UNITED STATES of America, Plaintiff-Appellee, v. Phillip A. HAMILTON, Defendant-Appellant.
No. 11-4847
United States Court of Appeals, Fourth Circuit
Decided: Dec. 13, 2012.
701 F.3d 404
Argued: Oct. 24, 2012. Electronic Privacy Information Center, Amicus Supporting Appellant.
While I do not condone Infante‘s conduct or his crimes, I cannot sit idly by when faced with decisions that effectively erode some of our most cherished constitutional protections. More so, when the majority‘s approach has been to place the burden on the defendant to prove the absence of an emergency, while making all possible inferences in the government‘s favor. This while disregarding the Supreme Court‘s teachings that warrantless entries under the Fourth Amendment must be analyzed by viewing the circumstances presented objectively, and without regard to individual officials’ subjective intentions, no matter how well-intended. See Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). For the foregoing reasons, I would have reversed the district court‘s decision to deny Infante‘s first motion to suppress; and I would have remanded the case to the district court so that it could determine whether the statements made by Infante at the hospital should also have been suppressed as fruits of the poisonous tree.
Before MOTZ and FLOYD, Circuit Judges, and CATHERINE C. EAGLES, United States District Judge for the Middle District of North Carolina, sitting by designation.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
A jury convicted Phillip A. Hamilton of federal program bribery and extortion under color of official right. The convictions arose from charges that, while a state legislator, Hamilton secured state funding for a public university in exchange for employment by the university. Hamilton appeals, challenging his convictions and sentence. For the reasons that follow, we affirm.
I.
From 1988 to 2009, Hamilton served as a member of the Virginia House of Delegates. Ultimately he became Vice Chairman of the Appropriations Committee, which is responsible for the state budget. While serving as a legislator, he also worked as an administrator and then as a part-time consultant for the Newport News public schools system.
In August 2006, Hamilton arranged to meet with officials from Old Dominion University, a public university located in Norfolk, Virginia, to discuss state funding for a new Center for Teacher Quality and Educational Leadership that Old Dominion wanted to establish. Immediately prior to the meeting, Hamilton and his wife exchanged emails discussing their financial difficulties, and hope that the new Center would employ Hamilton. In their email exchange, Hamilton told his wife that he would “shoot for” a salary of $6,000 per month. Those emails, like all subsequent emails at issue in this case, were sent to or from Hamilton‘s public school workplace computer, through his work email account.
The Dean of the College of Education at Old Dominion, Dr. William Graves, testified that, after the initial meeting with Hamilton, Old Dominion President Roseann Runte directed the Dean to hire Hamilton, saying, “[t]hat man wants a job, make him director or something.” Hamilton emailed his wife that the meeting “went well” and that he had “reinforced” the idea that “if and when an employment opportunity became available,” he would like to be compensated “in the area of $6,000 per month.” Hamilton also emailed Dean Graves and, after advising the Dean to “keep this under the radar,” explained how best to obtain state funding for the Center. In this email, Hamilton further stated that, if funding for the Center was not included in the Governor‘s budget, “on my own, I will initiate legislation and/or a budget amendment to create such a center.”
Four months later, on December 21, Hamilton emailed President Runte, reminding her of his interest in employment with the Center. The same day, Hamilton emailed David Blackburn, Director of Old Dominion‘s Program for Research and Evaluation in Public Schools, explaining that, because the Governor‘s budget did not include money for the Center, Hamilton had proposed a budget amendment to secure $1 million for the Center. Hamilton added: “My City retirement is reduced in May 2007. I will need to supplement my current [public school] income . . . by at least an equal amount. . . .” Director Blackburn replied: “Thanks for passing on budget request and specific salary need[.] I believe GA [General Assembly] will fund and you will be on board[.]”
Soon thereafter, Hamilton introduced legislation for the first of two $500,000 appropriations for the Center, both of which ultimately passed. Director Blackburn emailed Hamilton: “Are congratula-
On the basis of the above evidence, the Government charged Hamilton with bribery concerning federal program funds in violation of
II.
Hamilton‘s most substantial appellate argument challenges the district court‘s admission into evidence of emails he sent to and received from his wife. He maintains that the admission of these emails violated the marital communications privilege. We review evidentiary rulings, including rulings on privilege, for abuse of discretion, see NLRB v. Interbake Foods, LLC, 637 F.3d 492, 501 (4th Cir.2011), factual findings as to whether a privilege applies for clear error, and the application of legal principles de novo. In re Grand Jury Subpoena, 341 F.3d 331, 334 (4th Cir.2003).
