*1 TITLE: United States of America, Plaintiff v. Terry Lynn Nichols, Defendant.

TOPIC: MOTION TO SUPPRESS EVIDENCE DERIVED FROM TAMPERING WITH TERRY LYNN NICHOLS' PRIVATE CORRESPONDENCE

DOCKET-NUMBER: 96-CR-68-M

VENUE: U.S. District Court for the District of Colorado.

YEAR: Filed: July 17, 1997

JUDGE: Hon. Richard P. Matsch, Chief District Judge

ATTORNEY(S): Michael E. Tigar, Esq., Ronald G. Woods, Esq., N. Reid Neureiter, Esq., Adam Thurschwell, Esq., Jane B. Tigar, Esq., Denver, For the Defendant Terry Lynn Nichols.

TEXT:

Mr. Nichols, through counsel, asks this Court to forbid future opening, reading, copying and/or dissemination of his mail to the FBI and prosecution. Second, Mr. Nichols, through counsel, asks this court to order the prosecution to turn over any other copies of mail to or from Mr. Nichols while prison, either at F.C.I. Englewood or F.C.I. El Reno, in its or the FBI's or the Bureau of Prisons' possession. Finally, Mr. Nichols respectfully requests that this Court conduct an evidentiary hearing to determine the identities of those agents who transmitted and those who received copies of Mr. Nichols' correspondence; to discover how much mail the FBI and the prosecution have seen in addition to that provided to Mr. Nichols' defense team on December 17, 1996; to discover what information the prosecution has unlawfully gained; and to prohibit the prosecution from using at trial or in its investigation any of the materials or fruits thereof to which it has had illegal access.

As shown below, the officials at F.C.I. Englewood and F.C.I. El Reno, the FBI, and the prosecution have violated Mr. Nichols' constitutional right to privacy and his rights under the First, Fourth and Sixth Amendments and have even violated prison regulations by reading, copying and distributing to the FBI Mr. Nichols' outgoing mail. These actions may also violate 18 U.S.C. s 1702 and Mr. Nichols' marital communications privileges. We know that prison officials check Mr. Nichols' mail for contraband. This motion deals with a pattern of intrusion that goes far beyond the security regulations and violates the law.

I. FACTS: AN UNUSUAL DISCOVERY.

a. The dates of the correspondence and their FBI stamped dates tell a story of on-going invasion of Mr. Nichols' constitutional right to privacy of a period of over a year and a half that may be continuing today.

In December of 1996, the prosecution turned over to Mr. Nichols' counsel a package of prison correspondence. The cover letter, from prosecutor Beth Wilkinson, is dated December 17, 1996. [EXHIBIT A: Letter from Beth Wilkinson, December 17, 1996.] This particular delivery of materials included copies of Mr. Nichols' outgoing and incoming mail from FCI Englewood. [ (SEALED) EXHIBIT B.] This delivery also included copies of Timothy James McVeigh's incoming mail: One item was from one of Mr. McVeigh's court- appointed lawyers, Randall Coyne; it includes an envelope properly and clearly marked as "Special Mail"--that is, mail from the defendant's attorney which is only to be opened in the presence of the prisoner and is not subject to reading or review by anyone but the prisoner. [ (SEALED) EXHIBIT C: Mail belonging to Timothy James McVeigh.]

*2 Prosecutor Beth Wilkinson states in her cover letter, Exhibit A, that she sends us these materials in response to our request. However, Mr. Nichols and his lawyers had never requested these materials. It had not occurred to Mr. Nichols' lawyers that the government would possess Mr. Nichols' personal correspondence and use it for their investigation and prosecution. The bottom of the letter shows that the letter itself was photocopied (it is marked "p.c.") to Stephen Jones, Mr. McVeigh's attorney. Mr. Nichols' attorneys do not know whether copies of the letters also went to Mr. Jones.

The materials appear to have been turned over to the FBI by officials at F.C.I. Englewood and F.C.I. El Reno. As the attached samples show, a person or persons, presumably at one or both of the two prisons where Mr. Nichols has been held, has marked items of Mr. Nichols' correspondence as "outgoing--FBI". The items also bear an FBI-Oklahoma City stamp with a date and someone's initials and the words "lab" written in script where the printing indicates "serialized" and "indexed". Someone at the FBI has marked the mail, underlining names and running a line through them, a standard FBI practice for indexing and filing evidence under that person's name. See, for example, Exhibit B, Tabs 28, 29, 50, 54. In short, the FBI, with the cooperation of the Bureau of Prisons, has been treating Mr. Nichols' private correspondence as fodder for their investigation on behalf of the prosecution.

