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Tenth Circuit Rejects Government’s Appeal Over Recorded Attorney Calls and Visits at Private Prison in Leavenworth

by Dale Chappell

Over five years ago, federal prosecutors in Kansas used recordings of attorney visits and phone calls to obtain convictions in numerous criminal cases. The recordings were made by a private prison in Leavenworth owned by Corrections Corporation of America (CCA, which has since changed its name to CoreCivic), and then handed over to prosecutors. Once this scam was exposed, hundreds of prisoners filed motion to toss their criminal cases. Despite that the federal court found the prosecutors were in contempt of court for refusing to turn over the evidence it illegally obtained, the government still tried to white-wash its disgraceful acts through multiple court challenges and complaints.

The government’s latest attempt was an appeal in the U.S. Court of Appeals for the Tenth Circuit, where the government complained that the district court’s investigation into the recorded meetings and calls was unlawful and that the judge’s criticism of the government’s acts was harmful to the government’s other cases stemming from those acts. It said that these things could harm the cases still open that are challenging possible constitutional violations by the government and CCA. But the Court of Appeals ruled on May 4, 2021, that the government’s appeal had no basis to allow a ruling on the merits, and dismissed the appeal as “unripe.”

Really, what the government was appealing were the judge’s comments and findings in the district court in another case that it said would affect over 100 other postconviction challenges. However, the court held that mere comments by a judge were not conclusions disposing of a case to allow an appeal. “The district court’s statements about potential Sixth Amendment violations are neither binding in the [other] post-conviction cases now final determinations,” the court said. If the district court does rely on any improper statements, the court said the government could appeal at the end of each of those cases.

The court also held that a district court’s comments were not binding on any other case she’s involved in, not even the current case where the comments were made. The government’s complaint, then, did not form the basis for a proper appeal, the court concluded. “The feared injury—application of these statements and contempt findings in the post-conviction cases—is not actual or imminent” to provide a basis for appeal, the court said.

“We review judgment, not statements. The [government] instead challenges statements and findings made along the way to the judgment. Our resources are not well spent superintending each word a lower court utters en route to a final judgment in the appellant’s favor,” the court said. “The [government] fears that the district court will use these statements and findings when ruling on the post-conviction cases. That possibility does not create appellate jurisdiction or a prudentially ripe dispute.”

The court therefore dismissed the government’s appeal for lack of jurisdiction without ruling on the merits of the claims made. See: United States v. Carter, 995 F.3d 1222 (10th Cir. 2021). 

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Related legal case

United States v. Carter