Rejecting the Justice Department's plea that only limited evidence be dismissed, a federal judge in Arizona has sanctioned the government and thrown out the entire wiretap in the ongoing prosecution of former Rep. Rick Renzi.
Judge David Bury of the U.S. District Court for the District of Arizona adopted the report and recommendation of a magistrate judge who ruled in March that federal prosecutors should not be allowed to use any evidence flowing from the wiretap, which was first set up in October 2006. Click here for Bury’s order. Renzi is charged with conspiracy and money laundering in an alleged insurance fraud scheme.
Bury said the government’s “unreasonable wholesale interception” of calls known to be attorney-client communication justifies dismissing all the communication from the wiretap. The prosecution, however, was not exposed to the bulk of the privileged calls that are at issue. Bury, therefore, declined to dismiss the indictment against Renzi.
“The Court is entirely confident that the prosecution team did not conduct its pre-trial investigation or develop its trial strategy with the benefit of advanced knowledge of Defendant Renzi’s trial strategies,” Bury said in the ruling.
The wiretap order provided for the government’s use of a “taint team,” setting up a wall between investigators and prosecutors to allow the review of potentially privileged communication that implicated the speech or debate clause.
The wiretap order, however, did not include a provision allowing investigators and prosecutors to record or review communication that implicated the attorney-client privilege. Prosecutors also did not inform the supervisor judge that the government had in place a taint team to monitor privileged attorney-client communication.
“The Court agrees with the Magistrate Judge that by recording attorney-client privileged conversations the Government seized evidence beyond that authorized by the wiretap, which required such evidence to be minimized, and that by this conduct the Government acted unreasonably in executing the wiretap,” Bury said in the decision. “More importantly, the Government chose to conceal from the Supervising Court that it was recording, albeit for taint team review, and not minimizing attorney-client privileged conversations.”
The government’s conduct, Bury wrote, “warrants a more significant sanction than just suppressing the privileged evidence.”
Bury noted the government failed to follow attorney-client protocols for two privileged phone calls between Renzi and Glenn Willard, of counsel with Patton Boggs in Washington, and Nixon Peabody partner Kelly Kramer, a lead defense lawyer for Renzi. (Renzi is also represented by Steptoe & Johnson partners Reid Weingarten and Brian Heberlig.)
The judge also noted that none of the privileged calls were sealed or marked as privileged, violation the Justice Department’s electronic surveillance manual. Several of the calls, including an hour-long legal conference call, were provided to Renzi’s co-defendants.
Federal prosecutors admitted making mistakes but said the government acted reasonably and urged the trial judge not to dismiss all the evidence flowing from the wiretap.