United States of America v. Charles Glenn

2025 DNH 034

• Court: District Court, D. New Hampshire
• Decided: March 12, 2025
• Docket: 23-cr-00112-PB-AJ-1
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 23-cr-00112-PB-AJ-1 Opinion No. 2025 DNH 034 Charles Glenn

MEMORANDUM AND ORDER

Charles Glenn was charged by superseding indictment with one count

of transmitting a threatening interstate communication in violation of 18

U.S.C. § 875(c) and one count of mailing a threatening communication in

violation of 18 U.S.C. § 876(c). Doc. 17. During the pendency of his ongoing

federal criminal case, Glenn has remained in the custody of the New

Hampshire State Department of Corrections (NHDOC). He is currently

incarcerated at the New Hampshire State Prison, serving a sentence of thirty

years to life on a state-law conviction. Doc. 21-1 at 1. In response to ongoing

limitations placed on his ability to review evidence while in state custody,

Glenn filed a motion seeking access to a computer to review recorded phone

calls outside of the presence of counsel. See Doc. 44. I deny the motion in light

of the considerations outlined below. I. BACKGROUND

Glenn faces two felony counts of making interstate threats against his

former attorney. Count I charges Glenn with using a NHDOC phone to call

his then-attorney in Massachusetts and threaten the life of one her children.

Doc. 17. The NHDOC system recorded the phone call underlying Count I and

many others between Glenn and the alleged victim.

Glenn’s prior counsel in the present case, Attorney Benjamin Falkner,

obtained several hours of recorded phone calls between Glenn and the alleged

victim from Glenn’s former attorney in separate legal proceedings. The calls

at issue are not part of the record in the present matter. Glenn has been able

to listen to the recorded phone calls in the presence of his current counsel.

NHDOC, though, did not permit Glenn to have his case-related notes when

reviewing the calls. Nor has the prison permitted Glenn access to a computer

so that he can review the calls without his attorney present.

II. LEGAL STANDARD

An inmate has a constitutional right of access to the courts inherent in

due process. See Boivin v. Black, 225 F.3d 36, 42 (1st Cir. 2000). To ensure

that an inmate has that access, correctional facilities cannot “actively

interfer[e] with inmates’ attempts to prepare documents[] or file them” as

part and parcel to his litigation. Lewis v. Casey, 518 U.S. 343, 350 (1996)

(internal citations omitted). As a starting point, however, an inmate

2 challenging a prison’s policy or practice that places conditional restrictions on

his access to legal material must show “actual injury” to be entitled to relief.

Sowell v. Vose, 941 F.2d 32, 35 (1st Cir. 1991). To make this showing, the

inmate must establish “actual prejudice with respect to the contemplated or

existing litigation, such as the inability to meet a filing deadline or present a

claim.” Lewis, 518 U.S. at 348.

Even when an inmate can show that his constitutional right to access is

implicated by a prison practice or regulation, the restriction at issue “is [still]

valid if it is reasonably related to legitimate penological interests.” Turner v.

Safley, 482 U.S. 78, 89 (1987). This deferential standard is necessary to

ensure that prisons and their officials can make day-to-day judgments and

“adopt innovative solutions to the intractable problems of prison

administration” Id.

III. ANALYSIS

Glenn has asked that I order the New Hampshire State Prison to

provide him access without counsel being present to a computer and to the

recorded phone calls that were obtained by his former counsel. To do so, I

would have to make two findings. First, I must conclude that Glenn would

suffer actual injury from lack of access to the recordings. If I find that he

would, I must further conclude that the prison’s denial of his request for

unfettered access to all the calls has no reasonable relation to a penological

3 interest. Because I can do neither, I deny the motion for access to the phone

calls.

I address first the question of the prison’s penological interest and its

reasonable relationship to the policy at issue. The recorded phone calls at

issue here present a challenge to NHDOC’s ability to administer and ensure

the security of its facility. The government has indicated in its filings that

NHDOC opposes allowing Glenn access to a computer and the recordings

outside the presence of counsel because doing so would compromise the

security of the facility. See Doc. 46 at 2 (describing NHDOC’s view that

Glenn’s requests are “untenable and contrary to prison regulations and

policy”).

Notably, the calls at issue in this motion are not part of the discovery

record in this case. Glenn obtained the calls through separate proceedings

and continues to assert attorney-client privilege over the contents of all the

calls. Glenn seeks access to the calls without allowing NHDOC to review

their contents or otherwise ensure that they do not pose a risk to the facility,

its staff, or other prisoners.

More fundamentally, Glenn has not shown that he needs access to the

recorded calls to prepare his defense. At best, Glenn has suggested two

possible reasons why he needs the access requested.

4 First, Glenn suggests that the content of these phone calls undermines

the government’s claim that Glenn made true threats in violation of federal

law. Glenn has hinted that these calls contain evidence supporting his

contention that the alleged victim either invited the would-be threat or

otherwise understood the threat was not a true threat. But he has failed to

identify any call that could support his argument. Glenn himself was party to

all the calls and is familiar with what was said. In addition, Glenn and his

counsel have listened to the calls. His counsel spent several hours listening to

and reviewing the calls with Glenn. Together they should have, at the very

least, been able to identify specific calls to which Glenn might need further

access. Nothing in the record suggests that unsupervised access to hours of

recordings is constitutionally, or otherwise, required.

Second, Glenn has represented to the Court that the calls contain

evidence that will support his motion to suppress, Doc. 21. According to

Glenn, the myriad recorded phone calls support a potential claim that he was

operating under a mistaken belief that all communications between him and

his attorney were privileged and not recorded by the NHDOC. Glenn does not

explain, though, why his subjective belief about whether calls were recorded

is relevant in light of the fact that the call giving rise to Count I featured an

explicit notification that the communication would be recorded. See Doc. 28-1

at 2 (including the transcript of the alleged threat call with the prerecorded

5 notice that the “call is from a corrections facility and is subject to monitoring

and recording” and clarifying that a prisoner making an outgoing call can

also hear the notice at the beginning). Glenn has made no legal argument

that his subjective understanding determines the scope of the attorney-client

privilege in this situation. And even if he had suggested as much, nothing in

the record explains why Glenn would need unfettered access to the all the

calls in order to advance his suppression argument. As noted above, Glenn

was party to all the calls and has had a chance to review them all with his

current counsel. There is no reason why he could not identify specific calls or

otherwise narrow his request.

IV. CONCLUSION

For the reasons explained above, I deny the motion for access to the

recorded phone calls and computer outside of the presence of counsel. See

Doc. 44.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

March 12, 2025

cc: Counsel of Record U.S. Probation U.S. Marshal