I. STATEMENT OF FACTS
On September 11, 2017, the government disclosed to Mr. Payne prior statements made by its prospective trial witnesses, consistent with its obligation under the Jencks Act, 18 U.S.C. § 3500. The statements included hundreds of phone calls that required substantial time for undersigned counsel to review. Among those phone calls, undersigned counsel discovered calls made from jail by co-defendant Blaine Cooper, who pled guilty and is cooperating with the government. Several of those recordings capture conversations between Mr. Cooper and the attorney representing him in the related federal criminal case in Oregon. The recordings, which were made while Mr. Cooper was incarcerated at the Las Vegas City Jail between January 22, 2017, and February 17, 2017, address matters relating to the instant case, including preparation, criminal allegations, and strategy.
For most of the instant prosecution, Mr. Payne was detained pending trial at the Nevada Southern Detention Center in Pahrump, Nevada (“CCA-Pahrump”).1 While detained at CCA-Pahrump, Mr. Payne routinely used the facility’s phone system to speak with undersigned counsel.
In October of 2016, Mr. Payne filed a motion informing this Court of his good faith belief that CCA-Pahrump may have been recording his privileged attorney-client conversations with undersigned counsel. ECF No. 727 at 3-4. Mr. Payne requested this Court issue an order (1) compelling the government to produce any recordings of conversations with counsel, and (2) instructing officials at CCA-Pahrump to cease and desist from recording privileged attorney-client phone communications. ECF No. 727 at 4. On November 18, 2016, this Court denied Mr. Payne’s motion based on the government’s “affirmative represent[ation] that it has no recordings of conversations between Payne and his counsel, or between Payne’s co-defendants and their counsel.” ECF No. 997 at 7 (emphasis added).
In light of the government’s disclosure regarding co-defendant Mr. Cooper, the government’s representation that it has no recordings of conversations between the defendants in this case and their attorneys is no longer accurate. The government can no longer make such a representation. And, despite having notice of Mr. Payne’s concerns that attorney-client conversations were being recorded and turned over to the government, the government engaged in the very conduct it previously denied.
Upon receiving proof of Mr. Cooper’s privileged attorney-client calls from the government, undersigned counsel contacted the government on November 8, 2017. Undersigned counsel requested the government provide all jail calls the government may have from Mr. Payne. Undersigned counsel also requested the government clarify its previous representation that it did not possess any such materials “and further clarify what, if any, procedure exists to prevent the U.S. Attorney from coming into possession of recorded calls between co-defendants and their attorney’s offices, and if such a procedure exists, how the U.S. Attorney’s Office came into possession of Mr. Cooper’s calls.”
As of the time of the instant filing, the government has not responded to any of undersigned counsel’s inquiries.