Husbands and wives take note: Your email communication isn’t always protected from the eyes of prosecutors.
Rejecting a marital communication privilege argument, the U.S. Court of Appeals for the Fourth Circuit on Thursday upheld the bribery conviction of Phillip Hamilton, a former member of the Virginia House of Delegates, who was sentenced last year to more than nine years in prison.
Hamilton, who also worked in the Newport News public school system as an administrator and part-time consultant, argued his email communication with his wife was protected and could not be used as evidence against him. A three-judge panel didn’t buy the argument.
Voluntary disclosure of communication between spouses can void the presumed confidentiality of communication between spouses, the appeals court said. Prosecutors said Hamilton waived the privilege because he was using a work computer and a work email account to transmit messages to his wife.
Circuit Judges Diana Gribbon Motz and Henry Floyd, sitting with U.S. District Judge Catherine Eagles of North Carolina, heard the case in October.
Hamilton’s lawyers, including Charles Lustig of Virginia Beach’s Shuttleworth, Ruloff, Swain, Haddad & Morecock, argued the public school system didn’t have a computer-use policy when Hamilton was sending the emails in 2006. Lustig wasn’t available for comment on the decision by deadline.
The appeals court said the school district adopted a policy before the Hamilton investigation in 2009. The court said the policy “expressly provides” users have no privacy expectation.
Lustig said Hamilton did not retroactively waive the spousal privilege. In court papers, Lustig called the marital communication shield a “time-honored” privilege that should have protected Hamilton’s electronic correspondence. The trial judge didn’t cite “a single case to support its novel view” of a retroactive waiver of the marital privilege.
“At the time that Hamilton and his wife exchanged the emails at issue in this case, it was objectively reasonable for the Hamiltons to believe that their communications were confidential, and there is no evidence to suggest that they waived the privilege,” Lustig said in court papers.
The Electronic Privacy Information Center, which submitted a friend-of-the-court brief, called it “extreme” to require an employee to dig through archived emails to remove any that are personal and confidential every time an employer adopts a computer-use policy.
“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,” Motz wrote. “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.”
Assistant U.S. Attorney Richard Cooke in Richmond called Hamilton a “powerful member” of the Virginia Legislature who served for more than two decades. Hamilton’s communication with his wife were included in the case to show motive in a scheme that financially benefited Hamilton, prosecutors said.
“These public offices conferred on Hamilton significant power over legislation that spends public funds, especially on education,” Cooke said in a court brief. “Hamilton ultimately used this power, as a jury unanimously found, to commit bribery and extortion.”