, 466 U.S. 668, 687 (1984).
19
Id.
20
United States v. Gonzalez-Lopez, 548 U.S. 140, 147 (2006).
21
Id. (citing Strickland, 466 U.S. at 685).
(1984)).
5
interference.22 The Supreme Court has held that the government violates the Sixth Amendment
when it intentionally interferes with the confidential relationship between defendant and defense
counsel and that interference prejudices the defendant.23 The Court did not, and still has not,
resolved “the issue of who bears the burden of persuasion for establishing prejudice or lack
thereof when the Sixth Amendment violation involves the transmission of confidential defense
strategy information.”24 As discussed in detail in the January 18 Order, federal appellate courts
are divided on the issue in cases where the prosecution intentionally obtained, without any
legitimate justification, confidential attorney-client information.25 As discussed below, the Tenth
Circuit has found a per se violation of the Sixth Amendment once the defendant demonstrates
that the prosecution improperly intruded into the attorney-client relationship.26
B.
Shillinger v. Haworth
In Shillinger, the prosecutor solicited information about the defendant’s pre-trial
preparation sessions from a sheriff’s deputy who was present in the courtroom and used that
information at trial to impeach the defendant and again in closing argument.27 The Tenth Circuit
held that the prosecutor’s intentional intrusion into the attorney-client relationship constitutes a
direct interference with the Sixth Amendment rights of a defendant; absent a countervailing state
22
See Weatherford v. Bursey, 429 U.S. 545, 554 n.4 (1979) (“One threat to the effective assistance of
counsel posed by government interception of attorney-client communications lies in the inhibition of free exchanges
between defendant and counsel because of the fear of being overheard.”).
23
See United States v. Morrison, 449 U.S. 361, 365 (1981); Weatherford, 429 U.S. at 554 n.4.
24
Cutillo v. Cinelli, 485 U.S. 1037 (1988) (White, J., dissenting from denial of certiorari); see Kaur v.
Maryland, 141 S. Ct. 5 (2020) (Sotomayor, J., statement respecting denial of certiorari).
25
See Cutillo, 485 U.S. at 1037–38 (White, J., dissenting) (noting conflicting approaches between the
Circuits in cases where the Sixth Amendment violation involves the transmission of confidential defense strategy
information); Doc. 730 at 9–10 (discussing split among the circuit courts of appeal and collecting cases).
26
Shillinger v. Haworth, 70 F.3d 1132, 1141–42 (10th Cir. 1995).
27
Id. at 1134–36.
6
interest, such an intrusion constitutes a per se violation of the Sixth Amendment.28 In other
words, when the government becomes privy to confidential communications because of its
unjustified, purposeful intrusion into the attorney-client relationship, “a prejudicial effect on the
reliability of the trial process must be presumed.”29 The Tenth Circuit clarified, however, that
this per se rule “in no way affects the analysis to be undertaken in cases in which the state has a
legitimate law enforcement purpose for its intrusion.”30 Such cases would require proof of
prejudice, or “‘a realistic possibility of injury to [the defendant] or benefit to the [government]’
in order to constitute a violation of a defendant’s Sixth Amendment rights.”31
The court further recognized that even where there has been an unjustified intrusion
resulting in a per se Sixth Amendment violation, the court must fashion a remedy “tailored to the
injury suffered.”32 After affirming the lower court’s grant of habeas relief, the Shillinger court
remanded for an evidentiary hearing to determine if the remedy imposed—a new trial—was
tailored to cure the taint of the intentional-intrusion violation or whether the government’s
conduct justified a different remedy, such as recusal of the original prosecution team or even
dismissal of the indictment.33
In the January 18 Order, this Court rejected the government’s broad arguments that the
consolidated petitioners are not entitled to rely upon Shillinger’s per se rule for several reasons.
First, the Court found that the ruling was not dicta. Because the Shillinger court expressly
28
Id. at 1142.
29
Id.
30
Id. (citing Weatherford v. Bursey, 429 U.S. 545, 557 (1977)).
31
Id. (alteration in original) (quoting Weatherford, 429 U.S. at 558).
32
Id. (quoting United States v. Morrison, 449 U.S. 361, 364 (1981)).
33
Id. at 1142–43.
7
concluded that this per se rule provides “the relevant standard” for assessing intentional-intrusion
claims, it is binding Tenth Circuit precedent.34
Second, the Court rejected the government’s argument that under the Supreme Court’s
decision in United States v. Gonzalez-Lopez,35 petitioners must nonetheless establish actual
prejudice to succeed on their Sixth Amendment claims.36 Because the Shillinger court expressly
acknowledged both Strickland’s general rule and its direct state-interference exception, this
Court explained that Gonzalez-Lopez does not alter that exception that a defendant need not
always show prejudice to prove an ineffective-assistance Sixth Amendment claim.37 And
because the Tenth Circuit reached the same conclusion in Shillinger, the decision is consistent
with the Supreme Court’s decision in Gonzalez-Lopez.38
Third, the Court addressed the government’s position questioning whether Shillinger is
good law in light of the Supreme Court’s view in Weatherford v. Bursey and United States v.
Morrison that at least “a realistic possibility” of prejudice must be demonstrated to substantiate a
Sixth Amendment violation of the kind alleged here, and a presumption falls short of this
demonstration.39 This Court explained that the Tenth Circuit analyzed and distinguished
Weatherford, noting that the Supreme Court “emphasized both the absence of purposefulness in
the prosecutor’s intrusion and the legitimate law enforcement interests at stake.”40 The
Shillinger court concluded that, unlike in Weatherford, “the intrusion here was not only
34
Doc. 730 at 13 (quoting Shillinger, 70 F.3d at 1139).
35
548 U.S. 140 (2006).
36
Doc. 730 at 13.
37
Id. at 15–16.
38
Id.
39
Id. at 16–17.
40
Shillinger v. Haworth, 70 F.3d 1132, 1138–39 (10th Cir. 1995).
8
intentional, but also lacked a legitimate law enforcement purpose.”41 The court also explained
that Morrison “left open the question of whether intentional and unjustified intrusions upon the
attorney-client relationship may violate the Sixth Amendment even absent proof of prejudice.”42
As previously discussed, Morrison never reached the prejudice question, “holding only that even
if the defendant’s Sixth Amendment rights were violated, dismissal of the indictment was an
inappropriate remedy in that case.”43 Under Shillinger, once petitioners demonstrate the
prosecution team intentionally and unjustifiably became privy to their protected attorney-client
communications, prejudice is presumed.44 In the Tenth Circuit, this presumption results in a per
se Sixth Amendment violation.45
III.
Motion for Reconsideration or Clarification
Prior to the evidentiary hearing, the government sought reconsideration of this Court’s
Order denying pre-hearing review of the call on which Hohn bases his Sixth Amendment claim
for evidence that might show waiver, the possibility of prejudice, or that the violation was
harmless.46 The government also sought clarification on the standards the Court would apply to
determining whether an attorney-client communication is protected by the Sixth Amendment.
The Court denied reconsideration of its decision not to permit the government pre-hearing access
to the contents of Hohn’s call to Campbell and declined to revisit the protected-communication
41
Id. at 1139.
42
Id. at 1140.
43
Id.
44
See id. at 1142; Doc. 730 at 10.
45
See Shillinger, 70 F.3d at 1140, 1142 (distinguishing between the First Circuit’s burden-shifting
approach, which treats the presumption of prejudice as rebuttable, and the Third Circuit’s per se rule, and ultimately
adopting the latter approach (first citing United States v. Mastroianni, 749 F.2d 900, 907 (1st Cir. 1984); and then
citing United States v. Levy, 577 F.2d 200, 210 (3d Cir. 1978))).
46
Doc. 940.
9
standards it has previously addressed and applies in this Order.47 The Court took under
advisement the remaining legal issues raised in the motion, to be addressed in this post-hearing
order.48
The government moves for reconsideration pursuant to D. Kan. Rule 7.3(b), which
governs motions to reconsider non-dispositive orders. Grounds for reconsideration under Rule
7.3(b) include: “(1) an intervening change in controlling law; (2) the availability of new
evidence; or (3) the need to correct clear error or prevent manifest injustice.”49 While a motion
to reconsider is available where the court has “misapprehended the facts, a party’s position, or
the controlling law,” such a motion does not permit a party to “revisit issues already addressed or
to advance arguments that could have been raised in prior briefing.”50 “A party’s failure to
present its strongest case in the first instance does not entitle it to a second chance in the form of
a motion to reconsider.”51 Whether to grant a motion for reconsideration is left to the court’s
discretion.52
A.
Possibility of Prejudice
The government argues that to fairly defend against allegations it violated the Sixth
Amendment, it needs to review the recordings for evidence that will show the prosecution team
neither used nor could have used “the substance of the recordings . . . to the government’s
47
Doc. 999.
48
Id.
49
D. Kan. Rule 7.3(b).
50
Coffeyville Res. Ref. & Mktg., LLC v. Liberty Surplus Ins. Corp., 748 F. Supp. 2d 1261, 1264 (D. Kan.
2010) (citing Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)).
51
Turner v. Nat’l Council of State Bds. of Nursing, No. 11-2059-KHV, 2013 WL 139750, at *2 (D. Kan.
Jan. 10, 2013) (citing Cline v. S. Star Cent. Gas Pipeline, Inc., 370 F. Supp. 2d 1130, 1132 (D. Kan. 2005)).
52
Coffeyville Res. Ref. & Mktg., LLC, 748 F. Supp. 2d at 1264 (citing In re Motor Fuel Temp. Sales Pracs.
Litig., 707 F. Supp. 2d 1145, 1166 (D. Kan. 2010)).
10
advantage or to the petitioner’s disadvantage.”53 The government acknowledges that under
certain circumstances, Shillinger requires the court to presume prejudice in determining whether
there was a Sixth Amendment violation. It argues, however, that Hohn cannot rely on this
presumption unless he first proves that there is a realistic possibility that such prejudice
occurred—specifically that the government “could have” used the substance of his attorneyclient call to undermine the fairness of the trial proceedings—and therefore it needs to review the
call for evidence that might prove no such possibility exists. As this Court previously discussed,
the government’s argument requiring an individual showing of a realistic possibility of prejudice
as a requisite for a presumption of prejudice cannot be squared with Shillinger’s language or
rationale and would effectively read out the per se rule altogether.54 Accordingly, the Court
concludes that the government cannot defend against Hohn’s per se Shillinger claim by proving
no such possibility existed and denies reconsideration on this ground.
B.
Harmless Error
The Court first had occasion to address the government’s harmless-error argument prior
to the August 9 and 10 evidentiary hearing, where the government argued that it needed to
review the call on which Hohn based his Sixth Amendment claim for evidence that might prove
the alleged violation was harmless. The Court agreed with Hohn that under Shillinger,
intentional-intrusion violations are structural errors that are not subject to harmless-error
analysis.55 The government argues that this Court’s legal conclusion that Hohn’s intentionalintrusion violation claim is not subject to harmless-error analysis is clearly erroneous.
53
Doc. 891 at 4.
