10th Circuit curtails investigation of Leavenworth recordings

An inquiry to determine if recordings of attorney-client conversations made at a Kansas detention center violated inmates’ rights will continue, although in a more limited manner, following a federal appeals court ruling Monday.

A three-judge panel from the 10th U.S. Circuit Court of Appeals issued an order partially granting a writ of mandamus to the U.S. Department of Justice, which is representing the U.S. Attorney’s Office for the District of Kansas.

The U.S. Attorney’s Office is facing allegations it violated the Sixth Amendment rights of inmates at the Leavenworth Detention Center by obtaining audio and video recordings of attorneys’ conversations with their clients in connection with an investigation of drug-smuggling at the facility.

As a result of the drug-smuggling investigation, six people, including inmates and staff, were criminally charged with drug and conspiracy charges. The case is U.S. v. Black.

UPDATE: Federal judge holds Kansas prosecutors in contempt

Revelations that the U.S. Attorney’s Office possessed the recordings emerged in the midst of that criminal case, prompting U.S. District Judge Julie A. Robinson of the District of Kansas to order a three-phase investigation by a special master, David R. Cohen.

The third phase of the investigation specifically touches on the allegations of Sixth Amendment violations.

The 10th Circuit’s order does not fully end the investigation or quash subpoenas compelling staff from the U.S. Attorney’s Office to testify and produce documents, as requested by the DOJ last month in their petition for the writ.

The three-judge panel included 10th Circuit Chief Judge Timothy M. Tymkovich and Judges Jerome A. Holmes and Scott M. Matheson.

In its unsigned, unpublished ruling, the panel said Robinson’s order directed Cohen to conduct an investigation which “authorized specific tasks as they pertain to three categories of people” – defendants in the Black case, defendants in other District of Kansas cases with pending motions for relief, and “targets and subjects” of an investigation into drug-smuggling at the facility.

“We direct the district court to limit the scope of investigation and inquiries to matters related to defendants before the court in United States v. Black … and to other parties in Black who have filed Rule 41(g) motions in that proceeding,” the order said. Rule 41(g) motions are motions for the return of property – in this case, the defendants are seeking the return of the recordings.

The panel did not provide a rationale for its decision.

Holmes and Matheson dissented in part.

The order said Holmes would limit the scope of the investigation further to matters related only to the defendants who have been criminally charged in the Black case.

Matheson, on the other hand, would have allowed the investigation to proceed as it relates to defendants in other District of Kansas cases.

The detention center is operated by private prison company CoreCivic, formerly known as Corrections Corporation of America, or CCA. It houses inmates awaiting federal trial in Kansas and Missouri.

Melody Brannon, federal public defender for Kansas, declined to comment on the ruling.

A spokesman for the U.S. Attorney’s Office for the District of Kansas could not immediately be reached for comment.

The case is In re: United States, 18-3007.