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The presence of a recording device where an inmate is consulting with his attorney is the functional equivalent of the presence of a third party, and such conversations are not privileged.
This case involves the convictions of Michael Hatcher, Angelo Porrello, and Joseph Anthony Porrello on charges stemming from the armed robberies of jewelry stores in the Kansas City area. Based primarily on the testimony of the co-conspirators, they were convicted of charges including conspiracy, interference with interstate commerce by armed robbery, the use of a firearm during a crime of violence, attempted money laundering, and criminal forfeiture. The co-conspirators testified in hopes of receiving lighter sentences themselves. Defendants argued that the indictments were defective, the jury instructions were improper, and that the government failed to specify the jewelry involved in forfeiture claims. Chief of their claims are that the link between their crimes and interstate commerce was insufficient to justify their convictions, the Porrellos' argument that they were entitled to a lesser-included-offense instruction, and Angelo Porrello's challenged to the forfeiture order against him. Angelo Porello argued that the District Court erred in refusing to order the government to turn over tapes of conversations between the cooperating co-conspirators and their attorneys.
Did the District Court err in finding that attorney-client privilege applied to tape recordings between the co-conspirators and their counsel which took place while the co-conspirators were incarcerated?
The Court of Appeals found none of the arguments availing. However, the District Court had erred in finding attorney-client privilege applied to tape recordings between the co-conspirators and their counsel discussing their testimony that were recorded by the government while the co-conspirators were incarcerated. The very fact that the recordings were knowingly made was the equivalent of publishing them to a third person. The tapes were thus discoverable by defendants, although the error could have been harmless.