54
See Doc. 588 at 27–28 (rejecting government’s suggested “adversarial value” element as effectively
reading out the presumption of prejudice under Shillinger).
55
Doc. 940 at 13–15.
11
It is well-established that on habeas review, the court applies the standard in Brecht v.
Abrahamson to determine whether constitutional error warrants relief from the challenged
conviction or sentence.56 Under this standard, constitutional error may be disregarded unless
found to have “had substantial and injurious effect or influence in determining the jury’s
verdict,” with the burden on the petitioner to establish that the error “resulted in actual
prejudice.”57 “If a reviewing court is in ‘grave doubt’ as to the harmlessness of an error, the
habeas petitioner must win.”58 The Tenth Circuit has held that Brecht’s harmless-error analysis
is applicable in § 2255 cases.59 Fed. R. Crim. P. 52(a) also requires that a defendant show
prejudice in order to obtain relief in a § 2255 action.60
“Notwithstanding Brecht, constitutional errors that rise to the level of ‘structural error’
. . . require automatic reversal” of the conviction or the grant of the writ of habeas corpus.61 This
Court found that in crafting a per se violation, the Tenth Circuit language in Shillinger mirrors
that used by the Supreme Court to identify structural error.62 Because structural error can arise
56
507 U.S. 619 (1993) (applying harmless-error review to 28 U.S.C. § 2254 movants).
57
Id. at 637–38 (internal quotation marks omitted).
58
Crease v. McKune, 189 F.3d 1188, 1193 (10th Cir. 1999) (quoting O’Neal v. McAninch, 513 U.S. 432,
436 (1995)).
59
See United States v. Dago, 441 F.3d 1238, 1246 (10th Cir. 2006) (holding “the logic behind Brecht . . . is
applicable in § 2255 cases” and applying harmless-error review to § 2255 claim); United States v. Driscoll, 892 F.3d
1127, 1132 (10th Cir. 2018) (same).
60
See United States v. Spaulding, 802 F.3d 1110, 1119 n.9 (10th Cir. 2015) (explaining that Rule 52(a)
“obligates a federal court to disregard errors that do ‘not affect substantial rights’”).
61
Underwood v. Royal, 894 F.3d 1154, 1176 (10th Cir. 2018); see United States v. Cronic, 466 U.S. 648,
659 & n.25 (1984); Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006) (noting that the Brecht test does not
apply if the error is a structural defect in the trial that defies harmless-error analysis). In addition, the Supreme
Court in Brecht suggested another potential type of error in the unusual case with egregious trial error coupled with
a pattern of prosecutorial misconduct. See Brecht, 507 U.S. at 638 n.9. Hohn does not invoke this so-called
Footnote 9 error here.
62
Doc. 940 at 13.
12
in different ways in the context of the denial of the Sixth Amendment right to counsel, the Court
pauses to clarify the framework of its analysis.
The Supreme Court has “adopted the general rule that a constitutional error does not
automatically require reversal of a conviction.”63 The Court recognized, however, that “some
constitutional errors require reversal without regard to the evidence in a particular case,” because
some errors “necessarily render a trial unfair.”64 Such error is structural, meaning it is one that
“‘affect[s] the framework within which the trial proceeds’ rather than being ‘simply an error in
the trial process itself.’”65 “[S]tructural defects in the constitution of the trial mechanism . . .
defy analysis by ‘harmless-error’ standards.”66 “A defining feature of structural error is that the
resulting unfairness or prejudice is necessarily unquantifiable and indeterminate, such that any
inquiry into its effect on the outcome of the case would be purely speculative.”67 The Supreme
Court has identified a very limited set of circumstances that constitute structural error.68
63
Arizona v. Fulminante, 499 U.S. 279, 306 (1991).
64
Rose v. Clark, 478 U.S. 570, 577 (1986) (citing Champman v. California, 386 U.S. 18, 23 n.8 (1967);
Payne v. Arkansas, 356 U.S. 560 (1958) (introduction of coerced confession); Gideon v. Wainwright, 372 U.S. 335
(1963) (complete denial of right to counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (biased judge).
65
Weaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017) (alteration in original) (quoting Fulminante, 499
U.S. at 310).
66
Fulminante, 499 U.S. at 309.
67
United States v. Solon, 596 F.3d 1206, 1211 (10th Cir. 2010) (quoting United States v. Gonzalez-Huerta,
403 F.3d 727, 733 (10th Cir. 2005)); see also United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006) (“[A]s
we have done in the past, we rest our conclusion of structural error upon the difficulty of assessing the effect of the
error.”).
68
See Weaver, 137 S. Ct. at 1908 (providing “three broad rationales” for classifying an error as structural:
where the right at issue does not protect defendant from erroneous conviction but protects some other interest, where
the effects of the error are simply too hard to measure, and where the error always results in fundamental unfairness;
any one of these rationales or a combination thereof may explain why an error has been deemed structural); see, e.g.,
McCoy v. Louisiana, 138 S. Ct. 1500, 1511 (2018) (attorney’s admission of the defendant’s guilt over the
defendant’s objection); United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (deprivation of the right to
counsel of choice); Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (erroneous reasonable-doubt instruction);
Vasquez v. Hillery, 474 U.S. 254, 263 (1986) (exclusion of grand jurors of the defendant’s race); Waller v. Georgia,
467 U.S. 39, 49 n.9 (1984) (deprivation of the right to a public trial); McKaskle v. Wiggins, 465 U.S. 168, 177 n.8
(1984) (deprivation of the right to self-representation); Gideon v. Wainright, 372 U.S. 335, 343–45 (1963)
(deprivation of the right to counsel); Tumey v. Ohio, 273 U.S. 510, 523 (1927) (lack of an impartial judge).
13
Relevant here, the Supreme Court has recognized that certain denials of the Sixth
Amendment right to effective assistance of counsel “make the adversary process itself
presumptively unreliable.”69 These per se Sixth Amendment violations are not subject to
harmless-error analysis—prejudice is presumed.70 The Supreme Court has relieved defendants
of the obligation to make an affirmative showing of prejudice, and presumed such effect in a
very narrow set of cases, including: the actual or constructive denial of counsel at a critical stage
of trial, state interference with counsel’s assistance, or counsel that labors under actual conflicts
of interest.71 Prejudice can be presumed with respect to these “circumstances that are so likely to
prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”72
The Court explained that defendants are spared of such individual inquiry into prejudice only in
“circumstances of that magnitude.”73 These types of presumptively prejudicial Sixth
Amendment violations are part of the so-called Cronic-error variety of Supreme Court
jurisprudence.74 When this type of error happens, the issue is not whether the error is harmless;
instead, the court irrebutably presumes that it was prejudicial.75
The Tenth Circuit adopted this reasoning in Shillinger to hold that prejudice is presumed
for the government’s intentional and unjustified intrusion into the defendant’s attorney-client
relationship. In fashioning a rule that “best accounts for the competing interests at stake,” the
69
United States v. Cronic, 466 U.S. 648, 659 (1984).
70
Id.
71
Id. at 658–60; Strickland v. Washington, 466 U.S 668, 692 (1984).
72
Cronic, 466 U.S. at 658 & n.24 (collecting cases); see Strickland, 466 U.S. at 692; Mickens v. Taylor,
535 U.S. 162, 175 (2002).
73
Cronic, 466 U.S. at 659 n.26.
74
Id. at 658. To be clear, neither Hohn nor consolidated petitioners allege that they were actually or
constructively denied the right to counsel at a critical stage of trial. Instead, they allege state interference with
counsel’s assistance.
75
Id. at 659 & n.25; see also Bell v. Cone, 535 U.S. 685, 695–96 (2002).
14
Tenth Circuit recognized and drew upon this category of cases where Sixth Amendment
prejudice is presumed,76 specifically cases where direct state interference with the right to
effective counsel has been held to violate the defendant’s Sixth Amendment right per se.77 The
court cited the rationale behind the use of a per se rule in such cases: “[t]hese state-created
procedures impair the accused’s enjoyment of the Sixth Amendment guarantee by disabling his
counsel from fully assisting and representing him.”78 The quoted passage goes on to state,
“[b]ecause these impediments constitute direct state interference with the exercise of a
fundamental right, and because they are susceptible to easy correction by prophylactic rules, a
categorical approach is appropriate.”79 The court proceeded to hold that a prosecutor’s intrusion
into the attorney-client relationship likewise constitutes a “direct interference” with the
fundamental Sixth Amendment rights of a defendant to a fair adversary proceeding.80 Absent a
countervailing government interest, such an intentional intrusion constitutes a per se violation of
the Sixth Amendment, where “a prejudicial effect on the reliability of the trial process must be
presumed.”81 In adopting this per se rule, the court stressed that “no other standard can
adequately deter this sort of misconduct,” and that “[p]rejudice in these circumstances is so
likely that case-by-case inquiry into prejudice is not worth the cost.”82
76
Shillinger v. Haworth, 70 F.3d 1132, 1141 (10th Cir. 1995) (first citing Strickland, 466 U.S. at 692; then
citing Perry v. Leeke, 488 U.S. 272, 279–80 (1989); and then citing Cronic, 466 U.S. at 658 & n.24).
77
Id. (first citing Ferguson v. Georgia, 365 U.S. 579 (1961) (prohibiting direct examination of the
defendant by his counsel); then citing Brooks v. Tennessee, 406 U.S. 605 (1972) (requiring those defendants who
choose to testify to do so before any other defense witnesses); then citing Herring v. New York, 422 U.S. 853 (1975)
(refusing to allow defense counsel closing argument in a bench trial); and then citing Geders v. United States, 425
U.S. 80 (1976) (prohibiting any consultation between a defendant and his attorney during an overnight recess
separating the direct-examination and the cross-examination of the defendant)).
78
Id. (quoting United States v. Decoster, 624 F.2d 196, 201 (D.C. Cir. 1979)).
79
Id. (quoting Decoster, 624 F.2d at 201).
80
Id. at 1142.
81
Id.
82
Id. (quoting Strickland v. Washington, 466 U.S. 668, 692 (1984)).
15
The court further held that this per se rule subsumes the harmless-error analysis because
the rule “recognizes that such intentional and groundless intrusions are never harmless because
they ‘necessarily render a trial fundamentally unfair.’”83 Accordingly, Shillinger instructs that
the magnitude of these circumstances justifies a presumption of prejudice that precludes
application of the harmless-error standard and requires automatic relief.84 In other words, the
Tenth Circuit has recognized that a Shillinger violation constitutes a narrow variety of
presumptively prejudicial constitutional error identified by Strickland and its progeny.
Shillinger has been extant law in the Tenth Circuit for over twenty-five years. Yet the
government continues to argue that even if the government intentionally and unjustifiably
intruded into Hohn’s attorney-client relationship, the error was harmless. The government
maintains that Shillinger was wrong in concluding that harmless-error analysis does not apply to
Sixth Amendment intentional-intrusion violations because it conflicts with Weatherford and
Morrison. As this Court has previously discussed, however, the Tenth Circuit decided Shillinger
after the Supreme Court decided both of these cases and the court acknowledged and accounted
for both decisions.85 Further, neither Weatherford nor Morrison involved a claim that the
government intentionally and unjustifiably became privy to protected attorney-client
communications.86 Thus, neither decision addresses whether the harmless-error rule applies to a
violation arising from an unjustified intentional-intrusion. Despite the government’s ongoing
objection that Shillinger is not good law, this Court is bound to follow Tenth Circuit precedent.87
83
Id. (quoting Rose v. Clark, 478 U.S. 570, 577 (1986)).
