Soto-Simental v. USA ***DO NOT FILE IN THIS CASE - All Filings to be Made in Case 14-40130-01***

Filing 9

MEMORANDUM AND ORDER dismissing 1 MOTION to Vacate/Set Aside/Correct Sentence. Signed by Chief District Judge Julie A. Robinson on 3/23/2021. (hw)

Case 5:18-cv-04122-JAR-JPO Document 9 Filed 03/23/21 Page 1 of 13

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. 14cr-40130-DDC-1, United States v. Tomasa
Camargo-Simental, and Case No. 18-cv4122-JAR-JPO, Tomasa CamargoSimental v. United States)

United States of America.
Respondent.

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Tomasa Camargo-Simental’s Motion to
Vacate and Discharge with Prejudice under 28 U.S.C. 2255 (Doc. 43).1 Petitioner alleges the
government violated the Sixth Amendment by intentionally and unjustifiably becoming privy to
her attorney-client communications. Because she has completed both her sentence of
imprisonment and her term of supervised release, she asks the Court to dismiss the case with
prejudice to refiling. The government has responded and opposes the motion on multiple

1

Unless otherwise specified, citations prefaced with “Doc.” refer to filings and docket entries in the
underlying criminal case, Case No. 14-40130-DDC-1. Citations prefaced with “CCA Rec. Lit., Doc.” refer to filings
and entries in this consolidated case, Case No. 19-2491-JAR-JPO. With the exception of United States v. Carter,
Case No. 16-20032-JAR, Doc. 758 (D. Kan. Aug. 13, 2019) (“Black Order”), citations to filings in Case No. 1620032-JAR are prefaced with “Black, Doc.”

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grounds, including threshold jurisdictional issues.2 For the reasons explained in detail below,
Camargo-Simental’s challenge to her conviction is dismissed for lack of standing.
I.

Background
A.

Procedural History

The October 22, 2014 indictment charged Camargo-Simental with conspiracy to possess
with intent to distribute methamphetamine and two counts of using a communication facility in
the course of a drug distribution conspiracy.3 Tom Telthorst was appointed to represent
Petitioner on October 28, 2014, and Magistrate Judge K. Gary Sebelius entered a detention order
on November 4, 2014.4
On June 1, 2015, Judge Sebelius accepted Camargo-Simental’s guilty plea to the
communication facility charges, pursuant to a written plea agreement.5 On May 23, 2016, Judge
Daniel D. Crabtree sentenced Camargo-Simental to 57 months’ imprisonment followed by oneyear term of supervised release.6 The Court dismissed the conspiracy count upon entering
judgment.7
The Court appointed the Federal Public Defender (“FPD”) to represent CamargoSimental in her § 2255 proceedings on July 17, 2018.8 On September 11, 2018, the FPD filed a
motion pursuant to 28 U.S.C. § 2255 on Camargo-Simental’s behalf, setting forth a single

2

Camargo-Simental v. United States, No. 18-4122-JAR-JPO, Docs. 3, 5, 7.

, Docs. 6, 7, 8.
3

Doc. 1.

4

Docs, 8, 12

5

Docs. 21, 24.

6

Doc. 39.

7

Id.

8

Standing Order 18-3.

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ground for relief: the government violated the Sixth Amendment by intentionally and
unjustifiably intruding into her attorney-client communications.9 The government responded to
the motion and Camargo-Simental replied.10 Camargo-Simental’s custodial sentence ended on
December 19, 2018.11 Camargo-Simental was deported from the United States after completing
her sentence.
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.12 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.
Camargo-Simental 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 detained 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

9

Doc. 43.

10

Camargo-Simental, No. 18-4122-JAR-JPO, Docs. 3, 4.

11

Federal Bureau of Prisons, Inmate Locator, https://www.bop.gov/inmateloc/ (last visited Mar. 19, 2021).

12

Case 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.

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Rokusek of “jeopardiz[ing] their investigation” in Black based on information they claimed to
have gleaned from the video recordings.13 The defense also discovered that the United States
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.14
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;15 (2) the video
and audio recordings in USAO custody to be impounded;16 and (3) the government to preserve
its computer hard drives.17 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.18
On January 31, 2017, the Special Master issued the “First Report Regarding Video
Recordings.”19 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.20 This Court in Black found that the USAO did not come into possession of the

13

Id. at 70–80.

14

Id. at 29–30.

15

Black, Doc. 253 at 3.

16
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.”).
17
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.
18

Black, Doc. 146 (Appointment Order).

19

Black, Doc. 193.

20

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

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CCA videos until June 1, 2016.21 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
CCA on May 17, 2016.22 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.23
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.24 The Order also addressed the governing standard for an
intentional-intrusion Sixth Amendment claim in the Tenth Circuit.25 The Order discussed the
elements required to prove a per se violation of the Sixth Amendment under the Tenth Circuit

21

Black Order at 66.

22

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

23

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

advanced).
24

Black Order at 164–65.

25

Id. at 145–63.

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decision in Shillinger v. Haworth,26 which held 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 interest.27 Once those elements are established, prejudice is
presumed.28
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.29 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.30 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.31

26

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

27

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

28

Id.

