In re: CCA Recordings 2255 Litigation

Filing 827

MEMORANDUM AND ORDER - petitioner Jorge Soto-Saldivar's Motion to Discharge and Vacate with Prejudice Under 28 U.S.C. § 2255 is dismissed. Soto-Saldivar is also denied a certificate of appealability. Signed by Chief District Judge Julie A. Robinson on 3/31/2021. (hw)

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 Case No. 15cr-40060-DDC-1, United States v. Jorge
Soto-Saldivar, and Case No. 18-cv-4094JAR-JPO, Jorge Soto-Saldivar v. United
States)

United States of America.
Respondent.

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Jorge Soto-Saldivar’s Motion to Vacate and
Discharge with Prejudice under 28 U.S.C. § 2255 (Doc. 51).1 Petitioner alleges the government
violated the Sixth Amendment by intentionally and unjustifiably becoming privy to his attorneyclient communications. As a remedy, he asks the Court to vacate his judgment with prejudice to
refiling or alternatively, to reduce his term of imprisonment by approximately 50%, vacate his
term of supervised release, and return any forfeited money. The government has responded,
opposing the motion and seeking dismissal on jurisdictional and procedural grounds.2 For the

1
Unless otherwise specified, citations prefaced with “Doc.” refer to filings and docket entries in the
underlying criminal case, No. 15-cr-40060-DDC. Citations prefaced with “CCA Rec. Lit., Doc.” refer to filings and
entries in this consolidated case, No. 19-2491-JAR-JPO. With the exception of United States v. Carter, No. 1620032-JAR, Doc. 758 (D. Kan. Aug. 13, 2019) (“Black Order”), citations to filings in No. 16-20032-JAR are
prefaced with “Black, Doc.”
2

Soto-Saldivar v. United States, 18-4094-JAR-JPO, Doc. 4.

1

reasons explained in detail below, Petitioner’s challenge to his conviction and sentence are
dismissed for lack of standing.
I.

Background
A.

Procedural History

On April 1, 2016, Petitioner pleaded guilty pursuant to a binding plea agreement to Count
1 of a superseding indictment, charging him with conspiracy to distribute and possess with intent
to distribute more than 500 grams of methamphetamine.3 The plea agreement included a
proposed sentence of 120 months’ imprisonment and a five-year term of supervised release,
which reflected the statutory mandatory minimum sentence.4 On August 8, 2016, Judge Daniel
D. Crabtree adopted the binding plea agreement and sentenced Petitioner accordingly.5
Petitioner did not file a direct appeal of his conviction or sentence, nor has he filed a prior habeas
motion under 28 U.S.C. § 2255.
Petitioner was represented by Forrest Lowry in the underlying criminal proceedings. The
Court appointed the Federal Public Defender (“FPD”) to represent Petitioner in his § 2255
proceeding on July 17, 2018.6 On August 28, 2018, the FPD filed a motion pursuant to § 2255
on Petitioner’s behalf, setting forth a single ground for relief: the government violated the Sixth
Amendment by intentionally and unjustifiably intruding into his attorney-client relationship.7

3

Doc. 1.

4

Docs. 33, 35.

5

Docs. 45, 55.

6

Standing Order 18-3.

7

Doc. 51.

2

The government responded to the motion and Petitioner replied.8 Petitioner is currently
incarcerated at FCI Three Rivers, and his release date is January 15, 2024.9
B.