84
Id.
85
Doc. 940 at 14–15 (citing Shillinger v. Haworth, 70 F.3d 1132, 1138–40 (10th Cir. 1995)).
86
See Weatherford v. Bursey, 429 U.S. 545, 555–58 (1977); United States v. Morrison, 449 U.S. 361, 363
(1981).
87
See United States v. Torres-Duenes, 461 F.3d 1178, 1183 (10th Cir. 2006) (noting that once a panel of
the Tenth Circuit resolves an issue, the panel’s holding remains controlling law in the absence of (1) en banc review
16
Accordingly, the government’s motion to reconsider its pre-hearing order is denied on these
grounds, as clarified.
IV.
Findings of Fact
The government filed a Motion in Limine before the evidentiary hearing seeking to
exclude certain evidence, witnesses, and testimony designations.88 Because this was a bench
hearing, and it is familiar with the record in Black and the parties’ filings and submissions in the
consolidated proceedings, the Court provisionally admitted all materials designated by the
parties.89 The parties’ objections under Fed. R. Evid. 401, 402, 403, and 404 were preserved at
the evidentiary hearing. In making its findings of fact, the Court has disregarded any evidence it
deems irrelevant and has assigned the appropriate weight to each piece of relevant evidence
admitted herein.
Warnings About Calls From CCA
When Hohn arrived at CCA on January 27, 2012, he signed several documents
acknowledging that telephone calls he made from CCA may be monitored and recorded and
advising him that calls with his attorney were subject to being monitored unless he followed the
privatization procedure in place to make an unmonitored call. One document was the CCA
Inmate Handbook, which included a section entitled “Inmate Telephone System.” It advised
or (2) an intervening Supreme Court decision). The government argues that the Tenth Circuit applied harmlesserror analysis in United States v. Singleton, 52 F. App’x 456 (10th Cir. 2002). In that unpublished decision, the
court rejected a Sixth Amendment intentional-intrusion claim in defendant’s § 2255 proceeding, even though the
prosecution had obtained attorney-client communications, because the prosecutors had not seen the privileged
communications and had implemented a taint team. In denying the § 2255 motion, the court expressly relied on
Shillinger, stating nothing about that case being bad law. Id. at 459–60.
88
Doc. 983.
89
Doc. 999.
17
detainees that “[t]elephone conversations may be monitored and are recorded for safety
reasons.”90 The Inmate Handbook further states:
Your attorney may request of our facility that calls to their office
not be recorded to ensure Attorney/Client privilege. They may
request this by way of sending CCA/LDC a fax on their office
letterhead. This request must include contact information and
signature. They may fax it to (913) 727-2231. IT IS YOUR
RESPONSIBILITY TO ENSURE THAT YOUR ATTORNEY IS
AWARE OF THIS PROCEDURE. THEIR TELEPHONE CALLS
ARE SUBJECT TO BEING RECORDED IF THEY DO NOT
REQUEST THEY BE RESTRICTED.91
Hohn testified that he read the Inmate Handbook in its entirety within the first week of
arriving at CCA in connection with his attempts to make a phone call.92 Hohn admits that he did
not follow the procedure in the Inmate Handbook for requesting an unmonitored attorney-client
call, that he understood that he could make such a request, that it was up to him to do so, and that
he did not follow the protocol.93
Hohn also received and signed the Monitoring of Inmate/Detainee Telephone Calls form,
which advises detainees:
[CCA] reserves the authority to monitor (this includes recording)
conversations on any telephone located within its institutions, said
monitoring to be done to preserve the security and orderly
management of the institution and to protect the public. An
inmate’s use of institutional telephones constitutes a consent to this
monitoring. A properly placed phone call to an attorney is not
monitored. You must contact you[r] unit team to request an
unmonitored attorney call.94
90
Ex. 813 at 9.
91
Id.
92
Hohn, 19-2082-JAR-JPO, Doc. 60 at 245. The transcripts of the August 9 and 10, 2021 evidentiary
hearing consist of two volumes found at Docs. 59 and 60 in Hohn, 19-2082-JAR-JPO, and collectively consist of
397 sequentially paginated pages. For convenience, the Court cites to these documents as Tr. Evid. Hrg., followed
by a reference to the page number in the transcript that appears in the upper right corner of each page.
93
Tr. Evid. Hrg. at 246–47.
94
Ex. 808 at 7.
18
Hohn understood that by signing this form, he was consenting to the monitoring and/or
recording of his attorney-client calls unless he took certain steps.95 He acknowledges that he did
not take steps to ensure the call to Campbell would not be monitored or recorded before he
placed the call.96
Signs placed on and near telephones in the room where Hohn made the call to Campbell
stated, “ALL CALLS MAY BE RECORDED/MONITORED” and/or “CALLS ARE SUBJECT
TO MONITORING AND RECORDING.”97 Hohn believed the written warnings and signs
placed on or near the telephones at CCA applied to attorney-client calls.98
At the beginning of the April 23, 2012 call, a recorded preamble states: “This is a call
from an inmate at CCA-Leavenworth Detention Center. This call is subject to recording and
monitoring.”99 Hohn believed that the recorded preamble applied to his attorney-client calls.100
CCA did not inform the detainees that monitored or recorded calls might be provided to
others, including law enforcement or prosecutors for use in criminal investigations and
prosecutions, or to attorneys for use in criminal or civil litigation.101 When CCA provided
recorded calls to outside parties, it did not notify the detainees or their attorneys.102
Hohn confirmed during his testimony at the evidentiary hearing that he understood that
his attorney-client calls were subject to monitoring for safety and security reasons, including
95
Ex. 812 ¶ 12.
96
Id. ¶ 14.
97
Doc. 1004 ¶ 31.
98
Doc. 812 ¶ 16.
99
Doc. 758 at 10.
100
Doc. 812 ¶ 15.
101
Doc. 1004 ¶ 8.
102
Id.
19
recording, by CCA and Securus Technologies, Inc. (“Securus”), the company that provided the
telephone-recording equipment to CCA.103 Hohn also understood, based on the information
provided to him by CCA, that he had to contact his unit team manager to request an unmonitored
call with counsel and conceded that he never followed the procedure to make an unmonitored
call.104 Hohn further testified that he believed that his calls to counsel would remain confidential
from the prosecution team.105 No one at CCA informed Hohn that he had a Sixth Amendment
right to speak privately with counsel, that if he waived that right, CCA could provide his
recorded attorney-calls to the USAO, or that the USAO could use those calls against him in
court.106 Hohn did not understand that by signing the Inmate Handbook and Monitoring form, he
was consenting to CCA providing his recorded attorney-client calls to the USAO unless he took
certain steps, nor did he believe that the USAO or its agents could obtain recordings of his
attorney-client calls from CCA.107
The April 23, 2012 call was the first time Campbell spoke with Hohn after his
appointment. Campbell testified that prior to 2016, he did not know about the phone
privatization process at CCA.108 He did not know that the call from Hohn was subject to
monitoring or recording except for reasons related to institutional security, nor did he believe
that the call would be distributed or made available to the USAO or its agents.109 Campbell
testified that when the defense bar learned during the Black case and investigation that the
103
Tr. Evid. Hrg. at 228, 248.
104
Id. at 242, 247.
105
Id. at 273–75.
106
Doc. 665-1.
107
Id.
108
Tr. Evid. Hrg. at 284.
109
Ex. 817 ¶¶ 8, 9.
20
USAO had obtained and listened to attorney-client phone calls, he was shocked and admonished
his clients to be very cautious about placing phone calls from CCA.110 Prior to 2016, Campbell
never saw anything posted at CCA indicating the need for attorneys to privatize their numbers,
nor did anyone from CCA inform him about the need to do so.111 Campbell stated that he never
contacted CCA to find out how their phone system worked and that Hohn did not tell him that
CCA had a procedure for privatizing attorney-client calls.112
Government’s Requests for Hohn’s CCA Calls
In 2012 through 2014, District of Kansas USAO attorneys and law enforcement agents
could obtain recorded CCA calls without a written request, written receipt, or other tracking
information.113 During that time period, the District of Kansas USAO did not have any internal
practice or policy, or standard procedure for issuing, tracking, maintaining, or purging recorded
CCA calls.114
The government, via AUSA Morehead or one of her agents, obtained three sets of Hohn’s
phone calls from CCA during the course of his prosecution. The prosecution team made no
effort to exclude recordings of Hohn’s attorney-client calls from any of these requests, including
using a filter team or any other procedure to identify and protect attorney-client communications
among the recorded calls produced by CCA.115 None of the recordings provided by CCA to the
government included calls from Hohn to his then-attorney, Burdick.116
110
Tr. Evid. Hrg. at 284–86.
111
Id. at 285.
112
Id. at 309–10.
113
Doc. 1004 ¶ 10.
114
Id. ¶¶ 11, 12.
115
Id. ¶¶ 5, 6.
116
Id. ¶ 4.
21
On February 21, 2012, pursuant to a DEA administrative subpoena, Deputy Williams
obtained Hohn’s calls from CCA for the time period between January 25, 2012 to February 21,
2012.117 As detailed in this Court’s order denying Hohn’s request for leave to add a Brady
claim, this subpoena was issued as part of an investigation into a possible threat to a government
witness and also requested CCA calls and visitor information for several of Hohn’s codefendants.118 Williams emailed AUSA Morehead on March 8, 2012, to summarize eight hours
of calls he had listened to and dispel any threats were coming from Hohn.119 Williams testified
that he prepared a report regarding the February 2012 calls, which he gave to Morehead.120
The second subpoena was issued after Hohn’s co-defendant Michael Quick told Deputy
Williams about the disappearance and death of Gregory Price, including details about Hohn’s
role in Price’s disappearance.121 On April 24, 2012, at Williams’s request, TFO Farkes obtained
CCA calls for Hohn and two co-defendants for the time period of April 19, 2012 to April 23,
2012, pursuant to a DEA administrative subpoena.122 TFO Farkes served this subpoena on
behalf of the prosecution team.123 The request encompassed the “date, time, and duration of each
call,” as well as the recorded calls themselves.124 The call detail records show that Hohn made
four calls during that time period, all on April 23, 2012.125 Three of the calls were to FPD toll-
117
Exs. 832, 833.
118
Doc. 1022 at 3–4.
119
Ex. 8.
120
Tr. Evid. Hrg. at 380; Ex. 835.
121
Ex. 1055 ¶¶ 18–31.
122
Exs. 846, 853.
123
Farkes Dep. at 9, 16.
124
Ex. 846.
125
Ex. 823a.
