Case 2:16-cr-00046-GMN-PAL Document 727 Filed 10/03/16 Page 1 of 12

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RENE L. VALLADARES
Federal Public Defender
State Bar No. 11479
WILLIAM CARRICO
State Bar No. 003042
Assistant Federal Public Defender
BRENDA WEKSLER
State Bar No. 8124
Assistant Federal Public Defender
RYAN NORWOOD
Assistant Federal Public Defender
411 E. Bonneville Avenue, Suite 250
Las Vegas, Nevada 89101
(702) 388-6577/Phone
(702) 388-6261/Fax
Ryan_Norwood@fd.org
Attorneys for Ryan W. Payne

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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UNITED STATES OF AMERICA,

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Plaintiff,
v.
RYAN W. PAYNE,
Defendant.

Case No. 2:16-cr-046-GMN-PAL
DEFENDANT RYAN W. PAYNE’S
MOTION TO COMPEL AND FOR
ORDER TO CEASE AND DESIST
RECORDING
(Evidentiary Hearing Requested)

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Certification: This Motion is timely filed.

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Defendant Ryan W. Payne, by and through his counsel of record, WILLIAM

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CARRICO, RYAN NORWOOD and BRENDA WEKSLER, Assistant Federal Public

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Defenders, moves this Court for an order: (1) compelling the production of discovery, (2)

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instructing Corrections Corporation of America to cease and desist recording privileged

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attorney-client phone communications and (3) setting an evidentiary hearing on this matter. A

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Memorandum of Points and Authorities is attached hereto.

Case 2:16-cr-00046-GMN-PAL Document 727 Filed 10/03/16 Page 2 of 12

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DATED this 3rd Day of October, 2016.
RENE L. VALLADARES
Federal Public Defender
By: /s/ William Carrico
WILLIAM CARRICO
Assistant Federal Public Defender
By: /s/ Ryan Norwood
RYAN NORWOOD
Assistant Federal Public Defender
By: /s/ Brenda Weksler
BRENDA WEKSLER
Assistant Federal Public Defender

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Case 2:16-cr-00046-GMN-PAL Document 727 Filed 10/03/16 Page 3 of 12

MEMORANDUM OF POINTS OF AUTHORITIES

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I.

STATEMENT OF FACTS

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On March 2, 2016, the government filed a superseding 16-count indictment charging

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Mr. Payne and 18 co-defendants with various violations of federal law arising out of a

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confrontation with law enforcement in April 2014. ECF No. 27. Mr. Payne is currently

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detained pending trial at the Nevada Southern Detention Center in Pahrump, Nevada, a jail

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facility operated by the Corrections Corporation of America (“CCA-Pahrump”).

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Undersigned counsel has developed a good faith belief that CCA-Pahrump is recording

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pretrial detainees’ telephone conversations with their attorneys and handing over copies of those

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recordings to the U.S. Attorney’s Office for the District of Nevada (“USAO”). A member of

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the Criminal Justice Act (“CJA”) panel appointed in a separate case by the District of Nevada

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has informed the Office of the Federal Public Defender that the USAO disclosed in discovery

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several audio recordings of privileged, confidential attorney-client calls between the CJA

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attorney, that attorney’s associate, and their client, who is detained at CCA-Pahrump. In

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addition to disclosing these privileged, confidential recorded attorney-client calls to the CJA

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attorney, the USAO provided them to counsel for the co-defendants in that case. 1

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The

CCA’s

Leavenworth

Detention

Center

(“CCA-Leavenworth”)

recently

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acknowledged in a separate case that it video-recorded confidential, privileged in-person

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meetings between detained inmates and their attorneys at another of its facilities in Kansas.

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United States v. Black et al., No. 2:16-cr-20032-JAR, Doc. 124 (D. Kan. Aug. 30, 2016). In

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Black, CCA-Leavenworth provided the Kansas USAO video of numerous attorney-client

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meetings in response to a subpoena filed as part of a criminal investigation. Id. at Doc. 110, p.

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3. The district court held in Black that those “videos contain attorney-client communications

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that are confidential and privileged.” Id. at Doc. 114, p. 1.

