Husbands and wives take note: your e-mail 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 December 13 upheld the bribery conviction of a man named Phillip Hamilton, a former member of the Virginia House of Delegates. Hamilton was sentenced last year to a prison term of more than nine years in prison.

Hamilton, who also worked in the Newport News public school system as an administrator and then a part-time consultant, argued that his e-mail 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, the appeals court said, can void the presumed confidentiality of communication between spouses. Prosecutors said Hamilton waived the privilege because he was using a work computer, and a work e-mail account, to transmit messages to his wife.

Fourth Circuit judges Diana Gribbon Motz and Henry Floyd, sitting with Judge Catherine Eagles of U.S. District Court for the Middle District of North Carolina, heard the case in October.

Hamilton’s lawyers, including Charles Lustig of Virginia Beach’s Shuttleworth, Ruloff, Swain, Haddad & Morecock, argued that at the time Hamilton sent the emails to his wife, in 2006, the public school system didn’t have a computer-use policy. (Lustig wasn’t immediately reached for comment Thursday evening.)

The appeals court said the school district adopted a policy before the investigation in 2009 of Hamilton. The policy, the court said, “expressly provides” that users have no privacy expectation.

Lustig said that 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, Lustig said, 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, prosecutors said, were included in the case to show motive in a scheme that financially benefited Hamilton.

“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.”

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