Criminal Justice Insider

In our January 2020 Criminal Justice Insider blog post, we covered the issues that arise from the Government’s use of taint teams, consisting of prosecutors who are unaffiliated with the case, to review and filter materials that may be privileged. A “taint team” is used when the Government executes a search warrant and seizes material that may be subject to the attorney-client privilege. However, these “taint team” prosecutors are still prosecutors who work in the same office and with the same mission as the prosecutors who executed the search warrant. This obvious conflict of interest and lack of transparency raises serious concerns with criminal defense counsel who continually challenge the use of “taint teams.”

As noted in the previous blog post, in 2019, the Fourth Circuit finally heard the concerns of defense counsel when it came to the use of “taint teams.” In United States of America v. Under Seal, Case No. 19-1730, the Fourth Circuit, in reviewing the use of a “taint team” to review records seized from a law firm, held that use of a “taint team” violates constitutional notions of separation of powers insofar as it assigns the determination of privilege, a function of the judicial system established by Article III of the Constitution, to law enforcement, an agency of the executive branch empowered by Article II of the Constitution. Moreover, the Court recognized the practical problems in leaving “the Government’s fox in charge of guarding the Law Firm’s henhouse.” The Fourth Circuit ultimately decided that a magistrate judge or independent special master was required to review the seized material for privilege.

The issue of “taint teams” has arisen again in the perpetually newsworthy case of Michael Avenatti. Avenatti is presently facing charges of wire fraud in the Southern District of New York due to his dealings with Stormy Daniels. Avenatti’s defense team moved that the files seized from Avenatti’s iCloud account be suppressed on the ground that it was reviewed by a Government “taint team” pursuant to a practice that had expressly condemned by the Fourth Circuit.

On September 9, 2021 District Court Judge Jesse M. Furman rejected Avenatti’s motion. In doing so, he explicitly ruled that he does not share the concerns of the Fourth Circuit with regard to the constitutional viability of “taint teams.” In fact, he veered in an entirely different direction by saying that review by a special master in the absence of a live case or controversy offends the constitutional role of Article III courts. He further noted that he is not bound by the rulings of the Fourth Circuit.

Judge Furman’s ruling will not make it to Second Circuit until after Avenatti’s case is tried in early 2022. If Avenatti has cause to appeal, does so, and Judge Furman is affirmed, there may be a circuit split between the Second and Fourth circuits ripe for resolution by the Supreme Court. Until then, the Government’s use of “taint teams” will be a controversial practice employed in some federal districts and not others.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533