US v. Lewis, No. 03-2097, upholds the denial of a motion to suppress recordings of phone calls made by inmates under 18 U.S.C. § 2511(2)(c). In this case, the inmates were on notice that their calls would be monitor (unless they were pre-cleared clergy or lawyers). The inmate-turned-defendant had argued that the prison’s rules said that the calls would be intercepted only for internal security purposes, and not by “outside” law enforcement officers. The court found that under 18 U.S.C. § 2510(7), the officer who did intercept the calls was, indeed, empowered to intercept them, because: 1) the officer was empowered (via a statute, a regulation, and a policy) “to investigate potential criminal violations in the interest of prison security”; 2) the recording was made in the normal course of the officer’s duties (because it wasn’t a trap); and 3) there was no violation of 18 U.S.C. 2517, by playing the tapes to the outside officers.
A Booker argument was raised. The court found that “Although there is a Booker error in this case, Lewis's argument misses the mark. The Booker error is not judicial factfinding. Rather, the error is that ‘the defendant's Guidelines sentence was imposed under a mandatory system.’” and remanded.