“Communications between . . . spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged.” Wolfle v. United States, 291 U.S. 7, 14, 54 S.Ct. 279, 78 L.Ed. 617 (1934); see also United States v. Parker, 834 F.2d 408, 411 (4th Cir.1987) (Powell, J.). This is so because “marital confidences” are “regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.” Wolfle, 291 U.S. at 14, 54 S.Ct. 279. But, of course, to be covered by the privilege, a communication between spouses must be confidential; “voluntary disclosure” of a communication waives the privilege. Id. at 14-15, 54 S.Ct. 279. The Government maintains that Hamilton waived the marital communications privilege by communicating with his wife on his workplace computer, through his work email account, and subsequently failing to safeguard the emails.
Wolfle, the leading marital communications privilege case to have reached the Supreme Court, provides an analogy useful in resolving Hamilton‘s privilege claim. In Wolfle, the Court held that a defendant‘s communication with his wife did not come “within the privilege because of [his] voluntary disclosure” of the communication “to a third person, his stenographer.” 291 U.S. at 14, 54 S.Ct. 279. The Court explained that, “[n]ormally husband and wife may conveniently communicate without stenographic aid, and the privilege of holding their confidences immune from proof in court may be reasonably enjoyed and preserved without embracing within it the testimony of third persons to whom such communications have been voluntarily revealed.” Id. at 16-17, 54 S.Ct. 279. Be-
In Hamilton‘s case, email has become the modern stenographer. Like the communications to the stenographer in Wolfle‘s time, emails today, “in common experience,” are confidential. See id. at 15, 54 S.Ct. 279; see also ABA Comm. on Ethics & Prof‘l Responsibility, Formal Op. 413 (1999) (noting that email “pose[s] no greater risk of interception or disclosure than other modes of communication commonly relied upon as having a reasonable expectation of privacy” and so there is generally “a reasonable expectation of privacy in its use“).
But just as spouses can “conveniently communicate without” use of a stenographer, they can also “conveniently communicate without” using a work email account on an office computer. See Wolfle, 291 U.S. at 16, 54 S.Ct. 279. Therefore, as in Wolfle, it is hardly “plain that marital confidence cannot . . . reasonably be preserved” without according the privilege to the spousal communications at issue here. See id. at 17, 54 S.Ct. 279. Accordingly, that one may generally have a reasonable expectation of privacy in email, at least before a policy is in place indicating otherwise, does not end our inquiry.
Hamilton ignores this guidance from Wolfle and focuses solely on the fact that, in 2006, when he used his workplace email system to send the emails for which he claims privilege, his public school employer had no computer usage policy. This is true, but the school system adopted a computer policy well prior to the 2009 investigation of, and 2011 charges against, Hamilton. The computer policy, as revised in 2008, expressly provides that users have “no expectation of privacy in their use of the Computer System” and “[a]ll information created, sent[,] received, accessed, or stored in the . . . Computer System is subject to inspection and monitoring at any time.” Moreover, it is undisputed that forms accepting this policy were electronically signed in Hamilton‘s name, and that Hamilton had to acknowledge the policy by pressing a key to proceed to the next step of the log-on process, every time he logged onto his work computer. The district court concluded that these facts established that Hamilton had waived any privilege he had in the emails.
Hamilton contends that he did not waive the privilege because he “had no reason to believe, at the time he sent and received the emails, that they were not privileged,” and he could not waive his privilege retroactively. Amicus, the Electronic Privacy Information Center, adds that it seems “extreme” to “require an employee to scan all archived e-mails and remove any that are personal and confidential every time the workplace use policy changes,” when “employees may not even be aware that archived e-mails exist or know where to find them.” EPIC Br. at 18.
In an era in which email plays a ubiquitous role in daily communications, these arguments caution against lightly finding waiver of marital privilege by email usage. But the district court found that Hamilton did not take any steps to protect the emails in question, even after he was on notice of his employer‘s policy permitting inspection of emails stored on the system at the employer‘s discretion. As outlined above, the record provides ample support for these factual findings.
In similar circumstances, we have held that a defendant did not have an “objectively reasonable” belief in the privacy of files on an office computer after his em-
Thus, the district court‘s conclusion that the emails were not subject to the marital communications privilege constitutes no abuse of discretion. Rather, that conclusion accords with the admonition in Wolfle against freely extending the privilege to communications outside of which marital confidences can “otherwise reasonably be preserved,” 291 U.S. at 17, 54 S.Ct. 279, and with the principle that one who is on notice that the allegedly privileged material is subject to search may waive the privilege when he makes no efforts to protect it.