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Notably, it does not appear the USAO subjected the recordings of attorney-client calls
to a “taint review” before disseminating those recordings.
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Undersigned counsel has not received information that CCA-Pahrump records video of

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attorney-client meetings. However, the ongoing Kansas litigation and information in Black and

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the information received from the local CJA panel attorney suggest CCA’s recording of

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privileged attorney-client communications may be systematic and deliberate.

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While detained at CCA-Pahrump, Mr. Payne has used the facility’s phone system to

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speak with counsel. Undersigned counsel has a good faith belief that the co-defendants in this

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case, who are detained at CCA-Pahrump, have likewise used the facility’s phone system to call

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their respective counsel. Based on the above information, undersigned counsel believes CCA-

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Pahrump has recordings of privileged, confidential attorney-client calls between Mr. Payne and

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his counsel, as well as between the co-defendants in this case and their respective counsel. The

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government’s discovery in this case includes numerous statements made by Mr. Payne;

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however, the government has not provided Mr. Payne with copies of recordings made between

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Mr. Payne and his counsel.

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Mr. Payne therefore moves, pursuant to Federal Rule of Criminal Procedure

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16(a)(1)(B), to compel the production of any recordings of calls between Mr. Payne and his

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counsel while he has been detained at CCA-Pahrump. He also requests that this Court: (1) enter

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an order directing CCA-Pahrump to immediately cease and desist further recording of attorney-

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client phone calls and (2) set an evidentiary hearing in this matter.

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II.

LEGAL AUTHORITY AND ARGUMENT

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A.

Motion to Compel

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Rule 16(a)(1)(B) provides, “Upon a defendant’s request, the government must disclose

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to the defendant, and make available for inspection, copying, or photographing, . . . any relevant

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written or recorded statement by the defendant if: [1] the statement is within the government’s

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possession, custody, or control; and [2] the attorney for the government knows—or through due

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diligence could know—that the statement exists.” For Rule 16 purposes, “[i]nformation is in

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the possession of the government if the prosecutor has knowledge of and access to the

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documents sought by the defendant.” United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010)

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(internal quotation marks omitted). The Ninth Circuit treats virtually all defendant statements

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as “relevant” within the meaning of Rule 16:

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. . . Rule 16(a)(1)(A) can fully serve its intended purpose only if the
Government takes a broad view of what is relevant for purposes of that
provision. We believe the Government should disclose any statement made by
the defendant that may be relevant to any possible defense or contention that
the defendant might assert. Ordinarily, a statement made by the defendant
during the course of the investigation of the crime charged should be presumed
to be subject to disclosure, unless it is clear that the statement cannot be
relevant. Where the Government is in doubt, the written or recorded statement
should be disclosed, if a proper request is made.

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United States v. Bailleaux, 685 F.2d 1105, 1114 (9th Cir. 1982), abrogated on other grounds

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as recognized by United States v. Miller, 874 F.2d 1255, 1268-69 (9th Cir. 1989).

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As demonstrated above, the USAO has “knowledge of and access to” the calls pretrial

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detainees at CCA-Pahrump, like Mr. Payne, make to their attorneys. Stever, 603 F.3d at 752.

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The USAO apparently is also able, with the exercise of “due diligence,” to know when

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defendant statements made on CCA-Pahrump telephone calls exist.

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statements Mr. Payne has made are presumptively relevant under the “broad” discovery right

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afforded him by Rule 16. Bailleaux, 685 F.2d at 1114; Muniz-Jaquez, 718 F.3d at 1183.

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Accordingly, Rule 16 requires the USAO to turn over any statements made by Mr. Payne on

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phone calls recorded by CCA-Pahrump. To date, he has received no such discovery. Mr. Payne

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therefore requests the Court enter an order directing the USAO to produce any such statements.

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B.

Id.

And any such

Order to Cease and Desist

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The Sixth Amendment protects defendants’ confidential
communications with counsel.
“The Sixth Amendment provides that ‘[i]n all criminal prosecutions, the accused shall

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enjoy the right . . . to have the Assistance of Counsel for his defence.’” Nordstrom v. Ryan,

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762 F.3d 903, 909 (9th Cir. 2014) (quoting U.S. Const. amend. VI). “The right to counsel ‘is a

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fundamental component of our criminal justice system,’ and ‘[l]awyers in criminal cases are

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necessities, not luxuries.’” Id. (quoting United States v. Cronic, 466 U.S. 648, 653 (1984)

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(brackets in original)). “The Sixth Amendment is meant to assure fairness in the adversary

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criminal process. The very premise of our adversary system of criminal justice is that partisan

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advocacy on both sides of a case will best promote the ultimate objective that the guilty be

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convicted and the innocent go free.” United States v. Danielson, 325 F.3d 1054, 1066 (9th Cir.

