Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for United States of America
Glen Donath and Matthew R. Palmer-Ball, Katten Muchin Rosenman LLP, Washington, D.C., for Defendant.
OPINION AND ORDER
James P. Jones United States District Judge
In this criminal case, the defendant has filed a Motion to Dismiss and to Disqualify Government Counsel, alleging that the government knowingly received and reviewed privileged attorney-client communications in violation of the Sixth Amendment. Having referred this matter to the magistrate judge, and having conducted a de novo review, I adopt the magistrate judge’s Report and Recommendation and deny the defendant’s motions.
The magistrate judge summarized the facts as follows:
By Superseding Indictment issued by a grand jury sitting in this district on June 25, 2013, Salerian is charged with one count of conspiracy to unlawfully distribute and 143 counts of distributing Schedule II controlled substances without a legitimate medical purpose and beyond the bounds of medical practice in violation of 21 U.S.C. §§ 846, 841 and 841(b)(1)(C). Salerian is a medical doctor with a specialty in psychiatry who previously operated the Washington, D.C., based Washington Center for Psychiatry, which was renamed as the Salerian Center for Neuroscience and Pain in 2010.
Salerian originally was charged in this district by indictment issued on April 16, 2013. This court’s involvement with the investigation of Salerian dates back to at least September 2011 when the [magistrate judge], in a sealed Memorandum Opinion, resolved a privilege issue with regard to Government subpoenas issued to Salerian and his practice’s records custodian to appear before the grand jury in this district and produce certain records of his practice. The Government’s investigation of Salerian, however, began some time before March 3, 2011, when search warrants were executed on his Maryland residence and his D.C. office. The charges against Salerian are scheduled for trial beginning February 10, 2014.
This matter is currently before the court on Salerian’s Motion seeking the dismissal of the Superseding Indictment and disqualification of the Government’s current trial attorneys from any further participation in an investigation of Salerian’s conduct as alleged in the Superseding Indictment. Salerian’s counsel argue that the charges against him should be dismissed because the Government’s counsel, in the course of their investigation, received at least 11 separate privileged communications between Salerian and his counsel.
At the October 29 hearing, counsel for the Government, Assistant United States Attorney Jennifer Bockhorst, testified that the Government received these communications between Salerian and his counsel from grand jury witness Lynette Rash, (“L. Rash”). Bockhorst stated that, some time prior to May 15, 2012, L. Rash approached the U.S. Attorney’s Office stating that she had information that she wished to share regarding Salerian. Bockhorst stated that the first time she saw the notebook containing the communications between Salerian and his counsel, (“Notebook”), was on May 15, 2012, when she met with L. Rash for a proffer session. L. Rash brought the Notebook to the meeting with Bockhorst and offered it to her. Bockhorst testified that she opened the Notebook in order to peruse the contents. Bockhorst stated that the first document she saw was some nondescript correspondence. The next document she saw, however, was on the letterhead of Salerian’s counsel, Glen Donath, and contained a heading stating “Privileged Communication.” Bockhorst stated that she immediately closed the Notebook and did not read the contents of this letter or any other document contained in the Notebook. Bockhorst testified that L. Rash told her that she had been given the Notebook by Salerian. Bockhorst stated that neither she, nor the case agent present at this meeting, Nick Worsham, took custody of the Notebook that day. A subpoena was obtained for L. Rash to appear before the grand jury on the next day and to produce all records regarding Salerian in her possession.
Bockhorst testified that L. Rash appeared and testified before the grand jury on May 16, 2012. During L. Rash’s testimony, Bockhorst questioned her about how she had obtained the Notebook. Based on L. Rash’s testimony, Bockhorst stated that she had concluded that any privilege that may have applied to the contents of the Notebook had been waived by Salerian when he gave the Notebook to L. Rash. Bockhorst stated that, after L. Rash’s grand jury testimony, she instructed Worsham to take custody of the Notebook, to place it in a sealed folder and mark that it potentially contained privileged material and place it, along with the other evidence provided by L. Rash, in the grand jury evidence room at the Abingdon U.S. Attorney’s Office. Bockhorst stated that the only persons who had access to this grand jury evidence room were employee[s] of the U.S. Attorney’s Office and, on occasion, various federal agents who placed evidence in the room.
Bockhorst testified that L. Rash actually went on to serve in the investigation of Salerian in an undercover informant capacity. Eventually, however, the Government decided to discontinue using L. Rash in this capacity.
