The opinion of the court was delivered by: Pooler, Circuit Judge:
Before: MINER, McLAUGHLIN, and POOLER, Circuit Judges.
Defendant-Appellant Joel Rodriguez ("Rodriguez") appeals from a judgment of conviction entered on June 30, 2010, by Judge Denise Cote of the United States District Court for the Southern District of New York, at the conclusion of a six-day jury trial. Rodriguez was tried with co-defendant Carlos Mejia and found guilty of two counts of conspiracy with intent to distribute cocaine and one count of attempt to possess with intent to distribute cocaine, pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 846. On appeal, Rodriguez principally argues that the district court improperly admitted a portion of a recorded telephone call that he made while incarcerated, because he argues that the communication was protected by the attorney-client privilege. The admitted portion of the phone call included a recording of Rodriguez instructing his sister to tell his brother to tell his lawyer that he wanted to "cop out" to a plea before he was indicted. We hold that the district court did not err in finding that the communication was not made in confidence and that the attorney-client privilege did not apply.
Defendant-Appellant Joel Rodriguez ("Rodriguez") appeals from a judgment of conviction entered on June 30, 2010, by Judge Denise Cote of the United States District Court for the Southern District of New York, at the conclusion of a six-day jury trial. Rodriguez was tried with co-defendant Carlos Mejia and found guilty of two counts of conspiracy with intent to distribute cocaine and one count of attempt to possess with intent to distribute cocaine, pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 846. Rodriguez was sentenced to 96 months of imprisonment on each count, to be served concurrently, followed by five years of supervised release, and $200 in special assessments.*fn2
On appeal, Rodriguez raises two objections to the district court's admission of part of a recorded phone call in which he asked his sister Francia to tell his brother to tell his attorney that he wanted to "cop out" to a plea before he was indicted. First, he argues that the district court erred in determining that the attorney-client privilege did not apply or, in the alternative, that Rodriguez had waived it. Second, he argues that the district court failed to consider whether the recorded conversation was admissible under Federal Rule of Evidence 410. Both arguments are unavailing.
Rodriguez was arrested on January 22, 2009, on the basis of a complaint charging him with conspiracy to distribute, or possess with intent to distribute, a controlled substance. On January 26, 2010, approximately one month before trial, the government filed a motion in limine for, among other things, permission to introduce at trial the recording of a telephone call that Rodriguez had made to his sister Francia on March 1, 2009, while Rodriguez was imprisoned at the Metropolitan Detention Center ("MDC").*fn3 During the call, which was conducted in Spanish, Rodriguez asked Francia to tell "Tito," their brother, to inform Rodriguez's lawyer that Rodriguez wanted to discuss whether he could "cop out" before the indictment.*fn4 Francia told Rodriguez that he should tell Tito tomorrow because she "forget[s] things like that." Rodriguez explained that "the sooner we talk to him [the lawyer], the better." He told Francia that a fellow inmate had explained that it was better to plead guilty before being indicted. Rodriguez further explained the effect of pleading guilty before being indicted, which was to decrease his sentence: "let's suppose, if I plead guilty to that complaint . . . that's five-to-40 [years] . . . so, it turns out to be just five years, a little over three years." Rodriguez then instructed his sister "to call the lawyer and tell him to, to call the prosecutor . . . [and] say that I wanna plead guilty to the complaint, that I accept the five-to-40."
In its motion, the government argued that this conversation was admissible because "a defendant's expression of a willingness to plead guilty is evidence of his consciousness of guilt," citing to case law outside of our Circuit. While the government acknowledged that "Rodriguez does not directly admit [to the charged conduct], his statements regarding his willingness to enter a plea, pre-indictment, indicate that he believes that he is guilty of narcotics-trafficking activity."*fn5 At a pre-trial conference held on January 28, 2010, Rodriguez argued that the recorded call was not admissible because the conversation concerned plea negotiations, and none of the cases cited by the government "involve[d] any real plea activity involving people that ha[d] the power to involve themselves in plea activity." Rodriguez did not contest the government's argument that his willingness to enter a plea was probative of guilt. Instead, Rodriguez argued "these are plea negotiations implicated by Federal Rules of Evidence 408 and 410." The court then indicated that it had a separate question regarding the communications--"whether or not that communication should be protected as attorney-client privilege communication, the sister acting as an agent, since the defendant isn't able to just walk into the attorney's office."
