United States v. Faulkner, 439 F.3d 1221, 10th Cir. (2006)
United States v. Faulkner, 439 F.3d 1221, 10th Cir. (2006)
F I L E D
March 6, 2006
Elisabeth A. Shumaker
Clerk of Court
No. 05-3061
MARIO FAULKNER,
Defendant - Appellant.
______________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 05-3073
Theodore J. Lickteig, Law Offices of Theodore J. Lickteig, Overland Park, Kansas, for
the Defendant - Appellant, Mario Faulkner.
Stephen B. Chapman, Chapman & White, LLC, Olathe, Kansas, for the Defendant Appellant, Antonyo Ladarrell Rodgers.
Terra D. Morehead, Assistant United States Attorney (Eric F. Melgren, United States
Attorney, with her on the brief), Kansas City, Kansas, for Plaintiffs-Appellees.
Before TACHA , Chief Judge, ANDERSON , and HARTZ , Circuit Judges.
HARTZ , Circuit Judge.
-2-
FACTUAL BACKGROUND
CCA is a privately operated prison which houses pretrial detainees under a
contract with the United States Marshals Service. Upon arrival at CCA, detainees
receive an orientation manual which states, among other things, that the
[t]elephones are subject to recording and monitoring. R. Vol. Five at 10. In
addition, detainees are told during orientation that their calls could be recorded,
id. at 11, they receive an inmate handbook which states that [t]elephone
conversations may be monitored and/or recorded for security reasons, id. at 13,
and signs posted over each of the general-population phones announce that calls
are subject to monitoring, id. at 14. Moreover, it appears that when a call is
-3-
placed from CCA, a recorded voice states, This call is subject to monitoring and
recording. Id. at 23-24. All telephone calls are, in fact, recorded.
It was from these prison phones that Hargrove made calls and spoke with
Appellants to conspire to murder Shedrick Kimbrel. The calls were monitored
and recorded by CCA, and five of these calls were admitted as evidence at trial.
II.
to the recording. See United States v. Footman, 215 F.3d 145, 154 (1st Cir.
2000); Amen, 831 F.2d at 378-79 (2d Cir.); Hammond, 286 F.3d at 192 (4th Cir.);
United States v. Horr, 963 F.2d 1124, 1126 (8th Cir. 1992); United States v. Van
Poyck, 77 F.3d 285, 292 (9th Cir. 1996). The only circuit opinion to question this
application of the consent exception is Feekes, 879 F.2d 1562. In that opinion the
Seventh Circuit upheld the recording of prisoners conversations under the lawenforcement exception to the Wiretap Act but added the following dictum in
response to the contention that the consent exception applied because the
prisoners had been notified that their calls would be monitored:
To take a risk is not the same thing as to consent. The implication of
the argument is that since wiretapping is known to be a widely
employed investigative tool, anyone suspected of criminal
(particularly drug) activity who uses a phone consents to have his
phone tappedparticularly if he speaks in code, thereby manifesting
an awareness of the risk.
Id. at 1565.
We are not persuaded to depart from the unanimous view of the holdings by
our fellow circuit courts. The issue is solely one of statutory interpretation. The
Second Circuit observed that [t]he legislative history shows that Congress
intended the consent requirement [exception?] to be construed broadly, Amen,
831 F.2d at 378, noting in support that the Senate Report on the Wiretap Act said
of the consent exception: Consent may be expressed or implied. Surveillance
devices in banks or apartment houses for institutional or personal protection
-7-
would be impliedly consented to. Id. (quoting S. Rep. No. 1097, 90th Cong., 2d
Sess., reprinted in 1968 U.S. Code Cong. & Admin.News 2112, 2182). Of
course, there is a difference between broad and unlimited. We agree with Feekes
that engaging in drug trafficking does not in itself imply consent to a wiretap.
But that is not this case. We are dealing here with incarcerated persons who
receive very specific warnings about particular phones. To be sure, the prisoners
at CCA did not have the opportunity to choose another, unmonitored telephone.
But loss of some choice is a necessary consequence of being confined, and
[p]rison inmates have few expectations of privacy in their communications.