29

Id. at 163.

30

Id. at 165.

31

Id. at 166.

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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
Amendment claims and for consolidated discovery.32 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.”33 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

32

CCA Rec. Lit., Doc. 1.

33

Id., Doc. 21 at 50.

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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
orders and demands that the Court rule immediately on both the procedural and merits defenses
raised in its responses to the § 2255 motions.34 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.35
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

34

Id., Docs. 587, 588.

35

Id.

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requirements under Rule 2(b) of the Rules Governing Section 2255 Proceedings.36 CamargoSimental timely filed a Signed Rule 2(b)(5) Verification on February 25, 2021.37
D.

Recording in this Case

On August 13, 2019, this Court released the video recordings to the FPD as a result of the
Black investigation.38 The government received one video recording of Camargo-Simental
meeting with Telthorst at CCA on April 29, 2016. Camargo-Simental was prosecuted by AUSA
Greg Hough, who stated in an affidavit that he was not aware of the video recordings of the
meetings nor did he review them.39
Pursuant to the Court’s Order, Camargo-Simental provided a privilege log detailing the
claimed protected communication, verifying that during this meeting, Camargo-Simental
discussed matters relating to legal advice and strategy with Telthorst.40 Camargo-Simental also
provided a sworn declaration from Telthorst, stating that he reviewed the video recording listed
on the privilege log, and confirmed, with respect to the recorded meeting and each other meeting
with Camargo-Simental at CCA: (1) the only reason he met with Camargo-Simental “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.41

36

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

37

Id., Doc. 775.

38

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

39

Camargo-Simental, No. 18-4122-JAR-JPO, Doc. 3-1.

40

CCA Rec. Lit., Doc. 205-2 at 27.

41

Camargo-Simental, No. 18-4122-JAR-JPO, Doc. 4-1.

761.

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The privilege log indicates that Telthorst and Camargo-Simental discussed sentencing
enhancement and potential methods to reduce her sentence.
The Court reviewed the video recordings in camera. As set out in the privilege log, the
Court confirms that the video recordings show Camargo-Simental meeting with Telthorst and an
interpreter for nearly an hour. In light of the analysis below, however, the details of the meeting
visible in the video are not pertinent and will not be discussed in this order.
II.

Discussion
The government argues that Camargo-Simental lacks standing to challenge her

conviction.
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.42 And, without jurisdiction, a court must dismiss the case.43 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.44
There are three basic elements of standing: (1) an injury, (2) a causal connection between
that injury and conduct complained of in motion, and (3) the likelihood that court action could
redress that injury.45 To demonstrate causation, a party must show that their alleged injury is

42

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

43

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.”).
44

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.”).
45

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

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“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 “When
‘[s]peculative 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 Violation

The recorded conversation between Camargo-Simental and Telthorst took place on April
29, 2016, after she entered her guilty plea on June 1, 2015, and before she was sentenced on May
23, 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 Camargo-Simental entered a guilty plea, leaving no redressable injury.
As this Court discussed in its January 18, 2021 Order, when the alleged intrusion occurs
after the petitioner entered a guilty plea, “the intrusion cannot be tied to any claimed unfairness
or impropriety in the plea . . . . Without such a nexus, these petitioners cannot proceed with
claims challenging . . . their convictions.”49 Camargo-Simental cannot demonstrate an injury or
any nexus between an injury and the USAO’s conduct, and thereby cannot satisfy the minimal
requirements for standing to challenge her conviction. Although the alleged violation occurred
prior to sentencing, Camargo-Simental has completed her term of supervised release and does

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

Nova Health Sys. v. Gandy, 416 F.3d 1149, 1156 (10th 2005) (citations omitted).

48

Id. at 1157 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45–46 (1976)).

49

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

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not challenge her sentence, including her term of supervised release.50 The Court concludes that
Camargo-Simental lacks standing to challenge her conviction and her § 2255 motion must be
dismissed for lack of jurisdiction.51
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.”52 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
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right.’”53 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 Tomasa CamargoSimental’s Motion to Vacate and Discharge with Prejudice under 28 U.S.C. 2255 (Doc. 43) is
dismissed. Camargo-Simental is also denied a certificate of appealability.

50

As discussed in its January 18, 2021 Order, a petitioner’s removal from the United States following the
end of her custodial sentence renders her § 2255 challenge to her sentence moot, including any term of supervised
release. See id. at 46–49 (citing United States v. Vera-Flores, 496 F.3d 1177, 1181–82 (10th Cir. 2007)).
51

Because this lack of standing provides a sufficient basis to dismiss Camargo-Simental’s § 2255 motion,
the Court does not address the government’s other arguments regarding timeliness under 2255(f)(4). The Court
further notes that Camargo-Simental’s § 2255 motion is subject to dismissal for failure to comply with the Court’s
order to provide the government verified responses to government interrogatories, in compliance with Fed. R. Civ.
P. 33(b)(5). See CCA Rec. Lit., Docs. 799, 806.
52

28 U.S.C. § 2253(c)(2).

53
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)).

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IT IS SO ORDERED.
Dated: March 23, 2021
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

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