The Black Investigation and Order

The Court assumes the reader is familiar with its ruling in United States v. Carter (“Black
Order”) that precipitates the § 2255 motions before the Court.10 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 does not restate the
underlying facts and conclusions of law in detail but will provide excerpts from the record as
needed to frame its discussion of the issues presently before it.
Petitioner seeks relief based on events that came to light in the Black case and
investigation, which involved audio recordings of telephone conversations and soundless video
recordings of meetings between attorneys and their clients who were incarcerated at CCA. The
government admits that it obtained videos from CCA in connection with the Black case, which
focused on drug and contraband trafficking inside CCA. The government’s possession of these
recordings came to light in August 2016, when then-Special Assistant United States Attorney
(“SAUSA”) Erin Tomasic and AUSA Kim Flannigan accused defense attorney Jacquelyn
Rokusek of “jeopardiz[ing] their investigation” in Black based on information they claimed to
have gleaned from the video recordings.11 The defense also discovered that the United States

8

Soto-Saldivar, 18-4094-JAR-JPO, Docs. 5, 6.

9

Federal Bureau of Prisons, Inmate Locator, https://www.bop.gov/inmateloc/ (last visited Mar. 31, 2021).

10
No. 16-20032-JAR, Doc. 758 (D. Kan. Aug. 13, 2019). As discussed in that Order, the 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.
11

Id. at 70–80.

3

Attorney’s Office for the District of Kansas (“USAO”) had routinely obtained CCA recorded
attorney-client phone calls, and that it did so without notice to the attorneys, clients, or courts.12
Once notified of the video and audio recordings, this Court ordered (1) all local federal
detention facilities to cease recording attorney-client meetings and phone calls;13 (2) the video
and audio recordings in USAO custody to be impounded;14 and (3) the government to preserve
its computer hard drives.15 By October 11, 2016, the Court had appointed a Special Master to
assist in what the Court termed “Phase I and Phase II” of the Court’s investigations, that is, to
determine the number of recordings possessed by the government and how to index and
segregate them, and to identify privileged or confidential information within those recordings.16
On January 31, 2017, the Special Master issued the “First Report Regarding Video
Recordings.”17 The Special Master determined that the government had obtained from CCA
video recordings of the attorney-inmate rooms made between February 20, 2016, and May 16,
2016—a period of 86 days, or approximately 14,000 hours—documenting approximately 700
attorney visits.18 This Court in Black found that the USAO did not come into possession of the
CCA videos until June 1, 2016.19 The Court has since clarified that the government’s possession
of the video recordings began when the United States Secret Service picked up DVR 6 from

12

Id. at 29–30.

13

Black, Doc. 253 at 3.

14

Id. at 3, 12 (“The Court subsequently issued a clawback order directing the government to gather and
surrender to the Court all audio recordings in its possession, in the possession of investigative agencies, and in the
possession of other defendants who had received them in discovery.”).
15

Id. at 40. At the September 7, 2016 hearing in Black, “[t]he Court ordered the government to retain and
preserve all of the hard drives as well as all of the hardware necessary to access the information on the hard drives.”
Id.
16

Black, Doc. 146 (Appointment Order).

17

Black, Doc. 193.

18

Id. at 3, 5 (specifically, CCA Attorney Meeting Rooms 3 and 6 through 9).

19

Black Order at 66.

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CCA on May 17, 2016.20 There is no dispute that the USAO disgorged the video recordings to
the Court on August 9, 2016. Nor is there evidence that the government maintained copies of the
video recordings on a computer (the “AVPC”) or on Special Agent Jeff Stokes’s laptop after that
time.21
The government did not cooperate with the Special Master’s investigation, however, and
its failure to cooperate ultimately resulted in a lengthy delay in this Court’s ability to rule on
these issues. Finally, despite the delay associated with the government’s failure to cooperate and
its litigation efforts challenging the propriety of the Special Master’s investigation, the Court
conducted a full evidentiary hearing on all pending matters in Black in October and November
2018.
On August 13, 2019, the Court issued the Black Order, which detailed, among other
things, the government’s view that soundless video recordings are not protected communications
and rejected the government’s argument that the communication in the videos is too rudimentary
to discern whether it involves legal advice or strategy or to disclose the content of any
accompanying verbal communication.22 The Order also addressed the governing standard for an
intentional-intrusion Sixth Amendment claim in the Tenth Circuit.23 The Order discussed the
elements required to prove a per se violation of the Sixth Amendment under the Tenth Circuit
decision in Shillinger v. Haworth,24 which held that a per se Sixth Amendment violation occurs
when: (1) there is a protected attorney-client communication; (2) the government purposefully

20

CCA Rec. Lit., Doc. 784 at 13.