Bockhorst testified that she has not reviewed the contents of the Notebook and, in fact, she had forgotten about the Notebook and its contents until earlier this year. Bockhorst could offer no explanation for why she had forgotten about the Notebook except to say that, at some point in the investigation, the Government had decided not to use any evidence provided by L. Rash. Bockhorst stated that earlier this year, the Government’s trial team had decided to disclose all of the evidence in its possession to Salerian’s defense counsel. Bockhorst said that in June she assigned a staff member in the U.S. Attorney’s Office, Lori Sykes, to scan the remaining documents into electronic format, save them to the Salerian discovery folder on the [shared] T drive of the office computer system and place them on a computer disc that would be given to defense counsel. Bockhorst stated that when, on July 18, 2013, she reviewed a list of the documents Sykes had scanned into electronic form and saved in the discovery folder on the T drive, she realized that it contained information that might be protected under the attorney-client privilege. Bockhorst testified that she immediately stopped reviewing the material contained in the discovery folder, and she instructed Dennis Lee, Special Assistant United States Attorney, (“SAUSA”), assisting in the prosecution of Salerian, not to access the folder until such time as all potentially privileged information was removed.
Bockhorst testified that, despite these events, she still did not remember that the Government had taken custody of the Notebook from L. Rash containing potentially privileged information. Bockhorst testified that she immediately notified defense counsel that she had discovered 14 potentially privileged documents within the documents the Government was preparing to produce to defense counsel. Bockhorst stated that she then called in a previously designated “taint” team, including Special Assistant United States Attorney Janine Myatt and her legal assistant, Mary Blackburn, who reviewed the contents of the discovery folder on the T drive and removed any potentially privileged information. Bockhorst stated that she had been informed by Myatt that the entire contents of the Notebook received from L. Rash had been scanned and placed in the Government’s discovery folder.
Bockhorst testified that, to date, she has not reviewed any of the contents of the Notebook. She also stated that she was not aware of anyone else on the Government’s trial team reviewing the contents of the Notebook. She stated that only employees of the U.S. Attorney’s Office had access to the shared T drive on the office computer system. Bockhorst stated that she knew that she had not reviewed any of the correspondence contained in the Notebook because she had not reviewed any correspondence between Salerian and his counsel at any time during the investigation.
Special Agent Nick Worsham testified that he was present when L. Rash was interviewed by Bockhorst on May 15, 2012. He stated that L. Rash arrived with several notebooks in her possession containing material that she claimed was relevant to the Government’s investigation of Salerian. Worsham testified that Bockhorst opened one of these notebooks and saw that it contained letterhead from Salerian’s counsel, and she closed the Notebook and did not examine its contents any further. Worsham stated that he took possession of this and the other notebooks from L. Rash on May 16, 2012, pursuant to a grand jury subpoena after L. Rash had finished testifying. Worsham testified that he placed the Notebook inside of a folder and taped [it] shut. He stated that he marked the folder as containing potentially privileged information. Worsham stated that he placed the folder in a box with the other evidence and gave the box to the staff at the U.S. Attorney’s Office to be placed in the grand jury evidence room that same day. Worsham said he never saw the box or the Notebook again after that date and that he was reassigned out of the Western District of Virginia in July of 2012. Worsham testified that he never reviewed the contents of the Notebook and that he did not have access to the U.S. Attorney’s Office computer system’s shared T drive.
Lori Sykes also appeared and testified. Sykes testified that she worked at the U.S. Attorney’s Office from June 1, 2012, to July 24, 2013. Sykes stated that she began scanning evidence in the Salerian case when she first started work at the U.S. Attorney’s Office and that she continued until her last day working at the office. Sykes stated that she did not specifically remember opening any sealed folder marked that it contained potentially privileged material and did not remember scanning the contents of the Notebook.
Attorney Ann Margaret Brammer from Tazewell, Virginia, also testified. Brammer stated that she previously had represented Rob Rash, (“R. Rash”), L. Rash’s son, on state drug charges brought by Lee in his role as Tazewell County Commonwealth’s Attorney. Brammer testified that, through her representation of R. Rash, she developed a close relationship with L. Rash. Brammer stated that she met Salerian at L. Rash’s home in Abingdon on one occasion when she traveled there to consult with her client. On this occasion, Brammer stated, she asked Salerian to provide certain of R. Rash’s records to her. Sometime later, Brammer said, L. Rash delivered some notes from Salerian to her.
Brammer testified that she spoke to Salerian on one occasion on the telephone regarding his treatment of her client. On this occasion, Brammer said, Salerian told her that he may want to retain her to represent him on some civil charges, but he never told her the subject matter of the representation. Brammer stated that she never spoke any further with Salerian of representing him because she had no intention of ...