The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING MOTION TO DISMISS
Defendant Curt Romanyshyn moves to dismiss the charges against him because the government intruded into his attorney-client relationship in violation of his Sixth Amendment rights. The government opposes the motion. The motion is denied.
Romanyshyn and his co-defendant were scheduled to go to trial on charges of conspiracy to distribute a controlled substance and possession with intent to distribute a controlled substance on Tuesday, September 22, 2009. Docket 222. On Friday, September 18, 2009, Romanyshyn moved to continue the trial on the grounds that his local counsel, Robin Zephier, found notes reflecting at least six conversations between Romanyshyn and his North Dakota counsel, Michael Hoffman, in the case file provided by the case agent in this case, Special Agent Jeff Goble of the South Dakota Division of Criminal Investigation (DCI). Docket 322. The court granted Romanyshyn's motion to continue, and the trial is currently scheduled for Monday, November 2, 2009. Dockets 327 & 375. Romanyshyn subsequently filed the instant motion to dismiss. Docket 356.
The court held an evidentiary hearing on this matter on October 28, 2009. Romanyshyn called two witnesses, Special Agent Goble and DCI intelligence analyst Jenny Buckley. The government did not call any witnesses. The Assistant United States Attorney assigned to Romanyshyn's case, Mark Vargo (A.U.S.A. Vargo), was present for the beginning of Special Agent Gobel's testimony, but left the courtroom before Special Agent Goble discussed the contents of any of Romanyshyn's telephone conversations. Assistant United States Attorney Gregg Peterman (A.U.S.A. Peterman) represented the government for the remainder of the hearing. At the close of the hearing, the court issued a summary opinion denying Romanyshyn's motion to dismiss the superseding indictment against him and imposing other remedial measures.
Special Agent Goble testified that he was the lead South Dakota agent on Romanyshyn's case. He testified that before the first trial date,*fn1 he talked with A.U.S.A. Vargo about providing discovery to Romanyshyn prior to trial, including recordings of the telephone conversations Romanyshyn had while he was incarcerated at the Pennington County Jail (the jail). A.U.S.A. Vargo advised him to copy Romanyshyn's phone conversations onto a CD and place the CD in the case file.
Special Agent Goble testified that he assigned Buckley, a member of the South Dakota National Guard's counterdrug division who had been assigned to work as an intelligence agent for DCI, the task of listening to the recordings of Romanyshyn's phone calls. He instructed Buckley to download recordings of all of Romanyshyn's telephone calls from the jail's database in a rush fashion in order to provide them to the government before the October 28, 2008, trial date. Special Agent Goble testified that he was responsible for giving Buckley instructions on listening to Romanyshyn's phone conversations. He instructed Buckley to listen to the calls and record the date, phone number, participants, and a brief synopsis for each phone conversation. Special Agent Goble told Buckley to put a star by calls that sounded funny. He did not instruct her to avoid listening to conversations between Romanyshyn and his attorney. Special Agent Goble testified that this omission was an error on his part.
Special Agent Goble testified that Buckley prepared a handwritten call summary report for the telephone conversations she listened to.*fn2 The October 28, 2008, trial date was continued before Buckley finished listening to all of the calls, so Special Agent Goble retrieved the CD and report from Buckley and put them in the case file. He testified that he paper clipped Buckley's report to the CD and placed it in the case file without reading it. Special Agent Goble testified that he does not know who wrote the notation, "1st couple wks & last couple wks" on the upper left hand corner of the first page of Buckley's call summary report. He denied that the notation was written in his handwriting.
Special Agent Goble testified that he provided a copy of the CD made by Buckley to the government in October 2008 in order to meet the discovery deadline. He does not recall if he ever provided Buckley's written summaries to A.U.S.A. Vargo. Special Agent Goble testified that he did not prepare a report on the contents of Romanyshyn's telephone calls, so he has no record of providing the call summary report to A.U.S.A. Vargo.
Special Agent Goble testified that he did not listen to any of the recordings of Romanyshyn's phone conversations. He also testified that he never listened to conversations between Romanyshyn and his attorneys and that he never read the notes Buckley took on Romanyshyn's phone calls. Special Agent Goble testified that he was aware that the word, "discovery," was mentioned in the call synopses, but did not know anything else about the substance of the conversations. Special Agent Goble testified that Buckley did not recite pieces of substantive conversations between Romanyshyn and his attorney to him, and that he was not aware of anybody else who was privy to the recorded conversations.
Special Agent Goble testified that he has training on the constitutional rights of defendants, and that he is aware that the Constitution prohibits the government from listening to attorney-client phone calls. Regarding ...