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2003) (citation and internal quotation marks omitted). Accordingly, the “Supreme Court has

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long recognized that ‘the Sixth Amendment right to counsel exists, and is needed in order to

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protect the fundamental right to a fair trial.’” Varghese v. Uribe, 736 F.3d 817, 824 (9th Cir.

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2013) (quoting Strickland v. Washington, 466 U.S. 668, 684 (1984)).

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To vindicate that fair trial right, a defendant must be able to communicate with his

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attorney. “A criminal defendant’s ability to communicate candidly and confidentially with his

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lawyer is essential to his defense. In American criminal law, the right to privately confer with

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counsel is nearly sacrosanct.” Nordstrom, 762 F.3d at 910. Indeed, it “is well established that

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an accused does not enjoy the effective aid of counsel if he is denied the right of private

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consultation with him.” Id. (internal quotation marks omitted); see also Bittaker v. Woodford,

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331 F.3d 715, 723 n.7 (9th Cir. 2003) (en banc) (“Utmost candor between an attorney and client

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is essential to effective assistance of counsel.” (brackets and internal quotation marks omitted)).

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The law secures this right to confidential communication through the attorney-client

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privilege, which “protects confidential disclosures made by a client to an attorney in order to

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obtain legal advice . . . as well as an attorney’s advice in response to such disclosures.” United

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States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (ellipsis in original) (internal quotation

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marks omitted); see Fed. R. Evid. 501. The privilege “protects fundamental liberty interests by

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allowing individuals to seek the legal advice they need to guide them through the thickets of

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complex laws.” In re Napster, Inc. Copyright Litigation, 479 F.3d 1078, 1090 (9th Cir. 2007)

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(brackets and internal quotation marks omitted), abrogated on other grounds by Mohawk

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Indus., Inc. v. Carpenter, 558 U.S. 100 (9th Cir. 2009). “The assurance of confidentiality

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promotes open attorney-client communications, which are central to the legal system and the

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adversary process.” Id. (internal quotation marks omitted).

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Its pedigree makes the attorney-client privilege “arguably [the] most fundamental of the

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common law privileges recognized under Federal Rule of Evidence 501.” In re Napster, 479

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F.3d at 1090; see also Gomez v. Vernon, 255 F.3d 1118, 1131 (9th Cir. 2001) (“The attorney-

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client privilege has been recognized as ‘the oldest of the privileges for confidential

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communications known to the common law.’” (quoting Upjohn Co. v. United States, 449 U.S.

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383, 389 (1981))); In re Grand Jury Proceedings Grand Jury No. 97-11-8, 162 F.3d 554, 556

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(9th Cir. 1998) (“The attorney-client privilege is not only the oldest privilege known to the

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common law, but the attorney-client privilege is also, perhaps, the most sacred of all legally

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recognized privileges, and its preservation is essential to the just and orderly operation of our

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legal system.” (internal quotation marks omitted)).

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Given the importance of the privilege, courts guard zealously against government

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interference with attorney-client communications. They recognize the “Constitution’s . . .

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guarantees of due process of law and effective representation by counsel[ ] lose most of their

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substance if the Government can with impunity place a secret agent in a lawyer’s office to

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inspect the confidential papers of the defendant and his advisers, to listen to their conversations,

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and to participate in their counsels of defense.” Bittaker, 331 F.3d at 723 n.7 (internal quotation

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marks omitted) (alterations in original). Defendants “have to be able to talk to their lawyers

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candidly without fear that what they say to their own lawyers will be transmitted to the

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government.” United States v. Chen, 99 F.3d 1495, 1499 (9th Cir. 1996). Therefore, “[w]hen

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the government deliberately interferes with the confidential relationship between a criminal

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defendant and defense counsel, that interference violates the Sixth Amendment right to counsel

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if it substantially prejudices the criminal defendant.” Williams v. Woodford, 384 F.3d 567, 584-

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85 (9th Cir. 2002).