Footman, 215 F.3d at 155. Rarely are choices in life totally free from opportunity
costs; something must be foregone whenever one comes to a fork in the road. The
real issue is whether imposition of a condition is acceptable, so that a choice
subject to that condition is considered a voluntary, consensual one. See Brady v.
United States, 397 U.S. 742, 749-52 (1970) (guilty plea was voluntary even
though entered to avoid threat of death penalty). Because of the undeniable need
to control prisoner communications to the outside world, we have no hesitation in
concluding that a prisoners knowing choice to use a monitored phone is a
legitimate consent under the Wiretap Act.
In this case Hargrove impliedly consented to recording of the
conversations. As previously noted, detainees at CCA receive numerous warnings
-8-
that their calls may be recorded. Hargrove was undoubtedly well aware of these
warnings; during a conversation with Mr. Rodgers he said, I cant hardly talk on
this phone, cause you know they got it screened. . . . [They] got this phone
tapped so I gotta be careful. R. Vol. Four, Gov. Ex. 13 at 14. (The coded
language used by Appellants indicates that they too were aware that the calls were
being monitored.)
Appellants complain that they were not the ones who answered the calls
placed by Hargrove and they did not hear the recorded voice. But this is
irrelevant because the consent of one party is enough, Footman, 215 F.3d at 154
(It is settled law that only one party need consent to the interception of the
calls.), and Hargrove consented. The district court therefore properly held that
the consent exception applied and the conversations were not excludable under
the Wiretap Act.
III.
CONFRONTATION CLAUSE
Appellants also contend that admission of the recorded conversations
-9-
-11-
(...continued)
statement by a conconspirator of a party during the course and in furtherance of the
conspiracy.). The explanation for this nomenclature is that the rationale for the
admissibility of these (and other statements categorized as admissions) is that their
admissibility in evidence is the result of the adversary system rather than satisfaction of
the conditions of the hearsay rule. Fed. R. Evid. 801 advisory committee notes on
1972 proposed rules. This explanation, however, does not change the Confrontation
Clause analysis; the Supreme Court consistently refers to the admissibility of
statements in furtherance of a conspiracy as a hearsay exception[ ]. Crawford, 541
U.S. at 56; see Bourjaily v. United States, 483 U.S. 171 (1987) (repeatedly referring to
coconspirator statements as hearsay).
1
-12-
hearsay. . . . The effect is to exclude from hearsay the entire category of verbal
acts and verbal parts of an act, in which the statement itself affects the legal
rights of the parties or is a circumstance bearing on conduct affecting their
rights. Fed. R. Evid. 801 advisory committees note to subdivision (c). Thus,
Professor Mueller writes:
[C]oconspirator statements are sometimes hearsay, and sometimes
not. In the trial of Thomas Hardy in 1794, Chief Justice Eyre offered
the simplest illustration of this point: If three persons are prosecuted
for conspiracy, the conversation in which they plan the venture and
agree to participate is not hearsay, and the words spoken by each may
be proved against all, but a later statement by one of them admitting
his involvement would be hearsay if offered against the others to
prove that point.
Christopher B. Mueller, The Federal Coconspirator Exception: Action, Assertion,
and Hearsay, 12 Hofstra L. Rev. 323, 326 (1984); see, e.g., United States v. Lim,
984 F.2d 331, 336 (9th Cir. 1993) (statements between defendant and unindicted
coconspirator are not hearsay; they are verbal acts admissible to show that a
conspiratorial agreement existed); New York v. Hendrickson Bros., Inc., 840 F.2d
1065, 1075 (2d Cir. 1988) (same); United States v. Miller, 771 F.2d 1219, 1233
(9th Cir. 1985) (unnecessary to consider whether certain testimony was
admissible as a co-conspirator statement or whether it violated appellants
confrontation rights because statements not offered for their truth; their
significance lies solely in the fact that [the coconspirators] made them); United
States v. Hamilton, 689 F.2d 1262, 1270 n.4 (6th Cir. 1982) (orders placed for
-13-
CONCLUSION
We AFFIRM the judgment below.
-14-