Dates of the correspondence included within the December 17, 1996 delivery ranges from July 1995 to December 1996. For example, a letter Mrs. Nichols wrote to her husband dates back to July 1995 and is FBI date-stamped July 16, 1996. [ (SEALED) EXHIBIT B, Tab 45: Letter from Marife Nichols to Terry Lynn Nichols.] While most of the correspondence bears this July 16, 1996 FBI Oklahoma City stamp, other stamped dates include: July 24, 1996, September 10, 1996, October 17, 1996 and October 24, 1996.

One peculiar sample is a letter Terry Nichols wrote and dated by hand October 16, 1996. Handwritten in another hand is "FBI 8-16-96" and stamped on the same piece of paper is September 23, 1996, FBI Oklahoma City. [ (SEALED) EXHIBIT B, Tab 38: Letter from Terry Nichols, dated October 16, 1996.] This would imply that Mr. Nichols advance-dated or mis-dated his letter by two months.

The range of dates of the correspondence the prosecution has copied for the defense shows that the practice of reading Mr. Nichols' incoming and outgoing mail and copying it for the FBI and ultimately the prosecution is not an isolated, one-time "error". Rather, it appears to be an on-going deliberate, if not routine process.

b. How might the prosecution benefit from reading this correspondence?

From reading this correspondence, the prosecution has, for example, gained information about:

i. The workings of Terry Nichols' defense and his relationship with his defense team.

*3 ii. The methodology of one of Mr. Nichols' consulting experts.

iii. A view of Mr. Nichols' relationship with his family and his wife including copies of spousal communications to which they are not entitled under the marital-communications privilege.

iv. Mr. Nichols' personality, friends, and associates.

v. Leads--See Exhibit B, Tabs 28, 29, 50, 54. See also Exhibit B, Tab 122:

A letter of August 7, 1996 from one of Mr. Nichols' friends bears underlining of names of people mentioned in the letter. The underlining appears to match the pen used to write "FBI 8-12-96, and there is writing next to the two underlined names with the numerals 1,2 circled and initialed.

II. THE PRISON SHOULD NOT BE READING MR. NICHOLS' OUTGOING CORRESPONDENCE.

a. The freedom to write and receive private letters exists behind prison walls.

A central principle of our law regarding prisoners is that "[t]here is no iron curtain drawn between the constitution and the prisons of this country." Bell v. Wolfish, 441 U.S. 520, 545, (1979) citing Wolff v. McDonnell. "Prison walls do not form a barrier separating prison inmates from the protections of the constitution," Turner v. Safley, 482 U.S. 78, 84 (1987), Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). Prison regulations have not eliminated all privacy for pretrial detainees nor their ability to correspond freely. As Mr. Justice Holmes observed over 75 years ago, "the use of the mails is almost as much a part of free speech as the right to use our tongues...." United State ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437 (1921) (dissenting opinion). See also: Blount v. Rizzi, 400 U.S. 410, 416 (1970), affirming this principle.

Of course, prisoners do, by definition, lose some of their freedoms. And prisons may lawfully regulate many aspects of prisoner correspondence in the interests of security and management of the prison. The Supreme Court has identified many of those freedoms lost and those retained in deference to the "delicate balance that prison administrators must strike between the order and security of the internal prison environment and the legitimate demands". Thornburgh v. Abbott, supra, at 407. Thornburgh v. Abbott, supra, addressed censorship of incoming publications. Procunier v. Martinez, 416 U.S. 396 (1974), limited by Thornburgh v. Abbott, supra, provides the constitutional standard of review for prison regulations that affect outgoing prisoner mail. Turner v. Safley, 482 U.S. 78 (1987), addressed inmate-to- inmate correspondence and found that a regulation allowing prison officials to forbid correspondence between non-related inmates was constitutional. In that case, the Court voiced the "reasonableness standard" which has come to apply to many prisoner's rights issues--that is, whether the regulations are "reasonably related to legitimate penological interests". Turner v. Safley, supra, at 89. In Bell v. Wolfish, supra, the Court upheld as constitutional a Bureau of Prisons rule restricting inmates' receipt of hardback books unless mailed directly from publishers, book clubs, or bookstores.

