Case 2:16-cr-00046-GMN-PAL Document 736 Filed 10/03/16 Page 1 of 7

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RENE L. VALLADARES
Federal Public Defender
Nevada State Bar No. 11479
WILLIAM CARRICO
Nevada State Bar No. 003042
Assistant Federal Public Defender
BRENDA WEKSLER
Nevada State Bar No. 8124
Assistant Federal Public Defender
RYAN NORWOOD
Assistant Federal Public Defender
411 E. Bonneville Avenue, Suite 250
Las Vegas, Nevada 89101
(702) 388-6577/Phone
(702) 388-6261/Fax
Ryan_Norwood@fd.org
Attorneys for Ryan W. Payne

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

Case No. 2:16-cr-046-GMN-PAL

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Plaintiff,
v.
RYAN W. PAYNE,

DEFENDANT RYAN W. PAYNES

MOTION FOR APPOINTMENT OF
SPECIAL MASTER

Defendant.

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Certification: This Motion is timely filed.

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COMES NOW defendant Ryan W. Payne, by and through his counsel of record,

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WILLIAM CARRICO, RYAN NORWOOD, and BRENDA WEKSLER, and moves this Court

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for an order appointing a special master to inquire into: (1) the recording of confidential,

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privileged calls between detainees at CCA-Pahrump and their attorneys, (2) CCA-Pahrumps

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disclosure of those recordings to the U.S. Attorneys Office, (3) the U.S. Attorneys Offices

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dissemination of those recordings to co-defendants of the detainees being recorded, and (4) the

Case 2:16-cr-00046-GMN-PAL Document 736 Filed 10/03/16 Page 2 of 7

U.S. Attorneys Offices use of those recordings in criminal prosecutions. A Memorandum of

Points and Authorities is attached hereto.

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DATED this 3rd day of October, 2016.

RENE VALLADARES
Federal Public Defender
By: /s/ William Carrico
WILLIAM CARRICO
Assistant Federal Public Defender
By: /s/ Ryan Norwood
RYAN NORWOOD
Assistant Federal Public Defender

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By: /s/ Brenda Weksler

BRENDA WEKSLER
Assistant Federal Public Defender

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Case 2:16-cr-00046-GMN-PAL Document 736 Filed 10/03/16 Page 3 of 7

MEMORANDUM OF POINTS AND AUTHORITIES

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I.

STATEMENT OF FACTS

As explained in Mr. Paynes simultaneously filed Motion to Compel and for Order to

Cease and Desist Recording, undersigned counsel has a good faith belief that the Nevada

Southern Detention Center in Pahrump, Nevada, a jail facility operated by the Corrections

Corporation of America (CCA-Pahrump), is recording pretrial detainees privileged,

confidential phone conversations with their attorneys. Counsel has a good faith basis to believe

CCA-Pahrump hands over recordings of these privileged, confidential conversations to the U.S.

Attorneys Office for the District of Nevada (USAO), which has in turn produced them during

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discovery to co-defendants of the detainees being recorded. If Mr. Paynes attorney-client calls

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have been recorded and divulged, these facts make out a prima facie showing that his Sixth

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Amendment rights have been violated. See United States v. Danielson, 325 F.3d 1054, 1071

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(9th Cir. 2003).

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Mr. Payne has requested an evidentiary hearing to investigate the extent of CCA-

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Pahrumps recording, CCA-Pahrumps policies regarding recording attorney-client calls, and

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the USAOs rules and procedures for using recordings of those calls. The information obtained

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through that hearing should assist the court in its duty to fashion a remedy that put[s] [Mr.

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Payne] back in the position he would have been in if the Sixth Amendment violation never

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occurred. Loher v. Thomas, 825 F.3d 1103, 1122 (9th Cir. 2016) (internal quotation marks

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omitted).

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But that information cannot provide a remedy to the hundreds of other pretrial detainees

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housed at CCA-Pahrump whose confidential, privileged attorney-client phone calls may also

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have been recorded. Attorneys for those pretrial detaineesincluding the Office of the Federal

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Public Defender, which represents dozens of detainees currently held at CCA-Pahrumpare

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sure to file motions based on the information in Mr. Paynes Motion to Compel. That

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information will support motions to compel discovery, motions to dismiss, motions to suppress,

Case 2:16-cr-00046-GMN-PAL Document 736 Filed 10/03/16 Page 4 of 7

motions for new trial, motions to set aside plea agreements, and motions for disqualification,

among others. In addition, defendants who have already been sentenced are likely to use

evidence of CCA-Pahrumps recording to appeal their sentences or move to set aside their

convictions under 28 U.S.C. 2255 since plea agreements generally do not bar appellate or

collateral attack based on prosecutorial misconduct.

