Wednesday, January 02, 2013

E-mails, Stenographers and the Marital Communications Privilege

After a jury convicted him of “bribery concerning federal program funds in violation of 18 U.S. Code § 666(a)(1)(B)” and “extortion under color of official right in violation of 18 U.S. Code § 1951”, and he was sentenced him to “114 months’ imprisonment”, Philip A. Hamilton appealed.  U.S. v. Hamilton, ___ F.3d ___, 2012 WL 6200731 (U.S. Court of Appeals for the 4th Circuit 2012). 

To understand the argument he made on appeal, it is necessary to understand how the case arose.  According to this opinion, from 1988 until 2009, Hamilton was a member

of the Virginia House of Delegates. Ultimately he became Vice Chairman of the Appropriations Committee, which is responsible for the state budget. While serving as a legislator, he also worked as an administrator and then as a part-time consultant for the Newport News public schools system.

In August 2006, Hamilton arranged to meet with officials from Old Dominion University, a public university in Norfolk, Virginia, to discuss state funding for a new Center for Teacher Quality and Educational Leadership that Old Dominion wanted to establish. Immediately prior to the meeting, Hamilton and his wife exchanged emails discussing their financial difficulties, and hope that the new Center would employ Hamilton. 

In their email exchange, Hamilton told his wife that he would `shoot for’ a salary of $6,000 per month. Those emails, like all emails at issue in this case, were sent to or from Hamilton's public school workplace computer, through his work email account.

The Dean of the College of Education at Old Dominion, Dr. William Graves, testified [at trial] that, after the initial meeting with Hamilton, Old Dominion President Roseann Runte directed the Dean to hire Hamilton, saying, `[t]hat man wants a job, make him director or something.’ Hamilton emailed his wife that the meeting `went well’ and he had `reinforced’ the idea that `if and when an employment opportunity became available,’ he would like to be compensated `in the area of $6,000 per month.’ 

Hamilton also emailed Graves and, after advising the Dean to `keep this under the radar,’ explained how best to obtain state funding for the Center. In this email, Hamilton further stated that, if funding for the Center was not included in the Governor's budget, `on my own, I will initiate legislation and/or a budget amendment to create such a center.’

U.S. v. Hamilton, supra.

According to the opinion, four months later, on December 21, Hamilton emailed

Runte, reminding her of his interest in employment with the Center. The same day, [he] emailed David Blackburn, Director of Old Dominion's Program for Research and Evaluation in Public Schools, explaining that, because the Governor's budget did not include money for the Center, Hamilton had proposed a budget amendment to secure $1 million for the Center. 

Hamilton added: `My City retirement is reduced in May 2007. I will need to supplement my current [public school] income . . . by at least an equal amount. . . .’ Blackburn replied: `Thanks for passing on budget request and specific salary need[.] I believe GA [General Assembly] will fund and you will be on board[.]’

Soon thereafter, Hamilton introduced legislation for the first of two $500,000 appropriations for the Center, both of which ultimately passed. Blackburn emailed Hamilton: `Are congratulations in order? Are you our new director?’ 

In response, Hamilton reiterated his salary needs, noting `[o]f course, more than that is always appreciated.’ Blackburn then posted an announcement for the Center Director position, but did not interview any of the three applicants for the position.

Instead, Hamilton was selected as Center Director, at a salary of $40,000 per year, even though he had not filed an application for the position. [At trial,] Graves testified that, but for Hamilton's legislative assistance, the Center would not have offered [him] the position. 

Hamilton later suggested `flowing the money’ for his Center employment through the school system payroll and generally concealing his position as Director of the Center. Hamilton explained at one point in an email to Blackburn, `looks like they are digging.’

U.S. v. Hamilton, supra.

On appeal, Hamilton claimed the trial judge erred in admitting into evidence “emails he sent to and received from his wife.” U.S. v. Hamilton, supra. He argued that admitting “these emails violated the marital communications privilege.”  U.S. v. Hamilton, supra.  The Court of Appeals began its analysis of his argument by noting that

`[c]ommunications between . . . spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged.’ Wolfle v. U.S., 291 U.S. 7, 14 (1934). . . . This is so because `marital confidences’ are `regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.’ Wolfle v. U.S., supra.  

U.S. v. Hamilton, supra.

It also noted, though, that in order to be

covered by the privilege, a communication between spouses must be confidential; `voluntary disclosure’ of a communication waives the privilege. Wolfle v. U.S., supra.  The Government maintains that Hamilton waived the marital communications privilege by communicating with his wife on his workplace computer, through his work email account, and subsequently failing to safeguard the emails.

U.S. v. Hamilton, supra.  (For more on the privilege, check out this wiki entry.)