*4 However, prison regulations are not at issue here. It is the acts of prison officials that are at issue: F.C.I. Englewood and F.C.I. El Reno have gone far beyond the needs of institutional safety and penological concerns and indeed their own regulations. Mr. Nichols does not challenge a prison regulation at this time. Since F.C.I. Englewood says the prison does not read outgoing mail, and the Code of Federal Regulations cited below provides for privacy of outgoing mail under most circumstances, Mr. Nichols has no quarrel with such a regulation. Mr. Nichols does, however, challenge the practice of reading his outgoing mail and disseminating both that and his incoming mail to the FBI and the prosecution. Mr. Nichols' freedom to write letters and send them privately is a freedom that he has not lost by virtue of being a pretrial detainee--unless there is a demonstrated and articulated safety concern. 28 CFR s 540.14(a).

b. The Code of Federal Regulations provides a framework for prison mail policies.

The Code of Federal Regulations (CFR) outlines the rules for prison mail in the Bureau of Prisons. Federal prison staff may read "general" incoming mail of prisoners "as frequently as deemed necessary to maintain security or monitor a particular problem confronting an inmate." 28 CFR s 540.14(a). However, prison staff may not read incoming "special mail"--correspondence from persons including attorneys. Incoming "special mail" must be identified as such on the envelope and in be opened only in the presence of the inmate where it is checked for contraband but not read. 28 CFR s 540.12.

The rules for outgoing mail are:

. "Outgoing mail in minimum and low security level institutions, and of pretrial detainees in all institutions, may be sealed by the inmate and sent out unopened and uninspected. Staff may open an inmate's outgoing general correspondence:

(1) If there is reason to believe it would interfere with the orderly running of the institution, that it would be threatening to the recipient, or that it would facilitate criminal activity;

(2) If the inmate is on a restricted correspondence list;

(3) If the correspondence is between inmates [reference omitted]; or (4) If the envelope has an incomplete return address. [FN1]

FN1. Inmates "shall ensure" that they've marked each outgoing envelope with the inmate's name and register number, postal box, city, state and zip code. 28 CFR s 540.12(c).

End of FN.

28 C.F.R. s 540.14(b).

. "Outgoing mail in medium and high security level institutions and administrative institutions, except 'special mail' and mail from pretrial detainees, may not be sealed by the inmate and may be read and inspected by staff."

*5 28 CFR s 540.14(c). [emphasis added].

. "The Warden may reject correspondence, sent to or written by an inmate if it is determined detrimental to the security, good order, or discipline of the institution, to the protection of the public, or if it might facilitate criminal activity. Correspondence which may be rejected by a Warden includes, but is not limited to, correspondence which contains any of the following:

(1) Matter which is nonmailable under law or postal regulations;

(2) Matter which depicts, describes, or encourages activities which may lead to the use of physical violence or group disruption;

(3) Information of escape plots, of plans to commit illegal activities, or to violate Bureau rules or institution guidelines;

(4) Direction of an inmate's business [details omitted] ...

(5) Threat extortion, obscenity, or gratuitous profanity;

(6) A code;

(7) Sexually explicit material [details omitted] ...

(8) Contraband. [details omitted]."

28 CFR s 540.14(d).

. If an inmate is on restricted general correspondence, not because of a disciplinary event at the prison, the Warden "[s]hall advise the inmate in writing of the reasons the inmate is to be placed on restricted general correspondence." 28 CFR s 540.15(c)(2)(i).

c. F.C.I. Englewood's policy is not to read outgoing general correspondence including that of Mr. Nichols.

Jon May, paralegal at F.C.I. Englewood, told Mr. Nichols' attorneys, Michael B. Tigar and Ronald G. Woods, that the policy at F.C.I. Englewood is for the prison staff not to read outgoing general correspondence. Further, the staff at F.C.I. Englewood has never informed Mr. Nichols or his counsel that Mr. Nichols is on a restricted correspondence list. Mr. Nichols is not corresponding with other inmates, and from what we can see in the enclosed materials, the return address has been proper. Further, none of the mail in the batch provided by the prosecution meets any of the requirements of 28 CFR s 540.15(d)(1)-(8) for mail that may be censored. Mr. Nichols' mail is mailable under law or postal regulations, the letters do not depict, describe or encourage activities which may lead to the use of physical violence or group disruption, there are no escape plots (although there is a joke about one). Mr. Nichols has not threatened, extorted or written letters containing obscenity or "gratuitous profanity"; he has not written in code, sent sexually explicit material or contraband.

