While detained pretrial at the Leavenworth Federal Detention Center, Steven Hohn’s phone conversations with his attorney—covering legal advice and trial strategy—were monitored by federal prosecutors.

After discovering this, Hohn sought to overturn his conviction or reduce his sentence. The district court denied his request, ruling that he lacked a reasonable expectation of privacy upon being informed of the recording—authorized under the guise of institutional security. The Tenth Circuit, sitting en banc, held that a defendant must demonstrate prejudice to prove a Sixth Amendment violation from government intrusion into attorney-client communications—a nearly impossible hurdle.

Now seeking Supreme Court review, the Cato Institute filed an amicus brief in support of Hohn’s cert petition. Our brief emphasizes that despite the Court’s stated limitations on pretrial detention, approximately 75 percent of federal defendants are detained pretrial. We argue that few rights are more fundamental than the right of a defendant to participate in their own defense. Furthermore, the ability for detainees—who may be housed far from home—to meaningfully participate in their own defense hinges on their ability to communicate confidentially with their counsel.

Our brief also highlights the significant power and limited accountability of federal prosecutors—making internal oversight vital—especially since victims of prosecutorial misconduct cannot pursue civil suits. Our brief contends that Hohn’s experience was not isolated, but standard practice in the District of Kansas.

We conclude that the Tenth Circuit’s prejudice requirement for Sixth Amendment violations in attorney-client intrusion cases creates perverse incentives for prosecutors. Concealing evidence of intentional intrusion could effectively prevent any showing of prejudice, allowing prosecutorial misconduct to thrive.

The Tenth Circuit’s ruling invites prosecutorial misconduct and erodes the right of the accused to meaningfully participate in their own defense. This Court should grant Mr. Hohn’s petition and reverse the decision below.