USA v. Stoltenberg et al

U.S. v. Stoltenberg
3:18-cr-00109-TMB-MMS
Order on Motion to Return Property 	Page 1
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
EDWIN ALLEN STOLTENBERG,
Defendant.
3:18-cr-00109-TMB-MMS
ORDER ON MOTION TO RETURN
PROPERTY [Dkt. 299].
I. 	ISSUE PRESENTED
Defendant 	Edwin 	Allen 	Stoltenberg 	(“Stoltenberg”) 	has 	been 	charged, 	by
superseding indictment, with Possession with Intent to Distribute Controlled Substances;
Carrying a Firearm During and in Relation to a Drug Trafficking Crime; Felon in
Possession of a Firearm or Ammunition (two counts); and Access Device Fraud. [Dkt.
207]. On August 2, 2019, the Government notified Stoltenberg, defense counsel, and the
District Court that it had inadvertently come into possession of recordings of ten potentially
privileged jail calls between Stoltenberg and an attorney.1 [Dkt. 177]. The Court has
subsequently learned that the Government had access to more than 10 potentially
privileged jail calls, and that an FBI agent, Task Force Officer Curtis Vik, had listened to
at least portions of 22 recordings of calls made by Stoltenberg to numbers associated with
Attorneys 	Brad 	Carlson 	and 	Danee 	Pontius. 	[See 	Dkt. 	457-1]. 	The 	issue 	of 	the
1 Dkt. 356 at 8 (Transcript).
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government’s acquisition of potentially privileged attorney-client jail call recordings was
referred to the undersigned magistrate judge.2 [Dkt. 177].
On February 7, 2020, Stoltenberg, through counsel, filed a motion “[p]ursuant to
Federal Rules of Criminal Procedure, Rule 41(g). . . [seeking a court order for] the return
of property consisting of the accessed phone recordings between Mr. Stotlenberg [sic] and
the Attorneys Bradly Carlson, Danee Pontius, and John Cashion3 to enable defendant to
prepare for the pending evidentiary hearing.” [Dkt. 299 at 1]. In the motion, Stoltenberg
stated that such a court order was required because the Government had previously
reported, when served with a subpoena for the recordings, that the recordings had been
“purged, deleted, and destroyed.” [Dkt. 299 at 2].
On February 14, 2020, at Dkt. 305, the Government filed a Response in opposition
to Stoltenberg’s motion to return property. [Dkt. 299]. In the Response, the Government
argued that, because Stoltenberg neither owned, nor was legally entitled to possess, the
recordings, and the purpose of F.R.C.P. Rule 41(g) is to provide “an avenue for defendants
to seek to recover property unlawfully searched and seized by the government,” the motion
should be denied.4 The Government also argued that the motion should be denied on other
grounds, among them: 1) “the government did not unlawfully search for and seize the
2 Dkt. 356 at 13, lns. 18-20 (Transcript of August 2, 2019 Status Conference).
3 The reference to a phone recording between Stoltenberg and John Cashion appears to be
in err. A phone call was made to the Law office of Cashion Gilmore, but—based upon this
Court’s in-camera review of the call, provided to this Court at Dkt. 341, along with 12 other
call recordings—it was placed by another inmate, using Stoltenberg’s pin.
4 Dkt. 299 at 1-2. (citing United States v. Van Cauwenberghe, 934 F.2d 1048, 1061 (9th
Cir. 1991), in support of its assertion that the Court “may deny Stoltenberg’s motion if he
is not entitled to lawful possession of the audio recordings.”). The Government argued that
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recordings,” because its access was inadvertent and with the permission of SECURUS, the
lawful possessor of the recordings; 2) “the calls were not privileged attorney-client
communications because they occurred over a monitored line;” 3) “even if they were
privileged, Stoltenberg likely waived the privilege because an automated message at the
start of each call warned Stoltenberg and the attorneys that the call was subject to being
monitored and recorded;” and 4) “Stoltenberg has not been prejudiced because no one who
accessed any of the calls gleaned trial strategies or other sensitive information and
communicated it to the prosecutors in this case.” [Dkt. 305 at 2.].
Hearings on motions relating to the potentially privileged jail calls containing
attorney-client communications were held on August 12, 2019; September 11, 2019;
September 25, 2019; October 8, 2019; October 28, 2019; and March 9, 2020. [Docs. 179,
194, 221, 222, 226, 238, 330]. On March 17, 2020, at Dkt. 349, this Court held an
evidentiary hearing on Stoltenberg’s Motion for Return of Property, at Dkt. 299, that
focused upon the question of “when the calls were purged and whether or not that was done
in violation of a court order.” [Dkt. 373 at 9, lns. 4-5].