The Court of Appeals also explained that Wolfle v. U.S.,

the leading marital communications privilege case to have reached the Supreme Court, provides an analogy useful in resolving Hamilton's privilege claim. In Wolfle, the Court held that a defendant's communication with his wife did not come `within the privilege because of [his] voluntary disclosure' of the communication `to a third person, his stenographer.’ Wolfle v. U.S., supra.

The [Supreme] Court explained that, `[n]ormally husband and wife may conveniently communicate without stenographic aid, and the privilege of holding their confidences immune from proof in court may be reasonably enjoyed and preserved without embracing within it the testimony of third persons to whom such communications have been voluntarily revealed.’  Wolfle v. U.S., supra. 

Because `[t]he privilege suppresses relevant testimony,’ it `should be allowed only when it is plain that marital confidence cannot otherwise reasonably be preserved,’  and `[n]othing in this case suggests any such necessity.’ Wolfle v. U.S., supra. 

U.S. v. Hamilton, supra. 

The Court of Appeals found, however, that

just as spouses can `conveniently communicate without’ use of a stenographer, they can also `conveniently communicate without’ using a work email account on an office computer. See Wolfle v. U.S., supra.  Therefore, as in Wolfle, it is hardly `plain that marital confidence cannot . . .  reasonably be preserved’ without according the privilege to the spousal communications at issue here. See Wolfle v. U.S., supra. 

Accordingly, that one may generally have a reasonable expectation of privacy in email, at least before a policy is in place indicating otherwise, does not end our inquiry.

U.S. v. Hamilton, supra. 

The court then explained that Hamilton

ignores this guidance from Wolfle and focuses solely on the fact that, in 2006, when he used his workplace email system to send the emails for which he claims privilege, his public school employer had no computer usage policy. This is true, but the school system adopted a computer policy well prior to the 2009 investigation of, and 2011 charges against, Hamilton.

The computer policy, as revised in 2008, expressly provides that users have `no expectation of privacy in their use of the Computer System’ and `[a]ll information created, sent[,] received, accessed, or stored in the . . .  Computer System is subject to inspection and monitoring at any time.’

Moreover, it is undisputed that forms accepting this policy were electronically signed in Hamilton's name, and that Hamilton had to acknowledge the policy by pressing a key to proceed to the next step of the log-on process, every time he logged onto his work computer. The district court concluded that these facts established that Hamilton had waived any privilege he had in the emails.

U.S. v. Hamilton, supra (emphasis in the original).

Hamilton argued that he did not waive the privilege because he

`had no reason to believe, at the time he sent and received the emails, that they were not privileged,’ and he could not waive his privilege retroactively. Amicus, the Electronic Privacy Information Center, adds that it seems `extreme’ to `require an employee to scan all archived e-mails and remove any that are personal and confidential every time the workplace use policy changes,’ when `employees may not even be aware that archived e-mails exist or know where to find them.’ EPIC Br[ief] at 18.

In an era in which email plays a ubiquitous role in daily communications, these arguments caution against lightly finding waiver of marital privilege by email usage. But the district court found that Hamilton did not take any steps to protect the emails in question, even after he was on notice of his employer's policy permitting inspection of emails stored on the system at the employer's discretion. As outlined above, the record provides ample support for these factual findings.

U.S. v. Hamilton, supra (emphasis in the original).

The court noted that, in an earlier case, it held that a defendant “did not have an `objectively reasonable’ belief in the privacy of files on an office computer after his employer's policy put him `on notice’ that ‘it would be overseeing his Internet use.’” U.S. v. Hamilton, supra (quoting U.S. v. Simons, 206 F.3d 392 (2000)).  It also noted that other federal Courts of Appeals have made it “clear that a party waives the marital communications privilege when he `fails to take adequate precautions to maintain . . . confidentiality.’” U.S. v. Hamilton, supra (quoting SEC v. Lavin, 111 F.3d 921 (U.S. Court of Appeals for the D.C. Circuit 1997)).

For all of these reasons, the Court of Appeals held that the district court judge who presided over Hamilton’s trial did not err in finding that the emails at issue were not

subject to the marital communications privilege. . . . Rather, that conclusion accords with the admonition in Wolfle against freely extending the privilege to communications outside of which marital confidences can `otherwise reasonably be preserved,’ Wolfle v. U.S., supra, and with the principle that one who is on notice that the allegedly privileged material is subject to search may waive the privilege when he makes no efforts to protect it.

U.S. v. Hamilton, supra. 

For these and other reasons, the court affirmed Hamilton’s conviction and sentence.  U.S. v. Hamilton, supra.  If you would like to read more about the case, and see a photo of Hamilton, check out this Wikipedia entry.

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