In addition to the fact that Mr. May said the prison doesn't do so, there is no legitimate security reason for the prison to be opening Mr. Nichols' outgoing mail and certainly no reason for it to copy and forward it to other branches of the Department of Justice.

III. Possible violations of 18 U.S.C. s 1702.

*6 The Code of Federal Regulations, in its section on inmate correspondence, does not provide for Bureau of Prison employees to send copies of inmate correspondence to anyone. In fact, interfering with Mr. Nichols' mail may be a violation of 18 U.S.C. s 1702:

"Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both."

Such behavior, interfering with mail in search of leads, is not unknown in the history of the FBI. United States v. Kearney, 444 F. Supp. 1290 (S.D.N.Y.1978).

The photocopies of letters and envelopes the prosecution gave Mr. Nichols' counsel show that the envelopes were stamped with United States Postal Service stamps and addressed. Mr. Nichols leaves the envelopes unsealed so that prison officials may check the mail for contraband.

IV. Interference with Mr. Nichols' private correspondence with his wife implicates his spousal communication privileges.

The mail the Bureau of Prisons copied to the FBI, which in turn shared with the prosecution, includes letters from Mr. Nichols to his wife and letters from Mrs. Nichols (Marife Nichols) to her husband. These communications are privileged communications between husband and wife. Blau v. United States, 340 U.S. 332 (1951) (confidential communication between husband and wife is privileged).

V. Violations of Mr. Nichols' First, Fourth and Sixth Amendment Rights.

Reading Mr. Nichols' personal correspondence, copying and distributing it to the FBI and prosecution also raises First, Fourth and Sixth Amendment issues.

a. Violations of the First Amendment.

"The right to receive and send mail is unquestionably protected by the first amendment." Wolfish v. Levi, 573 F.2d 118, 130 (2d Cir.1978), reversed and remanded on other grounds by Bell v. Wolfish, supra, citing Blount v. Rizzi, 400 U.S. 410 (1971). On certioriari, the government did not challenge the Second Circuit's condemnation of the practice of "randomly and routinely" reading social mail of inmates at the Metropolitan Correctional Center in New York. The Second Circuit affirmed the district court's conclusion that "since social visits and telephone calls are not monitored, the mail security justification was meaningless. He ordered the facility to refrain from reading inmate correspondence absent good cause." [FN2] Wolfish v. Levi at 130.

FN2. Mr. Nichols enjoys the privilege of social visits and phone calls that are, as far as he knows, unmonitored by the FBI and prosecution in this case. In fact, this Court ordered, DE 2530, entered November 20, 1996, that the Bureau of Prisons provide tapes of Mr. Nichols' prison phone conversations to Mr. Nichols' legal defense team and that "no employee of the Federal Bureau of Investigations [sic] and no member of the prosecution of this case, shall be given access by the Bureau of Prisons or any other government agency to Mr. Nichols' prison social conversations."

End of FN.

*7 As Judge Kaufman writes in Wolfish v. Levi: "It Cannot be gainsaid that the reading of mail by jail officials chills the expression of first amendment rights by correspondents inside and outside the institution. It takes little more than common sense to realize that a tender note, so important to the morale of the incarcerated individual, might never be penned if the writer knew that it would first be scrutinized by a guard." Wolfish v. Levi at 130. How much more chilling it must be to think--and now know--that one's private notes to one's spouse and family are scrutinized not just by the guards, but by the FBI and the prosecution.

The right to privacy of one's mail was recognized by the United States Supreme Court in Ex parte Jackson, 96 U.S. 727, 733 (1878): "The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be." Only with a warrant may such papers be invaded. This principle has been recognized in latter days. United States v. Leonard, 524 F.2d 1076, 1087 (2d Cir.1975), cert. denied, 425 U.S. 958 (1976).

The Supreme Court's recognition of a limited exception for international mail, United States v. Ramsey, 431 U.S. 606 (1977) does not avail the government here. Even that exception may not be used to open and read "mail which appears to contain only correspondence." 19 CFR s 145.3(b).

b. Violations of the Fourth Amendment.

