United States v. Johnson, 2:11-cr-00501

Jeremy Johnson, former president of iWorks, was criminally indicted (mail/wire/bank fraud, money laundering, etc.) after an FTC civil action; charged in 2011 and represented by multiple counsel over the case.
The government obtained a Google search warrant for two of Johnson’s Gmail accounts to investigate alleged witness tampering/obstruction of justice; Google produced data on discs in June 2013.
FBI filtered the production for listed attorney names at the RCFL; the filter used exact-name matches and some defense team members were not included on the filter list.
The FBI agent reviewed filtered results for witness-tampering evidence and provided a subset to prosecutors; prosecutors reviewed only the limited responsive pages and assert they did not see privileged communications.
Unfiltered copies of the Google production were later provided to Johnson’s counsel, uploaded into an MBox searchable database; Johnson alleged privileged materials were accessible to co-defendants, prompting a motion to dismiss for violation of Sixth Amendment right to counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Government intrusion into attorney-client relationship via Google warrant	Government knowingly captured privileged emails, failed to warn court, and failed to screen prosecution team; per se Sixth Amendment violation requiring dismissal	Warrant served legitimate law-enforcement purpose (witness tampering); filtering/search procedures were used; prosecution did not view privileged materials	Court recommended denial of motion to dismiss—no evidence of purposeful intrusion, legitimate purpose, no showing prosecution viewed or used privileged materials
Waiver of privilege by disclosure of MBox materials	Government contends Johnson waived privilege or inadvertently disclosed privileged emails accessible to co-defendants	Johnson disputes waiver; defense evidence (discovery coordinator) says MBox not accessible to other defense teams; Lindquist’s affidavit/testimony unreliable	Court declined to find waiver—Lindquist’s testimony contradicted by other testimony and was not credible
Appropriate remedy (dismissal requested)	Dismissal is only proper remedy if Sixth Amendment per se violated	No violation shown; dismissal unwarranted where no purposeful intrusion or prejudice shown	Denied—dismissal not appropriate given record

Shillinger v. Haworth, 70 F.3d 1132 (10th Cir. 1995) (prosecutor’s intentional intrusion into attorney-client relationship may be per se Sixth Amendment violation)
Weatherford v. Bursey, 429 U.S. 545 (1977) (government intrusion into attorney-client relationship may violate Sixth Amendment in some circumstances)
McMann v. Richardson, 397 U.S. 759 (1970) (Sixth Amendment guarantees effective assistance of counsel)