United States v. Joseph Brice ( 2014 )

FILED
NOT FOR PUBLICATION SEP 08 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30166
Plaintiff - Appellee, D.C. No. 2:11-cr-00075-LRS-1
v.
MEMORANDUM*
JOSEPH JEFFEREY BRICE, aka Joseph
Jeffrey Brice,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted August 28, 2014
Seattle, Washington
Before: HAWKINS, GRABER, and GOULD, Circuit Judges.
Defendant Joseph Brice (“Brice”) pled guilty to manufacturing an unregistered
firearm, in violation of 26 U.S.C. § 5861(f), and attempting to provide material
support to terrorists, in violation of 18 U.S.C. § 2339A(a). He appeals (1) the denial
of his Fourth Amendment motion to suppress evidence seized from his jail cell and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(2) the denial of his motion to dismiss the indictment, suppress evidence, recuse the
judge, and/or remove the U.S. Attorneys’ Office and Probation Office from the case
for an alleged violation of his Sixth Amendment rights. We affirm.
The district court did not err by denying Brice’s Fourth Amendment motion to
suppress evidence seized from his jail cell. As this circuit and the Supreme Court
have held, Brice had no reasonable expectation of privacy in his cell and cannot assert
a claim for a warrantless search under the Fourth Amendment. See Hudson v. Palmer,
468 U.S. 517, 525–26 (1984) (“[W]e hold that society is not prepared to recognize as
legitimate any subjective expectation of privacy that a prisoner might have in his
prison cell and that, accordingly, the Fourth Amendment proscription against
unreasonable searches does not apply within the confines of the prison cell.”); United
States v. Hitchcock, 467 F.2d 1107, 1108 (9th Cir. 1972) (per curiam) (“We do not
feel that it is reasonable for a prisoner to consider his cell private. Therefore, the
search did not violate the limitations of the Fourth Amendment.”).
Nor did the district court abuse its discretion by denying Brice’s motion to
dismiss the indictment, remove the U.S. Attorney’s Office and Probation Office,
recuse the judge, and/or suppress all 300+ pages seized from his jail cell because the
government had seized five pages of alleged attorney-client privileged material. Of
the five claimed privileged papers, the district court concluded that only one page was
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potentially protected work product. The court also found that none of the documents
was readily apparent as privileged material, nor did the documents reveal any critical
defense strategy, nor were they particularly relevant or useful for sentencing purposes.
Under these circumstances—the inadvertent seizure of a few pages during an
otherwise legal search—the drastic sanctions sought by Brice were not warranted. Cf.
United States v. Garza-Juarez, 992 F.2d 896, 904 (9th Cir. 1993) (dismissal of
indictment may be a remedy for outrageous government conduct).
AFFIRMED.
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