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2.

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To protect Mr. Payne’s Sixth Amendment rights, this Court
should order CCA-Pahrump to cease and desist from recording
Mr. Payne’s phone calls to counsel.

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Mr. Payne’s ability to prepare for trial requires that his communications with counsel

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be kept confidential.

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government—or, as in the unrelated District of Nevada case described above, to counsel for his

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co-defendants—will interfere with his ability to mount a vigorous defense.

Dissemination of Mr. Payne’s attorney-client conversations to the

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Given the distance between undersigned counsel’s office and CCA-Pahrump, phone

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calls are the only feasible option for remaining in regular communication with counsel. But

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absent the protections of the attorney-client privilege, Mr. Payne will be deterred from using

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the phone to speak with counsel about trial strategy, the government’s evidence, possible leads

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for investigation, or motions he might wish to file. See Nordstrom, 762 F.3d at 910 (“It takes

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no stretch of imagination to see how an inmate would be reluctant to confide in his lawyer about

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the facts of the crime, perhaps other crimes, possible plea bargains, and the intimate details of

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his own life and his family members’ lives, if he knows that a guard is going to be privy to

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them, too.”); Weatherford v. Bursey, 429 U.S. 545, 554 n.4 (1977) (“One threat to the effective

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assistance of counsel posed by government interception of attorney-client communications lies

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in the inhibition of free exchanges between defendant and counsel because of the fear of being

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overheard.”).

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Mr. Payne’s decision to bring this matter to the Court’s attention stems from a fear of

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waiver. Now that he is aware CCA-Pahrump records pretrial detainees’ calls, Mr. Payne risks

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waiving the attorney-client privilege by continuing to communicate with counsel over the

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phone. “An express waiver occurs when a party discloses privileged information to a third

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party who is not bound by the privilege, or otherwise shows disregard for the privilege by

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making the information public.” Bittaker, 331 F.3d at 719. Because CCA-Pahrump and the

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USAO are not bound by Mr. Payne’s attorney-client privilege, disclosure of privileged

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information in calls he knows are being recorded could constitute a waiver of the privilege.

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See, e.g., United States v. Mejia, 655 F.3d 126, 133-34 (2nd Cir. 2011) (“[W]here an inmate is

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aware that his or her calls are being recorded, those calls are not protected by a privilege. . . .

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The fact that the call was being recorded amounts essentially to the presence of an

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unsympathetic third party—BOP—listening in.”); United States v. Hatcher, 323 F.3d 666, 674

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(8th Cir. 2003) (“The presence of the prison recording device destroyed the attorney-client

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privilege. Because the inmates and their lawyers were aware that their conversations were

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being recorded, they could not reasonably expect that their conversations would remain private.

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The presence of the recording device was the functional equivalent of the presence of a third

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party.”).

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Mr. Payne can avoid waiving the privilege only by ensuring his communication with

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counsel is not disclosed to any third parties. Accordingly, he asks the Court to enter an order

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directing CCA-Pahrump to immediately cease and desist from recording his phone calls to

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counsel. Denying Mr. Payne the ability to speak confidentially with counsel threatens a

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violation of his Sixth Amendment right to the effective assistance of counsel. See Bittaker, 331

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F.3d at 723 n.7 (“[D]oing away with the privilege in all criminal cases would raise a nontrivial

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question whether defendants would still be getting effective assistance. . . . It is doubtful that

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constitutional standards for adequacy of legal representation could be satisfied if a defendant’s

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communications to his attorney were subject to unrestricted scrutiny by the prosecutor.”

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(internal quotation marks omitted) (emphasis in original)). It also deprives him of an “essential”

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safeguard for the “preservation of liberty against a powerful government.” Chen, 99 F.3d at

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1499. And it would frustrate the “broader public interests in the observance of law and

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administration of justice” that “full and frank communication between attorneys and their

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clients . . . promote[s].” United States v. Christensen, --- F.3d ---, 2015 WL 11120665, at *28

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(9th Cir. Aug. 25, 2016) (quoting Upjohn, 449 U.S. at 389).