III.
We can more quickly resolve Hamilton‘s remaining contentions.
A.
First, Hamilton challenges the sufficiency of the evidence. We uphold a jury verdict based on substantial, even if circumstantial, evidence, viewing the evidence in the light most favorable to the Government. United States v. Stewart, 256 F.3d 231, 249 (4th Cir.2001). As Hamilton acknowledges, “[w]hen a defendant challenges the sufficiency of a jury‘s guilty verdict . . . he bears a heavy burden.” Hamilton has not met that burden.
To establish the corrupt intent necessary for the convictions at issue here, the Government had to present evidence of “an exchange of money (or gifts) for specific official action.” United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir.1998). The Government did this, offering a broad range of evidence, admittedly much of it circumstantial, indicating that Hamilton used his position as a state legislator to obtain state funds for the Center, in exchange for a paid position at the Center. Hamilton may be correct that “the Government produced no email, or witness, to say that Hamilton communicated to any one that he would not support funding for the research center unless he received a job in return.” But intent can be implied—and it is the jury‘s role to make such factual inferences. See United States v. Engle, 676 F.3d 405, 418 (4th Cir.2012). Thus, we find Hamilton‘s sufficiency of the evidence argument meritless.
B.
Hamilton next argues that the district court committed reversible error in failing to instruct the jury on the difference between a bribe, which requires intent to engage in a quid pro quo, and a gratuity, which does not require corrupt intent, but only a “payment for or because of some official act.” See Jennings, 160 F.3d at 1013 (internal quotation marks omitted). We review asserted jury instruction errors for abuse of discretion. United States v. Shrader, 675 F.3d 300, 308 (4th Cir.2012). To demonstrate such abuse, Hamilton must establish that his proposed instruction was “(1) correct; (2) not substantially covered by the court‘s charge; and (3) deal[t] with some point in
In this case, the district court did not abuse its discretion in refusing to instruct the jury as to a gratuity. Hamilton‘s suggestion that this refusal could have caused confusion fails, for he concedes that the Government did not pursue a gratuity theory. The court properly instructed the jury on the specific requirements under
Nor can Hamilton show that failure to give the requested instruction “seriously impaired” his defense. See Shrader, 675 F.3d at 308. Although we have not yet ruled as to whether
C.
Finally, Hamilton asserts two reasons why he believes the district court erred in its application of a fourteen-level sentencing enhancement. We review legal interpretations of the Sentencing Guidelines de novo. United States v. McKenzie-Gude, 671 F.3d 452, 462-63 (4th Cir.2011). But when a defendant does not raise an argument in the district court, we review only for plain error. United States v. Strieper, 666 F.3d 288, 295 (4th Cir.2012). “To establish plain error, the appealing party must show that an error (1) was made, (2) is plain (i.e., clear or obvious), and (3) affects substantial rights.” United States v. Lynn, 592 F.3d 572, 577 (4th Cir.2010). Moreover, we “may exercise . . . discretion to correct the error only if it seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks omitted).
Hamilton initially argues, as he did in the district court, that in determining the proper sentencing enhancement, the court should have relied on the value of the payment he received—approximately $87,000—rather than the value of the benefit Old Dominion obtained. Yet Hamilton admits that the Sentencing Guidelines require that the enhancement be based on the greater of the payment received or the benefit obtained—and there is no dispute the benefit to Old Dominion was greater than the payment Hamilton received. See
Hamilton raises, for the first time on appeal, the additional argument that, in calculating his sentencing enhancement, the district court should have determined the benefit to Old Dominion based on the net, rather than the gross, value of the state appropriation Old Dominion obtained. See
To succeed on a plain error argument, a defendant must demonstrate that any error affected his substantial rights, which here required Hamilton to demonstrate that the net benefit received by Old Do-
In sum, Hamilton has not demonstrated that the alleged error was plain or affected his substantial rights.
IV.
Because we find each of Hamilton‘s claims on appeal to be without merit, we affirm the judgment of the district court.
AFFIRMED.
UNITED STATES of America, Plaintiff-Appellee, v. Cristobal MEZA, III, Defendant-Appellant.
No. 10-10886.
United States Court of Appeals, Fifth Circuit.
Nov. 9, 2012.