United States Court of Appeals
For the First Circuit
No. 07-2587
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER A. CONLEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Circuit Judge,
O'Connor,* Associate Justice (Ret.),
and Selya, Senior Circuit Judge.
Peter J. Cyr with whom Law Offices of Peter J. Cyr was on
brief for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
June 26, 2008
*
The Hon. Sandra Day O'Connor, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
O'CONNOR, Associate Justice (Retired). Appellant claims
the introduction into evidence of phone calls between him and
Kenneth Durgin, an inmate in a correctional facility, violated the
Federal Wiretap Act, 18 U.S.C. § 2510 et seq. Because Durgin
consented to monitoring of his calls, we affirm the district
court's denial of appellant's motion to suppress.
I.
Appellant Christopher Conley first came to the
government's attention during an investigation into a drug
trafficking ring. Kenneth Durgin, who was serving time in the
Maine Correctional Center ("MCC"), was also suspected of
involvement in that ring. Witnesses identified appellant as a
potential member of the organization. But when he was called
before a grand jury and interviewed by government agents, he denied
his involvement with the group, his alias of "White Boy," and any
relationship with Durgin.
Another arm of the investigation focused on inmate
Durgin. Agent Paul McNeil informed Peter Herring, the correctional
investigator responsible for investigating alleged crimes at MCC,
that he suspected Durgin was involved in ongoing drug trafficking
operations while he was incarcerated. He requested permission to
record and listen to Durgin's phone conversations. Permission was
granted, and Herring transferred recordings of Durgin's calls to
McNeil.
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Unfortunately for appellant, the phone conversations were
all too illuminating. During those calls, Durgin spoke with
appellant. Appellant bragged that the government agents had asked
him if he knew Durgin and if he went by the alias "White Boy." He
told Durgin that he denied everything to the agents.
Appellant was charged with making a false statement to a
government agency in violation of 18 U.S.C. § 1001(a)(2). After
the district court denied his motion to suppress the phone calls,
he pleaded guilty, conditional on this appeal of the suppression
ruling.
II.
Appellant claims that the phone call should be suppressed
for two reasons. First, he claims that the phone call was
intercepted in violation of the Federal Wiretap Act, 18 U.S.C. §
2510 et seq., because Durgin had not consented to monitoring of his
calls for the purpose of investigating criminal activity outside
prison walls. Second, appellant claims that the phone call should
have been suppressed because under 18 U.S.C. § 2517, Herring was
not authorized to disclose Durgin's communications to McNeil.
Both arguments lack merit.
A. Durgin's Consent to Monitoring
Under the Federal Wiretap Act, wire or oral
communications that have been intercepted in violation of the
chapter are not admissible as evidence at trial. 18 U.S.C. § 2515.
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Section 2511(2)(c), however, authorizes telephone calls to be
monitored if one party to the call consents to the monitoring.
Thus, if Durgin granted consent to monitoring of his calls, their
introduction into evidence would not violate the Federal Wiretap
Act.
It is undeniable that Durgin consented to monitoring of
his calls for at least some purposes. In United States v. Footman,
215 F.3d 145, 155 (1st Cir. 2000), this Circuit recognized that
"[p]rison inmates have few expectations of privacy in their
communications." The inmate in that case signed a form indicating
that he understood that any use of the telephone, except in calling
an attorney, would be subject to monitoring. Stickers posted near
telephones reminded inmates their calls were monitored. And at the
commencement of every call, a recorded message indicated that the
call was monitored. Under those circumstances, the First Circuit
held that an inmate who placed a call to a non-attorney consented
to monitoring of the call for purposes of the Federal Wiretap Act.
Id. at 154-55.
Here, in order to place calls, Durgin received a PIN from
the prison. The paperwork to obtain that PIN required him to
consent to monitoring of his calls. As in Footman, placards placed
near telephones warned that calls were subject to monitoring.
Recorded messages heralded the monitoring of calls, and Durgin's
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own discussions on the telephone indicated that he was aware his
calls were being recorded.
Durgin thus unambiguously consented to monitoring of his
telephone conversations.