Given the large number of defendants potentially affected, litigation relating to CCA-

Pahrumps recording of privileged attorney-client calls could become quite cumbersome,

involving extensive review of documents and phone recordings. Centralizing fact-finding for

all defendants potentially involved will avoid the need for CCA-Pahrump and the USAO to

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respond to multiple discovery requests, appear at multiple evidentiary hearings, or coordinate

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with numerous defense counsel. It will also minimize the administrative burden on defense

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counsel and this Court. Mr. Payne therefore moves the Court to appoint a special master to

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make the expected litigation more manageable and efficient. The special master should be

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tasked with determining:

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(1)

CCA-Pahrumps past and current policies with regard to recording attorneyclient phone calls;

(2)

when and under what circumstances CCA-Pahrump has disclosed recordings of

attorney-client calls to third parties, including but not limited to the USAO;

(3)

when and under what circumstances the USAO has sought production from

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CCA-Pahrump of attorney-client phone calls, including:

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(a)

whether the USAO informed counsel or the defendant;

(b)

whether the USAO used those recordings to investigate or prosecute a

criminal case;

(c)

whether the USAO disseminated those recordings or made them

available to third parties; and

(d)

whether those materials are still in the USAOs possession; and

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(4)

when and under what circumstances the USAO has inadvertently come into
possession of attorney-client calls recorded at CCA-Pahrump, including:

Case 2:16-cr-00046-GMN-PAL Document 736 Filed 10/03/16 Page 5 of 7

(a)

how the USAO came into possession of those recordings;

(b)

whether the USAO informed counsel or the defendant;

(c)

whether the USAO used those recordings to investigate or prosecute a

criminal case;

(d)

whether the USAO disseminated those recordings or made them

available to third parties; and

(e)

whether the USAO is still in possession of those recordings.

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II.

LEGAL AUTHORITY

Although the Federal Rules of Criminal Procedure do not expressly authorize the

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appointment of special masters in criminal cases, the Ninth Circuit has held the Rules give

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district courts substantial discretion to manage their dockets. United States v. Hernandez,

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251 F.3d 1247, 1251 (9th Cir. 2001); cf. Fed. R. Civ. P. 53 (permitting district courts to appoint

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special masters to preside over certain civil matters). Under Federal Rule of Criminal Procedure

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57(b), a judge may regulate practice in any manner consistent with federal law, these rules,

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and the local rules of the district. This rule recognizes, Courts have (at least in the absence

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of legislation to the contrary) inherent power to provide themselves with appropriate

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instruments required for the performance of their duties. United States v. Ray, 375 F.3d 980,

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993 (9th Cir. 2004) (quoting In re Peterson, 253 U.S. 300, 312 (1920). The Ninth Circuit has

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construed this inherent power liberally:

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It is recognized that wide latitude is reposed in the district court to carry out
successfully its mandate to effectuate, as far as possible, the speedy and orderly
administration of justice. A federal court has the responsibility to supervise the
administration of criminal justice in order to ensure fundamental fairness. It
would be ill-advised to limit improvidently this inherent power for fear of
misuse. The firing point of the legal system is with the trial judge who is best
situated to administer the law and protect the rights of all.

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United States v. Richter, 488 F.2d 170, 173-74 (9th Cir. 1973) (internal quotation marks

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omitted).

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At least one circuit has cited Rule 53 to support appointment of a special master in

criminal cases. First Iowa Hydro Elec. Co-Op. v. Iowa-Ill. Gas & Elec. Co., 245 F.2d 613, 627

(8th Cir. 1957) ([T]he Court may, in its discretion, make appointment of a Master to assist in

any of the incidents of a proceeding before it, whether civil or criminal, so long as there is no

infringement upon the right of trial by jury or any prejudice to other substantive right.).

Without discussing the source of such authority, the Ninth Circuit has approved the district

courts appointment of a special master to handle discovery in a criminal case. See United

States v. Griffin, 440 F.3d 1138, 1140-41, 45. This Court has inherent authority to appoint a

special master to handle ongoing inquiry into CCA-Pahrumps and the USAOs handling of

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confidential, privileged attorney-client communications.

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CONCLUSION

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The recording of privileged attorney-client phone calls, CCA-Pahrumps disclosure of

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those calls to the USAO, and the USAOs dissemination of them in discovery, may have

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violated hundreds of pretrial detainees Sixth Amendment rights to the effective assistance of

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counsel. To streamline those prisoners anticipated litigation, Mr. Payne asks this Court to

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appoint a special master tasked with finding and reporting on the relevant facts.

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DATED this 3rd day of October, 2016.

Respectfully submitted,
RENE L. VALLADARES
Federal Public Defender
By: /s/ William Carrico
WILLIAM CARRICO
Assistant Federal Public Defender
By: /s/ Ryan Norwood
RYAN NORWOOD
Assistant Federal Public Defender
By: /s/ Brenda Weksler
BRENDA WEKSLER
Assistant Federal Public Defender

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CERTIFICATE OF ELECTRONIC SERVICE

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The undersigned hereby certifies that she is an employee of the Federal Public Defender

for the District of Nevada and is a person of such age and discretion as to be competent to serve

papers.

That on October 3, 2016, she served an electronic copy of the above and foregoing

DEFENDANT RYAN W. PAYNES MOTION FOR APPOINTMENT OF SPECIAL

MASTER by electronic service (ECF) to the persons named below:

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DANIEL G. BOGDEN
United States Attorney
ERIN M. CREEGAN
Assistant United States Attorney
NADIA JANJUA AHMEN
Assistant United States Attorney
NICHOLAS DICKINSON
Assistant United States Attorney
STEVEN MYHRE
Assistant United States Attorney
501 Las Vegas Blvd. South
Suite 1100
Las Vegas, NV 89101
/s/ Lauren Pullen
Employee of the Federal Public Defender

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