On January 29, 2010, Rodriguez filed a letter arguing that his phone call to his sister was protected by the attorney-client privilege. Rodriguez acknowledged that the privilege typically attaches only to a lawyer and his or her client. However, Rodriguez noted that the privilege may extend to include third parties if the communication "is made in confidence for the purpose of obtaining legal advice from the lawyer." He explained that the privilege has been applied where communications were made "through a hired interpreter, or one serving as an agent of either attorney or client to facilitate communication."
Here, Rodriguez argued, he was speaking to his sister, a close relative in whom he had a reasonable expectation of confidentiality, with a "message [that] was intended strictly for his lawyer." Moreover, Rodriguez noted that he "was imprisoned, and unable to contact [his lawyer] directly." Rodriguez emphasized that "[h]is only conceivable goal was to promptly facilitate plea discussions between his attorney and the Government." Given that, according to Rodriguez, disclosure to his sister was necessary to obtain informed legal advice, he argued that the attorney-client privilege applied and that the call should not be admitted into evidence. The government responded the following day, arguing that the privilege did not apply because Rodriguez made statements to a third party--his sister--with knowledge that another third party--the Bureau of Prisons ("BOP")--was recording the call. For the privilege to apply to Rodriguez's communication with his sister, the government argued that two elements must be satisfied: that Rodriguez had a reasonable expectation of confidentiality under the circumstances, and that disclosure to his sister was necessary in order to obtain legal advice. The government stated that in this case neither element was met. First, it argued that Rodriguez had no reasonable expectation that his phone call would be confidential because "inmates at BOP facilities are repeatedly informed that their calls are not private and may be recorded." Second, the government argued that Rodriguez's sister "was not a necessary intermediary" because "Rodriguez could have called his attorney just as easily as he called [his sister] had he wished to engage in privileged discussions with his attorney." Furthermore, insofar as Federal Rule of Evidence 410 was implicated, the government argued it did not apply because the Rule, by its terms, concerns only statements "made in the course of plea discussions with an attorney for the prosecuting authority," Fed. R. Evid. 410(4), and Rodriguez's sister was not related to the "prosecuting authority" in any way.
On the first day of trial, the district court granted the government's motion in limine and ruled that Rodriguez's call was admissible. The court stated that it initially had requested the parties to brief whether the "communication should be protected as attorney-client privilege communication, the sister acting as an agent, since the defendant isn't able to just walk into the attorney's office." At the hearing, however, the court explained that "the submissions that the government has given , considered with the submissions from the defendants and their argument,  suggest that the issue that [was] raised at the final pretrial conference does not govern here." Instead, the court based its conclusion that the privilege did not apply on two principal findings: that Rodriguez was on notice that the call was being recorded and that he was represented by counsel at the time of the call. With regard to the first finding, the court stated that if such notice was disputed, it would accept further submissions on the issue. No submissions were provided, however, and Rodriguez concedes on appeal that he does not contest the assumption that he was on notice. With regard to the second finding, the court explained that the attorney-client privilege extends to third parties only where "that communication is [necessary] to assist the attorney in rendering advice to the client." The court found that this was not such a case, given that Rodriguez had counsel at the time of the call and "[t]here is no suggestion he couldn't call [his] counsel or was unable to communicate with him." The court concluded that Rodriguez's "telephone call was not covered by the attorney- client privilege because there could be no reasonable expectation of confidentiality." The court underscored that "what is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer, and we have no showing to support such a finding."