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Because the remedy he seeks is prospective—i.e., an end to practices that have “chilled”

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his “right to privately confer with counsel,” Nordstrom, 762 F.3d at 911—Mr. Payne need not
show the possibility that CCA-Pahrump has recorded his calls to counsel has prejudiced him.
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See id. (explaining that where a prisoner seeks to “enjoin[] the continuation of an

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unconstitutional” intrusion into the attorney-client relationship, there is no need for the court to

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“examine whether the violation caused prejudice requiring the reversal of the conviction”). But

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even if Mr. Payne must demonstrate prejudice at this stage, he can make that showing. By

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apparently requesting tape-recorded conversations from CCA-Pahrump in the unrelated District

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of Nevada case described above, the government has “acted affirmatively to intrude into the

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attorney-client relationship and thereby to obtain . . . privileged information.” Danielson, 325

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F.3d at 1071. This conduct constitutes a prima facie showing that shifts the burden to the

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government “to show that there has been . . . no prejudice to the defendant[ ] as a result of these

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communications.” Id. (alterations in original) (internal quotation marks omitted).
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The Court should hold an evidentiary hearing to determine the
extent of any involuntary disclosure of Mr. Payne’s privileged
statements.

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If Mr. Payne’s calls from CCA-Pahrump have been recorded and thereby involuntarily

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disclosed, he can preserve the attorney-client privilege only by “ma[king] efforts

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reasonably designed to protect the privilege. . . . Conversely . . . the privilege [will be deemed]

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to be waived if [Mr. Payne] fails to pursue all reasonable means of preserving the confidentiality

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of the privileged matter.” Gomez, 255 F.3d at 1131-32 (internal quotation marks omitted)

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(ellipses and second brackets in original). It is difficult to determine what reasonable efforts

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Mr. Payne must make in this case without knowing the extent of any possible inadvertent

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waiver. He therefore requests the Court hold an evidentiary hearing to investigate:

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(1)

the extent to which CCA-Pahrump records detainees’ calls to their attorneys;

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(2)

CCA-Pahrump’s policies regarding turning over to the USAO recordings of

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detainees’ calls to their attorneys;
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the USAO’s rules and procedures for using CCA-Pahrump’s recordings of
detainees’ calls to prosecute criminal cases; and

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(4)

whether the USAO is in possession of calls Mr. Payne has made to his counsel
while detained at CCA-Pahrump.
CONCLUSION

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Counsel has a good faith belief that CCA-Pahrump may be recording Mr. Payne’s

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attorney-client communications. If those communications have been recorded, they should be

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immediately turned over to Mr. Payne, pursuant to Rule 16(a)(1)(B), and Mr. Payne therefore

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moves the Court to compel their production. Recording attorney-client calls also threatens a

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violation of Mr. Payne’s Sixth Amendment right to the assistance of counsel. He therefore

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requests the Court: (1) order CCA-Pahrump to immediately cease and desist any further

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recording of attorney-client calls and (2) set an evidentiary hearing on this matter.
DATED this 3rd day of October, 2016.
Respectfully submitted,
RENE VALLADARES
Federal Public Defender
By: /s/ William Carrico
WILLIAM CARRICO
Assistant Federal Public Defender
By: /s/ Ryan Norwood
RYAN NORWOOD
Assistant Federal Public Defender
By: /s/ Brenda Weksler
BRENDA WEKSLER
Assistant Federal Public Defender

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CERTIFICATE OF ELECTRONIC SERVICE

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The undersigned hereby certifies that she is an employee of the Federal Public Defender

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for the District of Nevada and is a person of such age and discretion as to be competent to serve

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papers.

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That on October 3, 2016, she served an electronic copy of the above and foregoing

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DEFENDANT RYAN W. PAYNE’S MOTION TO COMPEL AND FOR ORDER TO

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CEASE AND DESIST RECORDING (Evidentiary Hearing Requested) by electronic service

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(ECF) to the person named below:

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DANIEL G. BOGDEN
United States Attorney
ERIN M. CREEGAN
Assistant United States Attorney
NADIA JANJUA AHMEN
Assistant United States Attorney
NICHOLAS DICKINSON
Assistant United States Attorney
STEVEN MYHRE
Assistant United States Attorney
501 Las Vegas Blvd. South
Suite 1100
Las Vegas, NV 89101
/s/ Lauren Pullen
Employee of the Federal Public Defender

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