22
free telephone numbers, and one call was to Campbell.126 Only the call to Campbell was
recorded; the calls to the FPD were not recorded because the toll-free numbers had been
privatized.127
On April 24, 2012, TFO Farkes collected the subpoenaed materials, including a CD and
supporting documentation, from CCA.128 This CD, marked as N-8, contains a single call—the
call Hohn made to Campbell the previous day.129 On or about April 25, 2012, Farkes made at
least one copy of N-8 for Deputy Williams, Deputy Denton, or both.130 In July 2021, Farkes
turned over the agency’s copy of the CD to the USAO after the government inquired about the
recordings.131 Farkes testified that he has never listened to the recordings he obtained pursuant
to that subpoena.132 He further testified that he does not know if the DEA or Johnson County has
any written policies about how to handle jail calls, that he never received any training about how
to handle such evidence, and that if he ever came across an attorney-client call, he would turn it
off and flag that number.133
Deputy Williams testified that he requested the April 2012 calls to confirm or provide
additional information regarding the Price homicide investigation, but that none of these calls
furthered the investigation.134 Williams explained that, even though Quick was cooperating,
126
Id.
127
Doc. 1007 ¶ 2. Hohn called the FPD toll-free numbers multiple times before April 23, 2012; none of
those calls were recorded because they were treated as privatized. Id.
128
Ex. 15.
129
Ex. 91.
130
Id.
131
Farkes Dep. at 19.
132
Id. at 42.
133
Id. at 39–42.
134
Tr. Evid. Hrg. at 370.
23
there was a chance he was holding back everything he knew, and Williams hoped the calls
obtained between April 19 and 23, 2021, included conversations between Quick and others he
felt more comfortable talking with about what occurred the night Price died.135
On May 24, 2013, during a break in Hohn’s trial, AUSA Morehead issued a subpoena for
his CCA calls, as well as co-defendant Redifer’s, from May 13 to May 28, 2013.136 Morehead
was concerned that Hohn had threatened or intimidated Casey Cross, a cooperating government
witness whose testimony changed at trial.137 The calls did not reveal any threats by Hohn or
Redifer.138 Deputy Denton sent Morehead an email on May 29, 2013, summarizing the content
of these calls, several of which he referred to as not important.139
Deputy Williams testified that he “probably” did not listen to every CCA call obtained in
his investigation, but split the task with Deputy Denton.140 He explained that there may have
been calls they missed, but that he “believe[d] we tried to listen to all of them because that was
the point of having them.”141 Members of the prosecution team reviewed Hohn’s CCA calls,
discussed the content of those calls, and circulated copies of the calls themselves.142 Williams
testified, however, that during his investigation, he did not hear any calls between Hohn and a
lawyer or anyone who sounded like a lawyer, nor did anyone else working on the case ever tell
135
Id. at 371–72.
136
Ex. 874.
137
Tr. Evid. Hrg. at 205–06.
138
Id. at 219.
139
Ex. 8 at 6.
140
Tr. Evid. Hrg.at 371.
141
Id.
142
See Ex. 807 ¶ 8 (Morehead affidavit discussing calls placed by Hohn and his co-defendants, indicating
these calls were obtained “[o]n or about April 24, 2012” in connection with a homicide investigation and that agents
reviewed these calls); Ex. 806 ¶ 8 (Morehead affidavit stating “I know calls were reviewed by agents”); Ex. 6 at 1
(February 13, 2019 email from Morehead to AUSAs James Brown and Carrie Capwell stating, “The agents obtained
and reviewed calls obtained, and at no time ever reported coming across an attorney call to me.”).
24
him that they heard an attorney-client call.143 Williams further testified that he did not request
Hohn’s calls for the purpose of listening to conversations between Hohn and his attorney, and
when he asked TFO Farkes to obtain Hohn’s CCA calls, he did not think it was very likely that
those recordings would include calls to Hohn’s attorney.144
AUSA Morehead testified that she did not know about the “second batch” of calls
obtained by Deputy Williams in April 2012.145 She testified that the agents working on Hohn’s
case never told her that they heard an attorney-client CCA call from Hohn, that she never
received any written report regarding the CCA calls that indicated Hohn was speaking to an
attorney, or that the agents thought attorney calls might be mixed in with the CDs that they
obtained.146 Morehead testified that she did not direct Williams or TFO Farkes to obtain Hohn’s
CCA calls in February or April 2012.
AUSA Morehead’s May 29, 2020 affidavit also discusses these sets of calls placed by
Hohn and his co-defendants.147 Morehead specifically states that the agents prepared reports
about the obtaining and review of the calls obtained on April 24, 2012, which were provided in
discovery.148 To date, no report on N-8 has been produced.
April 23, 2012 Call
The FPD reviewed the recording of Hohn speaking by telephone with Campbell on April
23, 2012.149 Pursuant to the Court’s Order, Hohn provided a privilege log detailing the claimed
143
Tr. Evid. Hrg. at 372.
144
Id. at 373–73.
145
Id. at 192.
146
Id. at 220–21.
147
Ex. 807 ¶ 8.
148
Id.; Ex. 852.
149
Doc. 205-2 at 68.
25
protected communication, verifying that during this phone conversation, Hohn discussed matters
“relat[ing] to legal advice or strategy” with Campbell.150 Hohn also provided a sworn
declaration from Campbell, stating that he reviewed the recording of the call listed on the
privilege log placed on April 23, 2012, and confirming that: (1) after the call was transferred by
the receptionist, he and Hohn were the only two individuals on the line; (2) the matters discussed
related to legal advice or strategy sought by Hohn, as detailed in the log and the declaration; (3)
he had no knowledge nor did he believe that the call was subject to monitoring or recording as
they were attorney-client protected, that he did not consent to such, and that he did not inform
Hohn before the call was made that it was subject to such monitoring and recording in a manner
that would be dispensed to prosecutors; and (4) until later litigation and information revealed that
phone calls were being monitored and turned over to the USAO or its agents, he had no reason to
know or believe that his legal calls were being monitored or released to the government and,
after it became known, he privatized his numbers with CCA.151
After the government objected to Hohn’s privilege log, the Court reviewed the audio
recording in camera.152 As set out in the privilege log, the Court confirmed that the content of
the six-minute call contains discussion relating to legal advice or strategy, including: Hohn’s
desire to have a trial in the matter, his criminal history, what he believed the evidence against
him to be and problems with that evidence, concern about his truck being impounded, and the
general way that they would proceed to meet and discuss the case going forward.153 The Court
also confirmed that there is no discussion of the recorded preamble between Hohn and Campbell
150
Id.
151
Doc. 703-1.
152
Docs. 355, 588.
153
Doc. 205-2 at 68. Williams testified the Hohn used his truck to transport Price’s body, which had been
stuffed into a refrigerator. Tr. Evid. Hrg. at 359.
26
in the call listed in the privilege log, nor any statements acknowledging the warning or evincing
awareness that the call was being recorded during their conversation.
Post-Black Discovery
Acting United States Attorney Duston Slinkard testified about his role in these
proceedings, first as Criminal Chief, then First Assistant United States Attorney.154 Slinkard has
been involved in the Black investigation and litigation since August 2016. Slinkard described
the process the USAO undertook to produce recordings of CCA phone calls in its possession
after the FPD filed a motion for discovery in the Black case.155 In September 2018, Slinkard
directed a USAO paralegal to identify, collect, and transmit any jail calls that were in the
government’s possession.156 This plan involved asking prosecutors to identify any jail calls in
their individual cases, examine physical files in the government’s possession, examine discovery
storage spaces on the USAO network, and for any cases identified on the list of potential calls
provided by the FPD but had not been located in the USAO office, to reach out to agencies that
might have been involved.157
After the parties reached “loggerheads” about the process in December 2019, this Court
entered an order memorializing the parties’ agreement on surrendering the recordings the
government was able to identify and collect as well as derivative evidence, along with a written
log of the recorded calls.158 The FPD would get copies of whatever recordings were surrendered
to the Court. The order directed the government to rely on disinterested entities to do the
154
Tr. Evid. Hrg. at 30.
155
Id. at 37–40.
156
Ex. 116.
157
Id.
158
Black, Doc. 705.
27
search.159 Acting United States Attorney Slinkard confirmed that the purpose of the agreement
was to identify and confirm which calls were in the government’s possession, and remove the
recordings from the government’s possession so that prosecutors and agents could no longer
have access to the calls.160 But Slinkard conceded that this is not what happened in these
consolidated proceedings. Individual prosecutors, including AUSA Morehead, were permitted to
search their own files and if recordings were discovered, no further inquiry was made of any
agencies involved in the case.161
While the government initially agreed to produce any relevant evidence that the USAO
discovered, it later asked the Court to issue a protective order excusing it from attempting to
discover such evidence by searching the USAO repositories for additional electronically stored
information.162 After the Court denied the protective order, the government filed a Notice that
the Court’s orders were contrary to law and refused to comply with them.163 Despite this refusal
to dedicate additional time or resources to the task of searching for and producing evidence to
Hohn, the USAO later engaged in similar searches for the purpose of defending against his Sixth
Amendment claim.164 These searches yielded two discoveries.
159
Tr. Evid. Hrg. at 43.
160
Id. at 44–45.
161
Id. at 75–76.
162
Ex. 79.
163
Ex. 82.
164
See Ex. 107 at 1–3.
28
First, it was discovered that the DEA remained in possession of Hohn’s attorney-client
call until at least July 2, 2021.165 The DEA relinquished the call to the USAO without a court
order, and thus remained accessible to the original prosecution team until at least July 2, 2021.166
Second, AUSA Morehead located call CDs in defendant Jay Giannukos’s physical file in an
unrelated criminal case, then provided those calls to the USAO paralegal, and the calls were
disgorged to the Court on January 7, 2019.167 But just as Morehead harbored multiple copies of
Hohn’s recorded calls, she harbored multiple copies of Giannukos’s calls as well.168 It does not
appear Morehead revealed these additional copies to USAO management until eighteen months
later when the USAO delivered these calls to the Court on July 14, 2021.169 As Acting United
States Attorney Slinkard acknowledged, these circumstances cannot be reconciled with the letter
or the spirit of this Court’s orders in Black.170 And as far as the Court is aware, the USAO has
not taken steps to rectify this situation to determine whether agents remain in possession of any
call recordings.171
Prior to the government’s Notice that it would not comply with the Court’s discovery
orders, it conducted an examination of the computers used by prosecutors in this matter.
Forensic examination of twenty laptop and desktop hard drives that were previously assigned to
the prosecutors in the petitioners’ criminal cases revealed that the audio file names
165
Id.; Ex. 108.
166
Ex. 107; Tr. Evid. Hrg. at 75–76; Farkes Dep. at 12–13.
167
Exs. 2, 96.
168
Exs. 109, 110.
169
Ex. 109.
170
Tr. Evid. Hrg. at 43–45, 76.
171
Black, Doc. 856 (FPD Motion to Compel government to disgorge any recorded attorney-client
communications that remain in USAO’s custody or control, including those in possession of law enforcement
agencies).
