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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