On March 16, 2020, in compliance with this Court’s order at a March 9, 2020 status
conference [Dkt. 330], the Government provided this Court with recordings of nine calls
to Danee Pontious’ telephone number, one to Dunnington Babb’s (of the Cashion Gilmore
law office) telephone number, and three with Bradley Carlson’s telephone number, for in
camera review.5 [Dkt. 341]. On April 24, 2020, this Court issued an order on its in-camera
5 See Dkt. 420 at 2 for table identifying the calls provided to court.
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review of those 13 calls, concluding that they “do not contain material information related
to defense preparation, plea negotiations, or discovery review, and THEREFORE, do not
contain sensitive information.” [Dkt. 375 at 4]. The Government subsequently, at a June 4,
2020 hearing, confirmed that those 13 calls had “all been provided in discovery to the
defendant.” [Dkt. 433 at 8].
For the foregoing reasons, the motion at Dkt. 299 is DENIED as MOOT.
II. 	BACKGROUND.
Batches 1, 2, and 3 of the call recordings6 have already been provided to
Stoltenberg.7 The Government has acknowledged that there were calls—outside of batches
1, 2, and 3—between Stoltenberg and Attorney Bradly Carlson “that were accessed both
by the FBI and the Department of Corrections” but that were not included in the three
batches because, per the Government, they were not produced to the U.S. Attorney’s
office.8
6 At the August 12, 2019 status conference, the batches of phone calls were identified as
Batch 1 (June 26 to July 24, 2018); Batch 2 (July 25 to December 6, 2018); and Batch 3
(December 7, 2018 to the date of the hearing, August 12, 2019). Dkt. 337 at 18 (transcript
of status conference). The ten potentially privileged calls originally identified by the U.S.
Attorney’s office were among the second batch of calls.
7 See Dkt. 359 at 12, ln. 21 – 13, ln. 3 (Transcript of March 9, 2020 Status Conference):
MR. CORSO [the Government]: Batches 1, 2, and 3 have now been produced
to the defense. Batches 1 and 2 were produced by the U.S. Attorney's Office
in the normal course of discovery. Batch 3, because we didn't want the calls
in our office . . . we had the FBI give the calls directly to Mr. Heritage.
See also Id. at 14 ln. 13 (“MR. HERITAGE: I have Batch 1, 2, and 3.”).
8 Dkt. 359 at 13, lns. 10-11. Id. at 13, lns. 18-25:
What our understanding is is Knapp[, of the Department of Corrections,]
purged the calls, all the calls to Carlson from the system, or -- and instructed
Securus to do so, and he did it several months before the jail call issue arose
in these proceedings, so months before we were aware of the jail call issue.
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According to the Government, the additional calls were purged by DOC prior to this
Court’s order to preserve the calls.9
III. 	ANALYSIS.
Based upon the information provided to this Court, the Government currently
possesses no recordings of Stoltenberg’s jail calls beyond those which Stoltenberg already
possesses. Stoltenberg’s motion to return property is, accordingly, DENIED as MOOT.
While, because the motion is moot, it is unnecessary for this Court to engage in
further analysis, the Court notes that, were the motion not moot, it would be denied for the
reason that Rule 41(g) in not the appropriate avenue for Stoltenberg to seek copies of
recordings he neither possessed, not was entitled to possess, in the first instance.
Per Federal Rules of Criminal Procedure, Rule 41 (g): “[a] person aggrieved by an
unlawful search and seizure of property or by the deprivation of property may move for
the property's return.” In this case, Stoltenberg alleges that he was “aggrieved[,] because
the [sic] Attorney-Client Confidential communications should not have been accessed by
a member of the prosecution team. . . [and] deprived[,] because he needs these accessed
phone recordings [between Attorneys Bradley Carlson, Danee Pontius, and John Cashion]
to prepare for the pending evidentiary hearing [and trial].”10
As the Ninth Circuit has explained, however, a Rule 41(g) motion may be properly
denied when “the defendant is not entitled to lawful possession of the seized property, the
And then months -- additional months before the Court's instruction to me to
direct the FBI to preserve the third batch of calls.
9 Dkt. 359 at 16, lns. 23-25.
10 Dkt. 299 at 3-4.
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property is contraband or subject to forfeiture or the government’s need for the property as
evidence 	continues.”11 	In 	this 	case, 	independent 	of 	the 	question 	of 	whether 	the
Government’s acquisition of the call recordings was lawful, there is no evidence that
Stoltenberg himself ever owned, or was legally entitled to possess, the recordings of calls
he made using the Securus system.
Rule 41(g), which provides an avenue for a movant to request the return of property,
is, accordingly, not the appropriate avenue for Stoltenberg to seek copies of recordings he
neither possessed, not was entitled to possess, in the first instance.
IV. 	CONCLUSION.
The Motion at Dkt. 299 is, accordingly DENIED as MOOT.
DATED this 27th day of July, 2021, at Anchorage, Alaska.
/s/ Matthew M. Scoble
UNITED STATES MAGISTRATE JUDGE
11 United States v. Fitzen, 80 F.3d 387, 388 (9th Cir. 1996). See also United States v. Mills,
991 F.2d 609, 612 (9th Cir. 1993).
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