29
corresponding to the jail calls identified on the petitioners’ privilege logs were not found on any
of the computers, except for the hard drives assigned to former Special Assistant United States
Attorney Erin Tomasic.172 The report prepared by Department of Justice’s Computer Crime and
Intellectual Property Section (“CCIPS”) Cybercrime Lab lists ten file names that were found on
Tomasic’s computer, three of which it described as “Exact Matches” and seven of which it
described as “Partial Matches.”173 The hard drives were in use at the USAO from approximately
2012 through late August 2016.174 It is undisputed that the facts and findings described in the
Evidence Processing Report prepared by the CCIPS Cybercrime Lab are accurate.175 The
processing, examination, and searching of the twenty-two hard drives included the spaces on the
hard drives where visible files and deleted files could be found.176
V.
Conclusions of Law
To obtain collateral relief on a constitutional claim, a defendant must prove the alleged
violation by a preponderance of the evidence.177 Hohn makes clear that he cannot demonstrate a
realistic possibility of prejudice, and instead relies on the presumption of prejudice in Shillinger.
That case holds that a per se Sixth Amendment violation occurs when: (1) there is a protected
attorney-client communication; (2) the government purposefully intruded into the attorney-client
relationship; (3) the government becomes “privy to” the attorney-client communication because
of its intrusion; and (4) the intrusion was not justified by any legitimate law enforcement
172
Doc. 1004 ¶¶ 15–21.
173
Id. ¶¶ 20–21.
174
Id. ¶ 17.
175
Id. ¶ 14.
176
Id. ¶ 18.
177
United States v. Washington, 890 F.3d 891, 895 (10th Cir. 2018).
30
interest.178 Once those elements are established, prejudice is presumed, resulting in a per se
Sixth Amendment violation.179
A.
Protected Attorney-Client Communications
As an initial matter, the Court briefly addresses the government’s argument that Hohn
cannot maintain his Sixth Amendment claim while refusing to produce the call upon which his
claim is based. This Court has previously addressed whether the government should be
permitted access to and review the content of the audio recordings that serve as the basis of
petitioners’ claims on the grounds that petitioners either impliedly or expressly waived the
attorney-client privilege. On June 4, 2020, this Court entered an order rejecting the
government’s argument that petitioners implicitly waived the attorney-client privilege over the
communications when they placed the communications at issue in bringing their habeas
petitions.180 On October 16, 2020, the Court reaffirmed its ruling on the government’s implied
waiver argument and, in light of the government’s blanket objections to petitioners’ privilege
logs, established a procedure for in camera review of the recordings.181 By then, the government
had expanded its argument that it was entitled to review the calls based on potential express
waiver of the attorney-client privilege based on pre- or post-call disclosure of the content of the
calls to non-attorneys.182 Instead of permitting discovery on this issue, however, the Court
directed petitioners and defense counsel to expand the record with affidavits addressing the
government’s waiver and protected-communication arguments.183
178
Black Order at 162 (citing Shillinger v. Haworth, 70 F.3d 1132, 1142 (10th Cir. 1995)).
179
Id.
180
Doc. 225 at 5–9.
181
Doc. 588 at 10–18, 59.
182
Id. at 40–43.
183
Id. at 58–59
31
The government continues to argue that Hohn cannot maintain his Sixth Amendment
claim if he refuses to produce the telephone call recording that forms the basis of that claim,
objecting to the secret nature of the contents of the recording—a recording that was obtained by
the prosecution team and harbored in its case files for years. But as this Court’s previous rulings
explain, this issue can be determined short of permitting the government to review the content of
the recordings, as such disclosure would needlessly perpetuate any potential Sixth Amendment
violation.184 The Court’s in camera review of Hohn’s call confirmed that the communication
involved legal advice or strategy. The content of that communication is not relevant to the next
step in the Court’s analysis—whether Hohn had a reasonable expectation of confidentiality in the
call or whether he waived the attorney-client privilege or his Sixth Amendment right to
confidential communications with counsel by disclosing the call on a recorded phone line. The
Court’s position throughout these proceedings has been that this initial review, coupled with
declarations and any subsequent testimony from petitioners and counsel, would suffice to protect
both petitioners’ Sixth Amendment rights and the government’s need to defend itself. As
discussed infra, this approach has borne out in this case, where the Court concludes that based on
the record before it, Hohn has not satisfied the protected-communication element of his claim.
1.
Black Order
The Black Order detailed the government’s practice of obtaining attorney-client
communications and its view that these communications are not protected by the attorney-client
privilege or the Sixth Amendment.185 Prosecutors in the Kansas City office of the USAO
operated under the theory that “the law is clear that CCA’s preamble warning the call was being
184
This approach was both necessary and prudent, as the majority of petitioners’ Sixth Amendment claims
are subject to dismissal on procedural grounds. See Doc. 730.
185
Black Order at 101–06.
32
recorded made the call non-privileged.”186 Once the Black investigation turned adversarial, both
USAO management and rank alike took this litigation posture, consistent with the position
previously taken by most Kansas City prosecutors before, that the attorney-client privilege was
waived.187 And per Acting United States Attorney Slinkard’s testimony at the evidentiary
hearing, that remains the USAO’s official litigation position to this day.188
The Black Order further discussed, however, that this unilateral determination that the
recorded calls were conditioned on a knowing waiver of the attorney-client privilege was made
without factual support or accurate legal analysis.189 While the ultimate conclusion about
whether a particular detainee waived the attorney-client privilege or Sixth Amendment right to
confidential communications with counsel must be decided on a case-by-case basis, the record in
Black allowed the Court to make findings on several common issues. The Court found that many
CCA detainees lacked the information and means to knowingly and intelligently waive their
attorney-client privilege and/or the Sixth Amendment right to confidential attorney-client
communications because CCA failed to adequately inform them that their calls to attorneys
would be recorded unless they used the privatization process: (1) the signage near the phones did
not specifically inform detainees that attorney-client calls were also subject to being recorded;
(2) the Intake Booking Packet and Inmate Handbook did not sufficiently inform detainees about
how to ensure confidential communications with their attorneys through the privatization
process; (3) detainees routinely were not provided with the Inmate Handbook; and (4) the
186
Id. at 112.
187
Id. at 113.
188
Tr. Evid. Hrg. at 110–11.
189
Black Order at 110–13.
33
preamble at the beginning of the outgoing call to a non-private attorney phone number did not
provide meaningful notice that the call would be recorded.190
The Court concluded that while the government may be able to demonstrate facts in
individual cases that a detainee knowingly and intelligently waived the right to confidential
attorney-client communications, the record developed after the Special Master’s two-year
investigation in this case called into doubt the government’s ability to establish waiver based on
the orientation packet, Inmate Handbook, preamble, and signage, particularly in the face of
evidence that many defense attorneys advised their clients that their calls would not be
recorded.191 The Court stressed that Shillinger itself stands for the proposition that it takes more
than the mere presence of a third party for a person to waive their Sixth Amendment right to
confidential attorney-client communications.192 Similarly, the mere fact that CCA warned
detainees in various ways that their calls would be subject to recording and monitoring is not
enough, standing alone, to constitute waiver given the many other facts in the record that
detainees and their attorneys were led to believe these warnings did not apply to them.193
2.
Attorney-Client Privilege vs. Sixth Amendment
The Sixth Amendment right at issue here is the right to effective assistance of counsel;
that right includes the ability to speak candidly and confidentially with counsel free from
unreasonable government interference.194 This right is clearly related to the attorney-client
privilege, which encourages “full and frank communication between attorneys and their clients
190
Id. at 168–70.
191
Id. at 176–77.
192
Id. at 177.
193
Id.
194
See Weatherford v. Bursey, 429 U.S. 545, 554 n.4 (1977).
34
and thereby promote[s] broader public interests in the observance of law and administration of
justice.”195 The privilege is an evidentiary rule that prevents courts from compelling disclosure
of confidential communications by those the privilege shields.196 “Because the [S]ixth
[A]mendment ensures a right to effective assistance of counsel, it should follow that the [S]ixth
[A]mendment subsumes the attorney-client privilege, a necessary underpinning of that right.”197
Thus, the protection afforded by the Sixth Amendment includes, but is not limited to, the scope
of the attorney-client privilege.198
This does not mean, however, that protection under the Sixth Amendment extends to
every attorney-client communication without limits. While Hohn maintains that he need not
show an attorney-client communication is privileged to succeed on his Sixth Amendment claim,
the Court has rejected petitioners’ previous attempts to remove the attorney-client privilege from
the analysis as wholly irrelevant or a redundant additional layer of protection.199 Thus, while
recognizing that, standing alone, the attorney-client privilege is not a right guaranteed by the
Sixth Amendment, this Court has consistently applied principles relating to the attorney-client
195
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
196
Howell v Trammell, 728 F.3d 1202, 1222 (10th Cir. 2013) (citation omitted).
197
Note, Government Intrusions into Defense Camp: Undermining the Right to Counsel, 97 HARV. L. REV.
1143, 1145 (1984) (first citing Weatherford v. Bursey, 429 U.S. 545, 563 (1977) (Marshall, J., dissenting); and then
citing United States v. Levy, 577 F.2d 200, 209 (3d Cir. 1978)); see Doc. 225 at 10 (quoted in Doc. 940 at 5–6; Doc.
588 at 18.
198
See Weatherford, 429 U.S. at 554 (rejecting the idea that every time “a defendant converses with his
counsel in the presence of a third party thought to be a confederate and ally, the defendant assumes the risk” and
thereby also renders inapplicable the Sixth Amendment right to consult with counsel without government intrusion);
Shillinger v. Haworth, 70 F.3d 1132, 1134–35, 1142 (10th Cir. 1995) (holding the state violated the Sixth
Amendment by intentionally and unjustifiably becoming privy to attorney-client communications; declining to
address whether the communications were privileged after expressly acknowledging the possibility that the
petitioner waived the privilege by speaking with counsel in the presence of a third party).
199
Doc. 225 at 11–12; Doc. 588 at 22.
35
privilege as an appropriate framework for showing that the recordings between petitioners and
counsel are protected communications under the Sixth Amendment.200
Accordingly, determining whether the privilege attached to a petitioner’s attorney-client
recording was the logical starting point for the Court’s analysis of whether petitioners have made
a threshold showing on the protected-communication element of their claims. After the Court
directed the recordings to be released, it outlined a procedure whereby the FPD would conduct
an initial review to determine if the recordings met a very minimal showing of being protected
communications, without revealing the substance of the calls. This preliminary review was
necessary to determine whether the recordings existed and whether they related to legal advice or
strategy—threshold findings needed to establish whether petitioners are entitled to proceed to an
evidentiary hearing under the Rules Governing Section 2255 Proceedings.
But the Court further explained that this threshold showing is merely that—petitioners are
also required to establish there was a reasonable expectation of confidentiality with respect to the
audio recordings.201 As this Court previously discussed, in Sixth Amendment intentionalintrusion cases, where the right claimed includes the right to confidential communications with
counsel, a communication that “is intended to remain confidential and was made under such
circumstances that it was reasonably expected and understood to be confidential” is protected by
both the attorney-client privilege and from government intrusion under the Sixth Amendment.202
200
Doc. 225 at 11–12; Doc. 588 at 22–31; see Howell, 728 F.3d at 1222 (“A violation of the attorney-client
privilege implicates the Sixth Amendment right to counsel only . . . when the government interferes with the
relationship between a criminal defendant and his attorney.”) (quoting Partington v. Gedan, 961 F.2d 852, 863 (9th
Cir. 1992)).