Appellant argues that we should nonetheless suppress the
calls, because United States v. Correa, 220 F. Supp. 2d 61, 64 (D.
Mass. 2002), held that the scope of a search is defined by the
object of the search. That object, appellant says, is defined by
MCC policy 21.3:
Prisoner telephone calls may be monitored by
the department criminal investigator, or
employee acting at the direction of the
departmental criminal investigator, if the
investigator is conducting the investigation
of an offense related to security and orderly
management of the facility. Only those
prisoner telephone calls suspected to be
related to the investigation may be monitored.
Appellant claims that Durgin's consent to monitoring was
expressly bounded by MCC policy. Because his calls were not
monitored for reasons related to either security or the orderly
management of the prison, Durgin did not lawfully consent.
Appellant's argument fails for two reasons. First, even
if Durgin's consent was limited to monitoring for the purposes of
assuring prison safety and order, Herring, the prison
administrator, allowed the monitoring because he believed Durgin
was involved in an ongoing crime. Herring explained that the
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orderly management of the facility is threatened when inmates
involve themselves in ongoing crimes.
We give great deference to a prison administrator's
determination that prison safety is at risk. "Running a prison is
an inordinately difficult undertaking that requires expertise,
planning, and the commitment of resources, all of which are
peculiarly within the province of the legislative and executive
branches of government. Prison administration is, moreover, a task
that has been committed to the responsibility of those branches,
and separation of powers concerns counsel a policy of judicial
restraint." Turner v. Safley, 482 U.S. 78, 84-85 (1987). We thus
give Herring's interpretation of the prison's own policy
considerable weight, and conclude that monitoring of Durgin's calls
was justified under MCC policy.
Appellant's argument suffers from a second fatal flaw:
Durgin was unaware of the policy at issue. The question of the
scope of monitoring of prison calls turns on "the notices that form
the basis for a finding of consent." Correa, 220 F. Supp. 2d at
64. The notices Durgin received did not reference MCC policy, and
instead asserted that all calls, save those between attorney and
client, would be monitored. When speaking with others on the
phone, Durgin warned his colleagues not to discuss ongoing crimes
because his calls were being recorded. He expressed no belief that
the calls would be monitored only for certain purposes.
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The evidence that Durgin consented to monitoring of his
calls for the purpose of investigating ongoing crimes is thus
overwhelming. His calls were thus properly intercepted under 18
U.S.C. § 2511(2)(c).
B. Legality of Disclosure under 18 U.S.C. § 2517
Appellant also argues that Herring, the correctional
officer who provided access to the phone calls, lacked the
authority to disclose those calls to Agent McNeil.
The authority to disclose communications between law
enforcement officers stems from 18 U.S.C. § 2517. Section 2517
allows law enforcement officers to share communications "to the
extent that such disclosure is appropriate to the proper
performance of the official duties of the officer making or
receiving the disclosure." But such disclosure is authorized only
when the information was obtained "by any means authorized by this
chapter." Id.
Appellant does not question that Agent McNeil, the
officer who received the disclosure, asked for the information as
a proper performance of his official duties. Instead, appellant
claims the information was not obtained by a means authorized by
the chapter. Specifically, appellant points to section 2516, which
authorizes law enforcement officers to seek court orders to
intercept communications in certain specific instances. Because no
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court ordered Durgin's communications disclosed, appellant argues,
Herring was not authorized to share the content of Durgin's calls.
Our reading of section 2517's authorization requirement
is not so limited. Section 2517 allows one officer to disclose
information to another if it was intercepted "by any means allowed
in this chapter." Id. (emphasis added). That section is contained
in Chapter 119, which also includes 18 U.S.C. § 2511(2)(c), which
states that "[i]t shall not be unlawful under this chapter for a
person acting under color of law to intercept a wire, oral, or
electronic communication, where . . . one of the parties to the
communication has given consent to such interception." Chapter 119
thus clearly allows interception of material where one party
consents.
As we have already established that Durgin consented to
the interception of his phone calls, section 2517 allowed Herring
to share the content of those calls with McNeil.
III.
Because Durgin consented to the monitoring of his calls,
their introduction into evidence was proper.
AFFIRMED.
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