Federal authorities mistakenly recorded the constitutionally protected attorney-client phone calls of a man jailed for allegedly having about three-quarters of a pound of methamphetamine in June of 2018.
That’s according to court documents and testimony in court this month, where a judge and attorneys on both sides are trying to figure out how to proceed with 36-year-old Edwin Stoltenberg, who is charged with possession of meth with intent to distribute and being a felon in possession of a gun.
Under the Constitution, Stoltenberg is entitled to legal representation, and courts have long held that right depends on communication between a defendant and their attorney remaining confidential.
Federal prosecutors say Stoltenberg’s ability to defend himself has not suffered, but Stoltenberg disagrees.
“It’s now an ethics violation and a big violation of my rights and a gross abuse of power,” Stoltenberg said in a handwritten letter from jail. “It’s time to hold the people in charge accountable. The ones that create the laws have to abide by the laws also.”
Stoltenberg’s case is snarled in court, but an alleged accomplice has already signed a plea agreement in which prosecutors laid out a narrative for the charges:
They say the FBI learned Stoltenberg planned to take the 330 grams of meth to Valdez, and when an Alaska State Trooper started following him in Palmer, Stoltenberg drove to a residence, where the accomplice helped hide him in an attic.
Troopers eventually got Stoltenberg out of the attic and arrested him on outstanding state charges, but they didn’t get the meth.
As Assistant U.S. Attorney Stephen Corso told a judge at an Aug. 12 hearing, Stoltenberg hid the drugs in the attic, so the FBI recorded his phone calls from jail.
“When Mr. Stoltenberg was flushed out of the attic, the troopers did not do a comprehensive search of the attic,” Corso said. “From the jail Mr. Stoltenberg made a sequence of phone calls to two of his associates, and he was very adamant that they should go to the apartment and search the attic.”
The FBI ultimately learned that it was Leon Bradford, the accomplice who pleaded guilty, who took Stoltenberg’s meth.
Then, with Stoltenberg still jailed, a summer intern at the FBI was logging secretly recorded phone calls and discovered 10 recordings of Stoltenberg’s calls with a defense attorney.
Now a judge is considering possible remedies, including a “taint review” to look into whether Stoltenberg’s prosecution has been tainted.
“As the saying goes, ‘Just because you’re paranoid doesn’t mean they’re not out to get you,” Judge Matthew Scoble said at the Aug. 12 hearing. “It could be something nefarious. It could not be. Certainly the world’s an imperfect place, and mistakes are made all the time, and I have no idea where this would fall.”
The federal prosecutors with the U.S. Attorney’s Office say they are not out to violate defendants’ right to confidential conversations with their attorneys. But they blame the two defense attorneys for not registering their phone numbers with the phone company contracted by the Department of Corrections, which is called Securus.
“It looks to us that we inadvertently came into possession of the calls because defense lawyers did not register their phone numbers in the Securus system,” Chloe Martin, a spokesperson for the U.S. Attorney’s Office, said in an email. “We understand that when defense lawyers register their phone numbers, the system does not record calls from inmates to those numbers.”
Martin said local defense attorneys are “well aware” of the need to register their phone numbers with Securus.
Martin and Corso said the intern was the only person who heard anything in the recordings, and only in the very first call they logged. And when the intern recognized the nature of the phone call, they were able to use the phone numbers to find the other attorney-client phone calls without listening to them.
“No one on the prosecution team, to our knowledge, has listened to any of those 10 calls,” Martin said. “Our office has wiped those 10 calls from our discovery and network systems. Stoltenberg has suffered no prejudice.”
Of the two attorneys the FBI accidentally recorded in the Stoltenberg case — both of whom he fired before representing himself for a time — one did not return a call seeking comment, and the other declined to comment. Stoltenberg’s current attorney, Greg Heritage, also declined to comment, but Heritage told Judge Scoble in the Aug. 12 hearing he found it unlikely that his predecessors had not registered their numbers.
Even if they hadn’t, the burden should not be on the defense attorneys, said Jeff Robinson, the president of the Alaska Association of Criminal Defense Lawyers and an attorney at Anchorage law firm Ashburn and Mason. Robinson said he found it surprising the federal prosecutors would blame the accidental recordings on Stoltenberg’s defense attorneys.
“If the inmate believed that his calls with his attorney were being listened to, he would not be free to speak and the lawyer’s ability to defend the case would be severely diminished,” Robinson said in an email. “I am not sure what internal procedures the FBI or U.S. Attorney’s Office undertakes to vet out attorney-client calls, but I am 100 percent certain that a lawyer’s alleged failure to have a Securus account does not in any way waive the privileged and constitutionally protected nature of these calls.”
Robinson pointed to a Kansas case also involving Securus. The Black Case started with a large-scale drug investigation at a private prison, and when it was discovered prosecutors had recordings of defendants and their attorneys, the federal judge in that case initiated a review, in part to find a solution to the problem of the phone system recording attorney-client phone calls.
Judge Julie Robinson wrote in her ruling on the case that the federal prosecutors had not cooperated with the review, and she described a pattern of misconduct.
“The allegations of surreptitious incursion into attorney-client communications that triggered the
… investigation in this case have far reaching implications in scores of pending cases,” Judge Robinson wrote.
The investigation took three years and resulted in Robinson throwing out one of the defendant’s indictments altogether, among other rulings against the prosecutors.
Whether the prosecution in Alaska of Edwin Stoltenberg is in jeopardy by the recordings remains to be seen. Defense attorney Jeff Robinson said that will come down to whether the prosecutors really heard nothing of the content of the calls.
“If there was prejudice because the prosecutors now know about the content of the calls and can’t ‘unring’ the bell, there could be some consequences,” Robinson said.
Corso, the prosecutor, said in a brief interview that is not the case, and that he and the rest of the Alaska U.S. Attorney’s Office have “great respect for attorney-client privilege.”