201
Doc. 588 at 31.
202
Id. at 18–19 (quoting United States v. Melvin, 650 F.2d 641, 645 (5th Cir. 1981)); see In re Qwest
Commc’ns Int’l Inc., 450 F.3d 1179, 1185 (10th Cir. 2006) (explaining a “critical component” of the privilege is
whether the communication “‘is made under circumstances from which it may reasonably be assumed that the
communication will remain in confidence.’”) (quoting United States v. Lopez, 777 F.2d 543, 552 (10th Cir. 1995)).
36
Indeed, Shillinger requires petitioners to show that the government became privy to confidential
communications.203 Thus, to establish the protected-communication element, Hohn must show
that he had a reasonable expectation of confidentiality in his attorney-client call and that he did
not otherwise waive the attorney-client privilege.204 Per the Court’s directive, Hohn
supplemented the record with an affidavit addressing the government’s waiver and protectedcommunication argument and testified about these issues at the August 2021 evidentiary hearing.
3.
Reasonable Expectation of Confidentiality
The government argues that Hohn has failed to carry his burden to establish he had a
reasonable expectation of confidentiality with respect to the April 23, 2012 call. The
government contends that Hohn’s assertion that he considered his attorney-client
communications to be confidential is objectively unreasonable and thus no attorney-client
privilege or Sixth Amendment protection attached to the communications in the April 23, 2012
call. The Court agrees.
The record before the Court—the Inmate Handbook, the telephone-call monitoring
consent form, as well as Hohn’s sworn statement and testimony admitting that he believed his
attorney-client calls were monitored or recorded and that he knew he could make an unmonitored
call to his attorney but did not take steps to do so—supports a finding that Hohn did not have a
reasonable expectation of confidentiality in the April 23 call to Campbell. On that day, after he
had been at CCA for nearly three months and had studied and understood the Inmate Handbook
and phone monitoring consent forms he signed, Hohn placed the call to Campbell from a CCA
203
70 F.3d at 1142.
204
See In re Grand Jury Proc., 616 F.3d 1172, 1183 (10th Cir. 2010) (“The burden of establishing the
applicability of the attorney-client privilege rests on the party seeking to assert it.”). While Hohn bears the burden
of proving the applicability of the attorney-client privilege, including that he has not waived the privilege, the
government bears the burden of proving that Hohn did not waive his Sixth Amendment right to confidential
communications with counsel. See Carnley v. Cochran, 369 U.S. 506, 515–16 nn.9–10 (1962).
37
phone that he believed and understood was monitored and recorded. Hohn testified that he
believed and understood that his attorney-client calls were subject to recording by Securus and
CCA, that he consented to the monitoring and/or recording of his attorney-client calls, that he
understood the procedure to except attorney-client calls from monitoring, and that he never
followed the procedure to make an unmonitored call. There is no evidence that Campbell or
former counsel Burdick ever disabused Hohn of this belief or advised him that his attorney-client
calls were not subject to the numerous warnings he received. This conduct is inconsistent with
an objectively reasonable expectation of confidentiality in the attorney-client communications,
and thus the attorney-client privilege and the Sixth Amendment right to confidential attorneyclient communications did not attach to the April 23 call.
4.
Waiver
Even if the privilege attached, however, Hohn waived the privilege by knowingly and
voluntarily disclosing attorney-client communications on a monitored or recorded phone line—
effectively, a third party. “Because confidentiality is key to the privilege, ‘[t]he attorney-client
privilege is lost if the client discloses the substance of an otherwise privileged communication to
a third party.’”205 “‘Any voluntary disclosure by the client is inconsistent with the attorneyclient relationship and waives the privilege.’”206
This Court previously explained that Shillinger requires “more than the mere presence of
a third party for a person to waive their Sixth Amendment right” to confidential communications
with counsel.207 In Weatherford and Shillinger, the third party was either an undercover agent or
205
In re Qwest Commc’ns Int’l Inc., 450 F.3d at 1185 (quoting United States v. Ryans, 903 F.2d 731, 741
n.13 (10th Cir. 1990)).
206
Id. (quoting United States v. Bernard, 877 F.2d 1463, 1465 (10th Cir. 1989)).
207
Black Order at 176; Doc. 588 at 40.
38
a deputy sheriff who was required to be present. In other words, having law enforcement present
under these circumstances did not destroy the defendant’s reasonable expectation of the
confidentiality of the communications. 208 Hohn argues that consent to have phone calls
monitored by CCA and Securus for security purposes is no different from authorizing a deputy to
monitor trial-preparation sessions for the same purpose.
But Hohn’s case does not involve the “mere presence of a third party.” Key to the
Court’s finding is (1) Hohn’s clear admission that when he consented to the monitoring or
recording of his calls, he knew and understood that unless he followed the privatization
procedure, his attorney-client calls were being recorded by CCA and Securus, and (2) unlike the
petitioner in Shillinger, who was required to have the deputy present during his conversation
with counsel, he knowingly and voluntarily placed the call to Campbell without taking steps
available to him to privatize the call. Because Hohn knowingly and voluntarily disclosed the
content of his attorney-client call to a third party, any reasonable expectation of confidentiality,
and thus the attorney-client privilege, is lost.209
Hohn attempts to avoid this result by arguing that even if he waived the attorney-client
privilege as to CCA or Securus by consenting to the recording his attorney-client
communications for security purposes, he did not waive the privilege as to the prosecution team.
The government asserts that Hohn effectively proposes the Court find that his voluntary
disclosure of the attorney-client communications on a line he knew was subject to recording
208
Shillinger, 70 F.3d at 1134.
209
See United States v. Johnson, No. 2:11-cr-00501-DN-PMW, 2016 WL 297451, at *4 (D. Utah Jan. 22,
2016) (denying defendant’s claim that government intentionally intruded into his attorney-client relationship under
Shillinger by obtaining Presentence Investigative Report materials that included defendant’s immunized testimony;
because defendant voluntarily disclosed the substance of attorney-client communications to a third party when he
cooperated with government investigators, any information is not protected by the attorney-client privilege and
“there can be no Sixth Amendment violation for the government obtaining it”).
39
constitutes a form of “selective waiver” that does not waive the attorney-client privilege beyond
the limited disclosure made. However, the Tenth Circuit has refused to adopt “a selective waiver
doctrine as an exception to the general rules of waiver upon disclosure of protected material.”210
The court explained that “[b]ecause exceptions to the waiver rules necessarily broaden the reach
of the privilege or protection, selective waiver must be reviewed with caution.”211 Thus, this
Court is foreclosed from finding a selective waiver has taken place, and the general rules of
waiver of the attorney-client privilege apply.212
Because the attorney-client privilege is a necessary underpinning of Hohn’s Sixth
Amendment right, he cannot satisfy the protected-communication element of his claim. Hohn
does not cite, nor has this Court found, case law that extends the Sixth Amendment right to
confidential communications with counsel to attorney-client communications where the privilege
did not attach for lack of a reasonable expectation of confidentiality or where the privilege was
voluntarily waived.213 And because the call to Campbell was never protected under the Sixth
Amendment, the Court does not reach the issue of waiver of any Sixth Amendment right. Even
if the government is required to make an additional showing that Hohn knowingly and
intelligently waived his Sixth Amendment right to confidential communications with counsel, he
effectively did so for the same reasons he waived application of the attorney-client privilege.
210
In re Qwest, Commc’ns Int’l Inc., 450 F.3d 1179, 1192 (10th Cir. 2006).
211
Id. at 1195.
212
Id. at 1192 (characterizing the selective waiver doctrine as “a leap, not a natural, incremental step in the
common law development of privileges and protections”); see Heartland Surgical Specialty Hosp., LLC v. Midwest
Div., Inc. (declining to find selective waiver under Qwest). The Court gives little weight to the government’s
suggestion that the content of Hohn’s attorney-client call implicated any facility or public safety or security
concerns. Nor does the Court address the government’s argument that Hohn might have otherwise waived the
privilege by sharing confidential information with non-attorneys prior to or after the call was placed.
213
See Johnson, 2016 WL 297451, at *4.
40
Accordingly, Hohn has not satisfied the protected-communication element of his Sixth
Amendment claim.
The Court stresses that this conclusion is limited to facts before it with respect to Hohn.
Many petitioners in these proceedings have specifically averred that they did not understand that
their attorney-client calls were subject to recording or that they consented to CCA or Securus
recording the calls for any purpose.214
B.
Purposeful Intrusion Into Attorney-Client Relationship
The government argues that because Hohn’s April 23, 2012 call was not protected by the
attorney-client privilege or the Sixth Amendment, there could not have been any purposeful
intrusion into his attorney-client relationship. The government is correct that because Shillinger
rests on the government becoming privy to confidential communications, there can be no
purposeful intrusion into the attorney-client relationship. But the issue of whether an attorneyclient communication is protected is a function of the case-specific waiver analysis conducted by
the Court, not the government’s cavalier attitude to jail calls in general or its unilateral and
inaccurate assessment of waiver. The facts and circumstances of this case compel the Court to
offer the following discussion of this element of Hohn’s Sixth Amendment claim.
Post-Shillinger case law suggests that purposeful intrusion into the attorney-client
relationship does not occur “merely by the prosecution obtaining the protected materials; rather,
214
See, e.g., United States v. Spaeth, No. 19-2413-JAR-JPO, Doc. 874 (detailing petitioner’s declaration
addressing the issue of waiver where he avers that he did not know that by signing the Inmate Handbook and Call
Monitoring Sheet he was consenting to the monitoring and recording of his attorney-client calls unless he took
certain steps; at the time he placed the calls to counsel he did not believe that the recorded preamble or the signage
near the phones applied to attorney-client calls); United States v. Mitchell, No. 17-2380-JPO, Doc. 16 (granting
petitioner an evidentiary hearing on his 2255 motion alleging a pre-trial audio recording claim violation; detailing
petitioner’s declaration addressing waiver where he avers that he did not know that by signing the documents
provided by CCA, he was consenting to the monitoring and/or recording of his attorney-client calls unless he took
certain steps, that at the time he placed the calls to counsel he did not believe the recorded preamble applied to
attorney-client calls, and that he did not believe the signage placed near CCA phones applied to attorney-client
calls).
41
it is what the prosecution does with the materials after obtaining them that determines whether
there has been a Sixth Amendment violation.”215 In these subsequent cases, the prosecution team
took care to avoid exposure to any attorney-client communication and there was no evidence that
any member of the team became privy to the content of such. In other words, there can be no
purposeful intrusion into the attorney-client relationship unless the confidential information was
actually communicated to the prosecution team.216 Because this element necessarily requires
that the prosecution team became privy to Hohn’s April 23, 2012 call, the Court considers these
elements together. As this Court has previously indicated, Hohn is free to rely on evidence of
pre- and post-intrusion conduct to satisfy these elements.217
The government contends that this element requires Hohn to show that the prosecution
team acted with the specific intent to intrude into his attorney-client relationship in the initial act
of requesting or obtaining the attorney-client communications. The government further contends
that no member of the prosecution team ever became privy to the April 23, 2012 call. The Court
disagrees on both counts.