21

Id., Doc. 546 (Petitioners’ Notice of Errata withdrawing any such allegations individually or collectively

advanced).
22

Black Order at 164–65.

23

Id. at 145–62.

24

70 F.3d 1132 (10th Cir. 1995).

5

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 interest.25 Once those elements are established, prejudice is
presumed.26
The Court further held that a finding of purposeful intrusion into the attorney-client
relationship necessarily requires a threshold showing that the recordings were protected attorneyclient communications.27 While recognizing that the attorney-client privilege is not a right
guaranteed by the Sixth Amendment, the Court applied principles relating to the privilege as a
framework for this showing that the recordings between petitioners and counsel were protected
communications under the Sixth Amendment. With respect to the video recordings, the Court
determined that the following threshold showings must be made after review and verification by
the FPD: (1) the video of the attorney-client meeting exists; and (2) the quality of the non-verbal
communication in the video is sufficient to confirm communication between the detainee and
counsel.28 This threshold showing requires an affidavit from defense counsel confirming that the
nature and purpose of the meeting(s) were within the ambit of protected communication,
including but not limited to defense preparation, plea negotiations, or review of discovery.29
C.

Proceedings in Consolidated Master Case

The Black Order reassigned all Black-related § 2255 motions pending before other judges
in the District to the undersigned for determination of the merits of petitioners’ Sixth

25

Black Order at 162 (citing Shillinger, 70 F.3d at 1142).

26

Id.

27

Id. at 163.

28

Id. at 166.

29

Id.

6

Amendment claims and for consolidated discovery.30 It was this Court’s intent that by
reassigning the habeas actions to the undersigned and consolidating the cases for discovery, the
process for seeing over 100 cases to completion would be streamlined for all parties.
The Court also assumes the reader is familiar with the proceedings in the consolidated
master case that precipitates the matter before the Court, and does not restate the underlying facts
in detail but will provide excerpts from the record as needed to frame its discussion of the issues
presently before it. In addition to the two threshold showings recited above, this Court stated
during a September 2019 status conference that the privilege logs for video recordings would
need to describe the specific topic of any confidential attorney-client communication, for
example, plea negotiations as well as an indication that “some nonverbal communication going
on about that [topic] that . . . is observable.”31 The government argues that many of the privilege
logs fail this subjective test because (1) many of them do not describe the topic of any
communication or describe the communicative value of any observable nonverbal gestures; (2)
boilerplate statements that a video reveals attorney communications or that communication was
about legal advice and strategy are too vague; and (3) physical gestures such as pointing to
documents or a laptop alone are not sufficient to establish privileged attorney-client
communications are depicted on a soundless video. The Court must review the recordings in
order to rule on these objections, and will do so on a case-by-case basis as needed. There is no
need for such particularized review in the instant case.
As detailed in the Court’s October 15, 2020 Orders, the parties’ initial efforts at
cooperation culminated in the government’s notice that it refuses to comply with discovery

30

CCA Rec. Lit., Doc. 1.

31

Id., Doc. 21 at 50.