The Fourth Amendment provides for the "right of the people to be secure in their persons, houses, papers, and effects ..." U.S.C.A. Const. Amend. 4. A remedy for an unlawful search and seizure, is suppression of that evidence and the fruits thereof. Wong Sun v. United States, 371 U.S. 471 (1963).

Prisoners and pretrial detainees do not lose all their privacy rights and the protections of the Fourth Amendment. "An individual's mere presence in a prison cell does not totally strip away every garment cloaking his Fourth Amendment rights, even though the covering that remains is but a small remnant." United States v. Cohen, 796 F.2d 20, 24 (2d Cir.1986), cert. denied, 479 U.S. 854 (1986), 479 U.S. 1055 (1987).

The prison's practice of copying and distributing Mr. Nichols' mail constitutes an unlawful search and seizure under the pretext of a security check for contraband. A holding of Hudson v. Palmer, 468 U.S. 517 (1984)-- that prisoners have no reasonable expectation of privacy protecting their cells from unreasonable searches--does not apply. In this case, we are not challenging a cell search for contraband--clearly a security issue. Rather, Mr. Nichols challenges the copying and distribution of his personal mail to the prosecution without his knowledge. In United States v. Cohen, supra, the Court, finding that Hudson did not apply, held that a pretrial search of an inmate's cell initiated by the prosecution and not by prison officials for security reasons, raised Fourth Amendment issues. If in this case, the prosecution or the FBI instigated the search of Mr. Nichols' mail beyond the normal search for contraband, then his Fourth Amendment rights have been violated. As in Cohen, an evidentiary hearing can establish the facts--in this case, we need to know who ordered the collection, copying and dissemination of Mr. Nichols' correspondence to the FBI and prosecution.

*8 Even if prison officials alone instigated the copying and dissemination of Mr. Nichols' correspondence, the correspondence and fruits thereof should be suppressed. In United States v. Hinckley, 672 F.2d 115 (D.C.Cir.1982) the court upheld suppression of personal papers and letters a correctional officer found and read during a contraband search of John Hinckley's cell. The Court affirmed the district court's holding that the officer "had no basis for unfolding the document and reading it in its entirety." Hinckley at 126. The trial court found that Mr. Hinckley "had never been informed that his personal papers would be read" and "[b]ecause the guards were not acting in accord with an established institutional practice or policy ... to maintain institutional or inmate security, there was no reasoned, principled decision by the prison administration entitled to deference. Instead, a serious invasion of Hinckley's right to privacy in his own papers was perpetuated by individual officers unguided by prison rules or even the instructions of their superiors." Hinckley at 131. Likewise, Mr. Nichols has not been informed that his mail was being read and shared with the FBI and the prosecution.

Mr. Nichols has a reasonable expectation of privacy of his outgoing mail in general, and of all types of his mail from the FBI and the prosecution. While Mr. Nichols' prison cell is not his home, "the Fourth Amendment protects people, not places." Katz v. United States, 389 U.S. 347, 351 (1967). Surely, Mr. Nichols has a reasonable expectation of privacy if prison officials tell him that his outgoing mail is checked for contraband but not read. And, Mr. Nichols also has a reasonable expectation of privacy from the prosecution and the FBI's reading of those materials.

C. Violations of the Sixth Amendment.

Finally, the reading and distribution of Mr. Nichols' mail raise Sixth Amendment concerns, as Mr. Nichols' outgoing correspondence contain his personal statements to which the prosecution has access outside the presence of his attorneys. See. e.g., Massiah v. United States, 377 U.S. 201 (1964). Similarly, a letter in which Mr. Nichols discusses with his wife an examination by his court-appointed physician [EXHIBIT B, Tab 4] should be protected from perusal by the prosecution and its contents and any fruits thereof suppressed. See. e.g., Satterwhite v. Texas, 486 U.S. 249 (1988).

VI. Conclusion.

For the reasons detailed in this motion, Mr. Nichols respectfully asks that this Court (1) conduct an evidentiary hearing to find out the scope and contents of all Mr. Nichols' mail the prosecution has acquired om the Bureau of Prisons and/or the FBI; (2) determine whether or not these items have been seized unlawfully and their seizure is a violation of Mr. Nichols' Fourth Amendment, statutory and regulatory rights and therefore their use as evidence, or the fruits thereof, should be suppressed; and (3) to order the Bureau of Prisons, the FBI and the prosecution to stop violating Mr. Nichols' privacy.