Shillinger makes clear that the per se rule applies when the government purposefully
intrudes into the attorney-client relationship and, as a result of that intrusion, it becomes privy to
protected attorney-client communications.218 In that case, the prosecutor intentionally intruded
into the attorney-client relationship by enlisting the deputy who had been present during
communications between the defendant and his attorney to report the substance of those
215
Johnson, 2016 WL 297451, at *5 (citing United States v. Singleton, 52 F. App’x 456, 458–59 (10th Cir.
2002); United States v. Zajac, No. 06CR811DAK, 2008 WL 1808701, at *5 (D. Utah Apr. 21, 2008)).
216
Id.
217
Black Order at 176–77.
218
Shillinger v. Haworth, 70 F.3d 1132, 1142 (10th Cir. 1995).
42
communications to the prosecutor.219 The court explained that “the prosecutor, by his own
admission, proceeded for the purpose of determining the substance of [the defendant’s]
conversations with this attorney, and attorney-client communications were actually disclosed.
This sort of purposeful intrusion on the attorney-client relationship strikes at the center of the
protections afforded by the Sixth Amendment . . . .”220 The Court agrees with Hohn that the
purposeful-intrusion element applies to the prosecution team’s ultimate act of becoming privy to
a defendant’s attorney-client communications, not necessarily the initial act of requesting or
obtaining them.221 Once a defendant demonstrates the requisite purpose and intrusion are
present, only a legitimate law enforcement justification will remove the case from the ambit of
Shillinger’s per se rule.
This is especially evident in cases where the government or its agents issued a general
subpoena for all of a petitioner’s CCA calls, without taking any steps to exclude calls to
attorneys or to use a filter team. The Court discussed this issue in detail in the Black Order,
where the FPD argued that the USAO purposefully intruded into attorney-client relationships by
collecting and saving CCA recordings that it knew or should have known included protected
communications, with no exceptions for attorney-client calls or any other cautionary
measures.222 The evidence in Black showed that the USAO and its agents routinely requested
and received recordings of phone calls that defendants placed from CCA, with no precautions to
exclude or avoid learning the content of these recordings or use of a filter or taint team. As the
government now admits, sometimes the recordings that the prosecution team obtained from CCA
219
Id. at 1134–35.
220
Id. at 1141.
221
Id. at 1141–42 (focusing on the prosecutor’s intent and treating the deputy’s intent as irrelevant).
222
Black Order at 80–123.
43
included calls that defendants placed to their defense attorneys. And the record is clear that upon
receiving recordings, prosecutors and their agents routinely reviewed the calls. As discussed in
the Black Order, when the USAO obtained calls from CCA, it had a one-in-four chance of
encountering a call placed to a phone number associated with the defendant’s attorney.223
Several agents and AUSAs in Black admitted to encountering attorney-client calls. Most,
like AUSA Morehead, denied they had any idea that the prosecution team was in possession of
such calls or that they listened to the recordings, despite having access to the audio recordings
under circumstances where they knew or should have known the material would include
attorney-client communications, with no precautions to exclude or avoid learning the content of
these recordings or use of a filter or taint team. The record also showed that the USAO kept
recordings of such calls for years without disclosing them to defense counsel. Ultimately,
however, the Court determined that whether the USAO purposefully intruded into a defendant’s
attorney-client relationship must be determined on a case-by-case basis.224
Here, Deputy Williams testified that he did not request Hohn’s calls for the purpose of
listening to conversations between Hohn and his attorney. At Williams’s direction, TFO Farkes
issued a subpoena for the April 2012 recordings of calls place by Hohn and two of his codefendants in connection with the investigation of Price’s death and disappearance. Farkes never
received any training about how to handle jail calls and testified that he never listened to any of
the recording he obtained pursuant to that subpoena, but instead made copies for Williams and
Deputy Denton. Williams testified that he had no reason to think it was very likely that CCA
would include calls to Hohn’s attorney. No attorney-client calls were included in the CCA calls
223
Id. at 104; Ex. 827 at 18.
224
Black Order at 176–77.
44
he subpoenaed in February 2012, and there is no evidence that Williams subscribed to the belief
that such calls were fair game. Nor is there any evidence that AUSA Morehead used Williams to
obtain Hohn’s CCA calls in an attempt to disavow any knowledge of improper activity.
But the fact that the agents may have inadvertently obtained Hohn’s attorney-client call
by issuing a broad subpoena without any precautions does not immunize the prosecution team
from liability for subsequently becoming privy to the contents of the recording. This Court has
stated that it intends to take as established facts proving the “privy to” element of petitioners’
claims based on the government’s refusal to comply with the Court’s discovery orders under
Fed. R. Civ. P. 37.225 Here, this element can also be established by independent support found in
AUSA Morehead’s affidavits;226 an internal USAO email;227 Deputy Williams’s testimony at the
evidentiary hearing;228 and emails between members of the prosecution team.229
The April 2012 subpoena was the second time Hohn’s calls were obtained by Deputy
Williams. AUSA Morehead’s May 29, 2020 affidavit discusses these sets of calls placed by
Hohn and his co-defendants.230 Morehead specifically states that the agents prepared reports
about the obtaining and review of the calls obtained on April 24, 2012, which she represents
were provided in discovery.231
It is clear that Deputy Williams and Deputy Denton listened to the calls they obtained in
February 2012 and documented their review of the calls. The agents also documented review of
225
Doc. 587 at 16. The government maintains that those discovery orders were unlawful and has preserved
those arguments for any appeal. See, e.g., Doc. 570 at 2–8.
226
Ex. 807 ¶ 8; Ex. 806 ¶ 8.
227
Ex. 6.
228
Tr. Evid. Hrg. at 363–73
229
See, e.g., Exs. 8, 837.
230
Ex. 807 ¶ 8.
231
Id.
45
other calls that they obtained in April 2012, even though those calls did not have any evidentiary
value, and the government was able to locate and produce at least some of that documentation.
Yet the government did not offer any documentation or testimony regarding the deputies’ review
of N-8—a CD that contained only Hohn’s April 23, 2012 attorney-client call. It makes little
sense that the agents would not listen to N-8, given the time-sensitive nature of the Price
investigation and the particular focus on Hohn’s involvement in his death. In light of the
prosecution team’s well-documented approach to handling the recordings of non-attorney-client
calls in this case, the absence of such evidence is suspect and suggests that (1) they did listen to
the call and knew it was wrong for them to do so, or (2) they did document or otherwise report
their review to Morehead but did not produce any evidence related to this report.
Even if the agents did not listen to N-8, however, the evidence shows that AUSA
Morehead did. As discussed in this Court’s order denying Hohn’s motion for leave to amend to
add a Brady violation claim, Morehead obtained copies of the phone call that Hohn placed to his
sister on February 3, 2012, and saved the call for sentencing when she offered it as Exhibit 1 in
support of her request that the court impose a life sentence.232 Morehead also retained her own
copy of N-8, which she stored with at least one copy of sentencing Exhibit 1. On January 7,
2019, the USAO produced three CDs to the Court: (1) an intact copy of N-8; (2) a broken copy
of a CD labeled as Government’s Exhibit 1; and (3) another broken CD.233 Ten days later, in an
attachment to an email she sent to Acting United States Attorney Slinkard, former USAO
employee Linda Smith referenced those same materials in connection with Hohn.234 This
232
Doc. 1022 at 3, 8 (describing Hohn’s call to his sister where he discussed taking revenge on individuals
who cooperated against him).
233
Ex. 885 at 1, 6; Ex. 90 (depicting a broken CD marked as Government’s Exhibit 1, a second broken CD,
and an intact CD marked as a copy of N-8).
234
Ex. 2 at 5.
46
attachment indicates that Morehead located all three CDs in Hohn’s physical case file and
personally delivered the CDs to Smith.235
In addition, Acting United States Attorney Slinkard’s testimony indicates that AUSA
Morehead was harboring her own copy of N-8, as the USAO asked upstream agents and agencies
for their copies of recorded calls only if the USAO was first unable to locate known calls in the
USAO’s possession.236 Here, the USAO did not ask the DEA for copies of Hohn’s calls until
just prior to the August 2021 evidentiary hearing, which explains why the DEA was still in
possession of the original version of N-2 (Hohn’s February 2012 calls) and N-8 as of July
2021.237 Accordingly, the copy of N-8 that the USAO produced to the Court on January 7, 2019,
was a copy of N-8 that the USAO already had in its office.238
Further, AUSA Morehead’s conduct is inconsistent with her testimony that she did not
listen to or otherwise become privy to the attorney-client call on N-8. As detailed in this Court’s
post-evidentiary order on Hohn’s proposed Brady claim, in the lead up to Hohn’s 2013 trial,
AUSA Morehead took steps to conceal her continuing possession of that call, as embodied in an
April 12, 2013 email chain between Morehead, Campbell, and defense counsel Debra
Vermillion, who represented co-defendant Redifer.239 Vermillion requested Morehead provide
her with calls and reports referenced in a report authored by Smith. That report referenced the
materials that TFO Farkes collected from CCA on April 24, 2012: three CDs, which later
became N-7 (calls place by Quick), N-8 (the call place by Hohn), and N-9 (calls place by co-
235
Id. at 1, 5, 6.
236
Tr. Evid. Hrg. at 75.
237
Exs. 107, 108.
238
Tr. Evid. Hrg. at 75.
239
Doc. 1022 at 21; Ex. 8.
47
defendant Tracy Rockers).240 Morehead responded, “I won’t give out CCA/in custody calls
unless they are your client’s calls or I am going to somehow use them in court or unless they are
otherwise discoverable.”241 In her reply, Vermillion reminded Morehead that Campbell had
been copied on the initial email requesting the April 2012 calls, that he was also requesting the
calls and any associated reports, and that it appeared at least some of the calls had been placed by
Campbell’s client, Hohn.242 Vermillion’s reply also sought confirmation regarding whether
Morehead planned to use any of the April 2012 calls against Redifer and, if not, whether any of
the calls were exculpatory or otherwise discoverable.243 Morehead then attempted to walk back
her earlier statement that she would produce recordings of a defendant’s recorded calls to the
defendant’s attorney; instead of providing Campbell a copy of N-8 and the associated paperwork,
Morehead replied that Campbell could “get all of his client’s calls directly from CCA if he
chooses.”244 Thus, Morehead did not disclose N-8 to Campbell in discovery, despite having
disclosed a report that referenced the April 2012 materials, admitting this fact to government
counsel in a February 13, 2019 email.245 By declining to do for Campbell what she represented
she normally does, Morehead made it less likely that anyone would discover that she was in
possession of N-8. AUSA Morehead’s behavior indicates that she possessed N-8, listened to
Hohn’s attorney-client call, and took steps to conceal that tactical advantage.