7

orders and demands that the Court rule immediately on both the procedural and merits defenses
raised in its responses to the § 2255 motions.32 Highly summarized, the Court: (1) reaffirmed its
previous 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; (2) reaffirmed the finding that soundless video recordings may be protected
communications and found that petitioners did not waive any protection because the attorney
meeting rooms were monitored; (3) ordered the parties to supplement their responses and replies
to address jurisdictional defenses and the collateral-attack waiver by plea agreement issue; and
(4) found the government’s refusal to comply with discovery orders issued by the Court
sanctionable under Fed. R. Civ. P. 37(b)(2) and notified the government of its intent to take as
conclusively established certain facts petitioners might have proved regarding the “privy to”
element of their Sixth Amendment claims with for any petitioner who establishes that he or she
is entitled to an evidentiary hearing.33
On January 18, 2021, the Court issued an order: (1) reaffirming and expanding its holding
regarding the applicable Sixth Amendment standard; (2) addressing the collateral-waiver by plea
issue; and (3) addressing jurisdictional defenses raised by the government, including certification
requirements under Rule 2(b) of the Rules Governing Section 2255 Proceedings.34 Petitioner
filed a Signed Rule 2(b)(5) Verification on February 25, 2021.35

32

Id., Docs. 587, 588.

33

Id.

34

Id., Doc. 730 (clarified and reconsidered in part on other grounds, id., Doc. 784).

35

Id., Doc. 775.

8

D.

Recordings in this Case

Petitioner was detained at CCA from July 9, 2015 through August 30, 2016.36 On August
13, 2019, this Court released the video recordings to the FPD as a result of the Black
investigation.37 The government received two video recordings of Petitioner meeting with
Lowry at CCA on February 25 and April 29, 2016. Petitioner was prosecuted by AUSA Gregory
Hough, who stated in an affidavit that he was not aware of the video recordings of the meetings
nor did he review them.38
Pursuant to the Court’s Order, Petitioner provided a privilege log detailing the claimed
protected communication, verifying that during this meeting, Petitioner discussed matters related
to legal advice and strategy with Lowry.39 Petitioner also provided a sworn declaration from
Lowry, stating that he reviewed the video recordings listed on the privilege log, and confirmed,
with respect to the recorded meetings and each other meeting with Petitioner at CCA: (1) the
only reason he met with Soto-Saldivar was to discuss matters related to legal advice or strategy;
and (2) he had no knowledge nor did he believe that the meetings were recorded as they were
attorney-client protected, that he did not consent to such, and that he was not aware such
recordings would be dispensed to prosecutors.40
The Court reviewed the video recording in camera. As set out in the privilege log, the
Court confirms that the video recordings show Petitioner meeting with Lowry. In light of the

36

Soto-Saldivar, 18-4094-JAR-JPO, Doc. 3-1.

37

Black Order at 165. The FPD took possession of the DVR hard drives on August 16, 2019. Black, Doc.

38

Soto-Saldivar, 18-4094-JAR-JPO, Doc. 3-1.

39

CCA Rec. Lit., Doc. 182-1, at 197–98.

40

Soto-Saldivar, 18-4094-JAR-JPO, Doc. 4-1.

761.

9

analysis below, however, the details of the meetings visible in the video are not pertinent and
will not be detailed in this order.
II.

Discussion
Soto-Saldivar lacks standing to challenge either his conviction or sentence under § 2255,

although each claim fails for a different reason. The standards for the justiciability are identified
below, followed by this Court’s analysis of the timing issues relevant to the Petitioner’s
conviction challenge and the impact of statutory mandatory minimum sentence on his sentencing
challenge.
A.

Justiciability Standards

Article III of the Constitution gives federal courts the power to exercise jurisdiction only
over “Cases” and “Controversies.” Federal courts must have a statutory or constitutional basis to
exercise jurisdiction.41 And, without jurisdiction, a court must dismiss the case.42 Courts thus
must determine, either sua sponte or upon a challenge by a party “at any stage in the litigation,”
whether subject matter jurisdiction exists.43 Article III’s case-or-controversy requirement applies
at all stages of litigation.44 There are three basic elements of standing: (1) an injury, (2) a causal
connection between that injury and conduct complained of in the motion, and (3) the likelihood
that court action could redress that injury.45 To demonstrate causation, a party must show that

41

Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002).

42
Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); see also Fed. R. Civ. P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
43

Arbaugh, 546 U.S. at 506 (explaining that challenges to subject matter jurisdiction “may be raised . . . at
any stage in the litigation, even after trial and the entry of judgment.”).
44

Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990).

