I consider the main issue to be whether
the monitored communications were legally turned over to the U.S.
Attorney's Office. Most of us are aware that an inmate in a federal
facility has minimal right to privacy and when a person signs-up for
a Corrlinks account to exchange emails with an inmate, they are
acknowledging that the communications are monitored and by clicking
the "accept" button, they're accepting this.
The Bureau of Prisons (BOP) monitors
every form of inmate communication, from snail-mail letters to
telephone calls to emails. The inmate has no right to privacy from
the BOP. The party communicating with the inmate may read the
Corrlinks FAQ section and No. 9 states:
Are my messages monitored?
The institution housing an inmate
determines its need for monitoring messages, letters and other
communication. If desired, the institution may monitor any or all
messages for any or all inmates. CorrLinks staff does not monitor
your messages but may need to assist the institution in such
monitoring from time to time.
The problem lies in who is given these
communications and how they're used. BOP monitors for the purpose of
security and maintaining order in the institution. This is clear and
understandable. However, is it legal for BOP to turn those
communications over to other government agencies when there is no
mention or evidence of any sort of crime?
In the case of Ana DeStefano, her
communications with Paul Bergrin were turned over to the government
to be used as potential impeachment material. Both Ms. DeStefano and
Bergrin were unaware that their personal communications would be used
by the government. Keep in mind that there was nothing illegal or in
any way related to a crime in the communications and they were very
personal. Clearly Ms. DeStefano was shocked that AUSA John Gay used
the communications to assist his questioning of her when she
testified.
Was it legal for the government to make
such use of Ms. DeStefano's personal communications? Did BOP turn all
communications over as the result of an ex parte court order,
or are all forms of communications sent to the US Attorney's Office
and the FBI?
In the situation of Lemont Love, his
communications with an outside party (his younger brother) were
turned over to the government for the purpose of impeachment (or
attempted impeachment) in this trial. Mr. Love is in a New Jersey
State prison. Does he have a lawsuit or is it absolutely legal for
the State of NJ to turn over his communications to any government
agent that asks? Was there an ex parte order that the defense
was unaware of?
Doesn't such a practice give the
government an unfair advantage at trial? If the US Attorney's Office
and the FBI received all of Bergrin's communications prior to trial,
they already knew the entire defense strategy. When one side is aware
of every move the other side intends to make in advance, that is the
definition of unfair advantage.
Finally, did the government have any
obligation to disclose the use of the monitored communications prior
to the defense witness testimony?
It is entirely possible that these
questions will end-up with the SCOTUS. There is no clear precedent or
applicable law from what I have been told.
IV. THE GOVERNMENT’S UNAUTHORIZED
ACCESS TO AND MONITORING OF BERGRIN’S COMMUNICATIONS WITHOUT A
COURT ORDER WERE IMPROPER AND CAUSED ACTUAL AND EXTREME PREJUDICE TO
BERGRIN’S DEFENSE.
The government's use and abuse of
electronic surveillance in the seizure of Bergrin's emails and
telephone conversations, while incarcerated at the Metropolitan
Detention Center, Brooklyn, New York clearly violated the Department
of Justices’ Electronic Surveillance Manual and Title III of the
Wire Intercept Act as well as the auspices and spirit of the Fourth
Amendment prohibition against unreasonable search and seizures.
Inmates consent to the screening of
telephone conversations and emails while detained within the Bureau
of Prisons. This consent, however, is not limitless. It is implicitly
understood that interception and monitoring is for security purposes
only. These communications are not intended to provide the
prosecution with unfettered access to an inmate’s personal and
legal communications. The purpose of the monitoring, and consenting
to the monitoring, is not to give the prosecution a means to gather
evidence for impeachment purposes. Nor is the monitoring intended to
be used to scrutinize defense strategies and gather intelligence to
determine defense posture in the defense of charges. Moreover, it is
improper to use this information to detrimentally affect the
defense’s case. Yet, that is precisely what the Government did in
this case.
The detention of an inmate, especially
a pro se defendant, by its very nature inhibits case
preparation and detrimentally affects the ability to prepare a
defense. It deleteriously precludes a defendant from properly
preparing his case, affects one's ability to properly prepare
witnesses for testimony, stymies the ability to concentrate fully on
the legal and factual aspects of the defense, and limits the ability
to review discovery and fully research issues. The time allotted for
case preparation is materially affected and Sixth Amendment rights
are extremely hampered. A pro se incarcerated inmate does not
have the same opportunities and ability to attain an equivalent level
of preparedness as the government as he has diminished resources and
assistance.
Consequently, inmates rely on the
ability to effectively communicate by use of the telephone and email
with co-counsel, paralegals, investigators, experts, family and
friends. In sum, Defendants materially use emails and the telephone
to foster case preparation. It is impossible to prepare a case for
trial without material reliance on them.
The Department of Justice policy is
that, in the event that a telephone conversation, monitored routinely
by prison officials for the purpose of prison security, is found to
contain information relating to the violation of law, prison
officials may disclose that information to the proper law enforcement
authorities for prosecution. Law enforcement authorities outside the
Bureau of Prisons are not supposed to be given carte blanche
and unfettered access to an inmate’s monitored telephone calls and
electronic communications. In the cases when outside law enforcement
agencies ask the Bureau of Prison officials to monitor and disclose
future telephone and electronic communications of specific inmates in
connection with a criminal investigation being conducted of
activities outside the confines of the prison, not affecting prison
security or administration, this monitoring is only properly
conducted when an interception order has been procured under the
authority of Title III.2
In the case sub judice, the
government obtrusively, and in contravention of Bergrin's Fourth
Amendment, Constitutional and due process rights, seized all of
Bergrin's e mails and telephone conversations, without judicial
authorization or prior notice to Bergrin. The communications were
devoid of any security issues to the Bureau of Prisons and did not
contain any indicia of law violations. The seizure paralyzed
Bergrin's ability to communicate with Stand-By-Counsel, enabled the
government to obtain advance notice of defense trial strategy and the
scope and substance of defense investigation and was done with for no
other purpose than to unjustly and unfairly obtain impeachment
materials for use at trial. It also enabled the government to further
the course of its investigation and to prepare their witnesses to
counter the defense case. All matters that weighed heavily in the
outcome of the trial and gave the government unfair advantage;
especially since Bergrin was a Pro Se litigant whom relied
heavily on communicating with his defense team, telephonically and
through the use of the email system. The prejudice suffered by
Bergrin and his case as the result of the government's actions was
extremely detrimental. It resulted in denying Bergrin a fair trial.
The extent of the monitoring, how the
Government used this information to counter the defense’s strategy
and impede the defense’s investigation and trial preparation, and
whether other actions were taken to interfere with the defense must
be ascertained to determine the full impact on Bergrin’s due
process rights and, in particular, whether acts prejudicial to the
administration of justice were engaged in by members of the
Department of Justice.
Accordingly, the defense respectfully
requests that this Honorable Court Order a hearing to compel the
government to provide a copy of all communications seized and in its
possession, disclose the manner in which the Government seized these
communications and the extent to which they were used. Moreover, it
is respectfully requested that, if the government obtained telephone
conversations and mails of defendant, which included legal
communications with members of the defense trial team, that this
Court find that defendant's Due Process and Sixth Amendment rights
were violated, set aside the verdict and dismiss the Indictment.
I thank the Court for its thoughtful
consideration of these issues.