AUSA Morehead’s subsequent conduct, along with the related conduct of the USAO, is
further evidence that she was privy to Hohn’s attorney-client call. Despite previously refusing
240
Ex. 16.
241
Ex. 8.
242
Id.
243
Id.
244
Id.
245
Ex. 5.
48
Campbell’s request to produce Hohn’s April 2012 CCA call and subsequently admitting this to
government counsel, she stated in her May 29, 2020 affidavit that she did provide Hohn’s April
23, 2012 call to Campbell.246 During her August 2021 testimony, however, she reversed her
position once again, testifying that she was never aware that the prosecution team had obtained
the April 2012 calls and therefore did not produce those calls to Campbell in discovery.247
Further, AUSA Morehead’s contrary statement about providing the April 2012 calls to
Campbell was highlighted in the copy of the affidavit that the government ultimately submitted
to this Court.248 In its § 2255 response, the government equivocates on Morehead’s
representation, suggesting that there remains a possibility that Campbell received these calls in
discovery, and if it turns out to be the case, the Court should dismiss Hohn’s § 2255 motion as
procedurally defaulted.249 The government’s careful treatment of this highlighted statement is
understandable, given Acting United States Attorney Slinkard’s testimony that Morehead’s
reputation for veracity is poor.250
AUSA Morehead had every opportunity to explain how, when, and why she obtained
access and became privy to Hohn’s attorney-client call during her August 9, 2021 testimony.
Instead, she continued to minimize, deflect, and obfuscate her role in Hohn’s Sixth Amendment
claim. When the USAO began the process of disgorging calls to the Court, she resisted.251
During the course of her testimony, Morehead: equivocated about whether she subpoenaed
246
Ex. 807 at ¶ 8.
247
Tr. Evid. Hrg. at 191.
248
Doc. 300-1; Ex. 807. Morehead denies highlighting this portion of her affidavit. Tr. Evid. Hrg. at 198.
249
See Hohn, 19-2082-JAR-JPO, Doc. 3 at 5–11.
250
Tr. Evid. Hrg. at 336–49.
251
Exs. 7, 58.
49
Hohn’s and Redifer’s calls;252 attempted to minimize her role in requesting and obtaining CCA
calls;253 attempted to minimize her knowledge of the USAO’s call-collection procedures between
2012 and 2015;254 equivocated about a specific defendant’s case;255 equivocated about discovery
procedures;256 equivocated about what calls she did and did not produce in discovery;257
equivocated about threats to government witnesses;258 and denied any involvement with “the
second batch” of calls, despite keeping a copy of N-8 in Hohn’s case file.259 In light of this
record, the Court concludes that Morehead’s denial that she became privy to Hohn’s attorneyclient call is simply not credible.
Likewise, any suggestion that AUSA Morehead did not intend to become privy to the call
is not persuasive. Hohn concedes that if the government could demonstrate that the exposure to
his attorney-client call was inadvertent rather than intentional, then Hohn would not be able to
avail himself of Shillinger’s per se rule. The government has never admitted, however, that any
member of the prosecution team became privy to Hohn’s attorney-client call at all, much less
inadvertently.
As discussed in the Black Order, in cases where AUSAs or agents accidently encountered
recorded attorney-client communications, they typically reported the experience to someone else.
Some AUSAs reported the exposure immediately, either to another member of the prosecution
252
Id. at 163–64.
253
Id. at 166–68.
254
Id. at 169.
255
Id. at 172–75.
256
Id. at 184.
257
Id. at 185–92, 194–98.
258
Id. at 199–204.
259
Id. at 222.
50
team, to defense counsel, or both.260 The government has never asserted, nor is there evidence to
suggest, that any prosecution team member started listening to the April 23, 2012 call, heard
Campbell’s voice and the nature of the conversation, and immediately stopped listening to the
call. But as she made clear in her testimony, AUSA Morehead’s prosecution tactics were
anything but typical. Morehead’s subsequent refusal to provide N-8 to Campbell, followed by
her personal subpoena of recordings of all telephone calls that Hohn and Redifer made from
CCA, is not the behavior of a prosecutor who inadvertently became privy to a single attorneyclient call and then took steps to keep the same thing from happening again. But it is consistent
with the behavior of a prosecutor whose litigation philosophy was that Fed. R. Crim. P. 16 did
not require her to turn over recorded statements of the defendant unless she was going to use
them.261 It is also consistent with the litigation philosophy of USAO prosecutors who acted on
the belief that when they came upon such calls obtained from CCA, it was permissible to
proceed to access the call. And it is consistent with Acting United States Attorney Slinkard’s
testimony that it remains the official litigation position of the government that when it obtains
attorney-client calls that had a preamble warning that the call may be recorded, the attorneyclient privilege never attached and thus the law permits the government to listen to the call.262
This record leads the Court to conclude that AUSA Morehead intended to intrude into
Hohn’s attorney-client relationship by intentionally becoming privy to the April 23, 2012
attorney-client call, but failed only because of the protected-communication waiver issue that she
could not have known about at the time of the intrusion. While such conduct is reprehensible, it
does not constitute a purposeful intrusion under Shillinger, which requires that the
260
See, e.g., Ex. 22 (Brenda Wood); Ex. 38 (Jerome Birdsong); Black Order at 92–93 (Gregory Rapp).
261
Tr. Evid. Hrg. at 190–91.
262
Id. at 108–09.
51
communications that were disclosed be protected. The Court stresses that, as with the
determination of the protected-communication element, these elements necessarily lend
themselves to case-by-case analysis.
C.
Legitimate Law-Enforcement Purpose
Finally, because the Court does not find purposeful intrusion, it need not consider
whether the government had a legitimate law-enforcement purpose for obtaining Hohn’s
attorney-client call. The Court notes, however, that the dispositive question on this element is
not whether CCA had a legitimate law-enforcement justification for recording Hohn’s attorneyclient calls, or whether the prosecution team had a legitimate law-enforcement justification for
requesting Hohn’s communications with non-attorneys. Instead, Weatherford and Shillinger
make clear that the question is whether the prosecution team had a legitimate law-enforcement
justification for becoming privy to Hohn’s April 23, 2012 attorney-client call. In Weatherford,
the undercover agent, who was not a member of the prosecution team, had a legitimate lawenforcement reason for attending the defendant’s attorney-client meetings and becoming privy to
the defendant’s attorney-client communications. But that did not necessarily give him a
legitimate law-enforcement justification to share what he knew with the prosecution team.263
And in Shillinger, the fact that the deputy had a legitimate law-enforcement justification for
monitoring the defendant’s attorney-client meetings did not mean the prosecutor could use the
legitimacy of that initial intrusion to justify the prosecutor’s illegitimate one.264
263
Weatherford v. Bursey, 429 U.S. 545, 555–58 (1979) (explaining that if the undercover agent had shared
substantive information with the prosecution team, the defendant would have had “a much stronger [Sixth
Amendment] case”).
264
Shillinger v. Haworth, 70 F.3d 1132, 1134–35, 1139 (10th Cir. 1995).
52
Here, the government has never asserted that any member of the prosecution team
became privy to Hohn’s April 23, 2012 call in order to advance a legitimate law-enforcement
goal, nor is there any evidence in the record to support such an assertion. Despite the
government’s focus on the horrific nature of Price’s death and disposal of his body, Acting
United States Attorney Slinkard confirmed that there is no reason to think the prosecution team
suspected or believed that Campbell and Hohn were committing a crime or perpetrating a
fraud.265 Instead, as discussed throughout this Order, the government maintains that no member
of the prosecution team became privy to the attorney-client call.
VI.
Conclusion
The Court has endeavored to follow the letter of Shillinger in these consolidated
proceedings generally and in Hohn’s case specifically. There is not much precedent for the
Court to draw from for obvious reasons; such governmental intrusions into defendants’ attorneyclient relationships are easily prevented by the use of a taint team or other precautions.266 The
government’s approach is clear from the introductory statement in its proposed findings and
conclusions; it continues to trivialize the circumstances precipitating Hohn’s Sixth Amendment
claim at issue, referring to his claim for relief as a “windfall.”267 The Court is troubled that even
after turning over scores of attorney-client calls that have been in its possession for years,
including the call at issue in this case, the government has steadfastly refused to acknowledge the
problem before the Court and disclaim any responsibility for fixing that problem. The
government has confirmed that its official litigation position continues to be that it is legal for a
265
Tr. Evid. Hrg. at 109.
266
Indeed, the District of Kansas USAO adopted a new filter team policy in the wake of the Black
investigation that includes a requirement that prosecutors make their requests for jail calls in writing on request
forms and provides for a filter-team procedure. Black Order at 120.
267
Doc. 1028 at 1.
53
prosecution team to make the unilateral determination that it is permissible to obtain and listen to
recorded calls from detainees to counsel without any obligation to consult or seek approval from
the court on the issue of waiver. Likewise, despite evidence of her conduct in both this and other
criminal cases, the government has confirmed that it has not imposed internal sanctions or
discipline against AUSA Morehead on the basis of untruthfulness.268
Although Hohn’s individual allegations ultimately fall short of establishing a
constitutional violation, nothing in this Order should be construed as condoning the
government’s behavior. Because a purposeful intrusion into the attorney-client relationship
necessarily requires a showing that the recording was a protected attorney-client communication,
there can be no Sixth Amendment violation without one. Accordingly, Hohn has not met his
burden to prove his Sixth Amendment claim, and his § 2255 motion is denied.
VII.
Certificate of Appealability
Rule 11 of the Rules Governing Section 2255 Proceedings states that the Court must
issue or deny a certificate of appealability (“COA”) when it enters a final order adverse to the
applicant. “A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”269 To satisfy this standard, the
movant must demonstrate that “reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.”270 For the reasons stated above, the Court finds
that Hohn has not made this showing and, therefore, denies a certificate of appealability as to its
ruling on his § 2255 motion.
268
Tr. Evid. Hrg. at 335–49.
269
28 U.S.C. § 2253(c)(2).
270
Saiz v. Ortiz, 392 F.3d 1166, 1171 n.3 (10th Cir. 2004) (quoting Tennard v. Dretke, 542 U.S. 274, 282
(2004)).
54
IT IS THEREFORE ORDERED BY THE COURT that the government’s Motion to
Reconsider (Doc. 958; Doc. 774 in 12-20003-03-JAR; Doc. 11 in 19-2082-JAR-JPO) is denied;
the Court clarifies its ruling on several legal issues as detailed herein.
IT IS FURTHER ORDERED that the government’s Motion in Limine (Doc. 983; Doc.
28 in 19-2082-JAR-JPO) is granted in part and denied in part.
IT IS FURTHER ORDERED that Petitioner Steven M. Hohn’s Motion to Vacate and
Discharge with Prejudice Under 28 U.S.C. § 2255 (Doc. 718 in Case No. 12-20003-03-JAR) is
denied. Hohn is also denied a COA.
IT IS SO ORDERED.
Dated: December 9, 2021
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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