45

Uzuegbunam v. Preczewski, 141 S. Ct. 792, 2021 WL 850106, at *2 (Mar. 8, 2021).

10

their alleged injury is “fairly traceable” to the complained of conduct.46 “Article III . . .
require[s] proof of a substantial likelihood that the defendant's conduct caused plaintiff's injury in
fact.”47 “If ‘speculative inferences are necessary to connect [a plaintiff's] injury to the
challenged action,’ this burden has not been met.”48
B.

Timing of the Alleged Violations

The recorded meetings between Petitioner and Lowry took place on February 25 and
April 29, 2016. As noted above, the USAO did not have possession of and access to the video
recordings until May 17, 2016, and it gave up possession when it disgorged the videos to the
Court on August 9, 2016. Thus, any alleged Sixth Amendment violation could not have occurred
until after Petitioner entered a binding guilty plea on April 1, 2016, leaving no redressable injury
with respect to his conviction.
As this Court discussed in its January 18, 2021 Order, when the intrusion occurs after the
petitioner entered a plea, “the intrusion cannot be tied to any claimed unfairness or impropriety
in the conviction [or] plea . . . . Without such a nexus, these petitioners cannot proceed with
claims challenging . . . their convictions . . . .”49 Petitioner cannot demonstrate an injury or any
nexus between an injury and the USAO’s conduct, and thereby cannot satisfy the minimal
requirements for standing. The Court concludes that Petitioner lacks standing to challenge his
conviction and plea.

46
Habecker v. Town of Estes Park, 518 F.3d 1217, 1225 (10th Cir. 2014, 2008) (citing Lujan v. Def. of
Wildlife, 504 U.S. 555, 560 (1992)).
47

Nova Health Sys. v. Gandy, 416 F.3d 1149, 1156 (2005) (citations omitted).

48

Id. at 1157 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45 (1976)).

49

See CCA Rec. Lit., Doc. 730 at 53.

11

C.

Mandatory Minimum Sentence

This Court has twice considered whether the imposition of mandatory minimum sentence
precludes a sentencing challenge under § 2255.50 Initially, the Court found that it had no
authority to alter a mandatory minimum sentence even in the wake of a successful habeas
motion.51 In response to a motion for reconsideration, the Court maintained this position and
further noted that passing references to alternative forms of sentencing relief and possible
forfeiture issues did not alter its analysis.52 Soto-Saldivar and the other petitioners in this
collected litigation did not identify any authority under which the Court could provide any
sentencing redress. Incorporating this Court’s previous findings, this Court dismisses SotoSaldivar’s sentencing challenge for lack of jurisdiction.53
III.

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.”54 If the district court denies a habeas
petition on procedural grounds without reaching the merits of petitioner’s underlying
constitutional claim, “the prisoner must show both (1) ‘that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling’ and (2) ‘that jurists of

50

CCA Rec. Lit., Docs. 730 and 784.

51

Id., Doc. 730 at 49–51.

52

Id., Doc. 784 at 21–23.

53

Because lack of standing discussed in this and the subsequent section provides a sufficient basis to
dismiss Soto-Saldivar’s § 2255 motion, the Court does not address the government’s other arguments regarding
timeliness under § 2244(f)(4).
54

28 U.S.C. § 2253(c)(2).

12

reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right.’”55 For the reasons explained above, Petitioner has not met either showing
and the Court therefore denies a COA.
IT IS THEREFORE ORDERED BY THE COURT that petitioner Jorge SotoSaldivar’s Motion to Discharge and Vacate with Prejudice Under 28 U.S.C. § 2255 (Doc. 51) is
dismissed. Soto-Saldivar is also denied a certificate of appealability.
IT IS SO ORDERED.
Dated: March 31, 2021
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

55
United States v. Park, 727 F. App’x 526, 528 (10th Cir. 2018) (emphasis in original) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)).

13