Pro Tip: Don't Plan Your Bribery Scheme in Your Email - Criminal Law - U.S. Fourth Circuit
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Pro Tip: Don't Plan Your Bribery Scheme in Your Email

FindLaw Tip 1: Don't be a shady politician who trades funding for favors.

FindLaw Tip 2: If you insist on being a shady politician, don't document your illegal activity in a government email account.

"Wait!" you say. "Certainly the marital communications privilege will cover me if I only email my spouse to explain the scheme?"

Except that it won't.

Phillip Hamilton -- kind of a silver-fox Kenny Rogers type -- served in the Virginia House of Delegates from 1988 until 2009. He also worked for the Newport News public schools system. Facing a reduction in his city retirement pay, Hamilton concocted a plan for supplemental income: Secure government funding for a new Center for Teacher Quality and Educational Leadership at Old Dominion University in exchange for a position at the school.

Immediately prior to meeting with University officials about the Center in 2006, Hamilton and his wife exchanged emails discussing their financial difficulties, and their hope that the new Center would employ Hamilton. In the exchange, Hamilton told his wife that he would "shoot for" a salary of $6,000 per month.

Those emails, like all emails at issue in this case, were sent to or from Hamilton's Newport News school system computer, through his work email account.

Hamilton got $1 million in funding for the Center, and the University named him as the Center Director -- a gig which paid $40,000 annually. Of course, the plan backfired, and Hamilton landed in jail for bribery and "extortion under color of official right."

On appeal, Hamilton challenged the admission of the emails with his wife, maintaining that admission of the messages violated the marital communications privilege. The Fourth Circuit disagreed.

In Wolfe v. U.S., the Supreme Court noted that "Communications between ... spouses, privately made, are generally assumed to have been intended to be confidential." But, to be covered by the privilege, spousal communication must be confidential; "voluntary disclosure" of a communication waives the privilege.

The government insisted that Hamilton waived the marital communications privilege by communicating with his wife on his workplace computer, through his work email account, and subsequently failing to safeguard the emails. The Fourth Circuit agreed.

Though the Newport News school system didn't have a computer usage policy when he sent the bribe documenting emails in 2006, it later adopted and disclosed a policy stating that users have "no expectation of privacy in their use of the Computer System" and "all information created, sent, received, accessed, or stored in the ... Computer System is subject to inspection and monitoring at any time." Forms accepting this policy were electronically signed in Hamilton's name.

Since Hamilton didn't take any steps to protect the emails in question -- even after learning about the stored email inspection policy -- the district court found that he waived the privilege. The Fourth Circuit affirmed because Hamilton didn't have an objectively reasonable belief that the files would be private after accepting the new policy terms.

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