Ricky Wahchumwah v. United States
710 F.3d 862
| 9th Cir. | 2012Background
- Undercover Fish and Wildlife Service agents investigated Wahchumwah for selling eagle parts; a confidential informant/agent Romero interacted with Wahchumwah, including a home visit with a concealed audio-video device and purchase of eagle plumes; prior purchases of eagle tails occurred at a powwow and via text message exchange; Wahchumwah was arrested after a search warrant on his home; Counts 1–5 charged conspiracy and various violations of the Bald and Golden Eagle Protection Act and the Lacey Act; Wahchumwah was convicted on all counts but the district court and appellate court addressed multiplicity and evidentiary issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fourth Amendment validity of recording inside home | Wahchumwah | Government recording invaded privacy | Recording not a Fourth Amendment violation; no suppression |
| Multiplicity of Counts 2 and 3 | Counts 2 and 3 are separate offenses | Counts reflect distinct statutes | Counts 2 and 3 are multiplicitous; vacate one count |
| Multiplicity of Counts 4 and 5 | Counts 4 and 5 separate offenses | Not multiplicitous due to different plumes | Counts 4 and 5 are multiplicitous; vacate one count |
| Admission of photographs under Rule 403 | Photographs probative regarding eagle parts | Risk of prejudice | No abuse of discretion; district court properly weighed probative value vs. prejudice and instructed jury accordingly |
| Confrontation Clause and anonymous complaints used at trial | Unidentified tribal complaints allowed for context | Crawford limits testimonial statements | Not error; statements were for why investigators acted, not for truth; proper limiting instruction |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (1967) (privacy in information exposed to public or government)
- Hoffa v. United States, 385 U.S. 293 (1966) (no privacy interest in information voluntarily exposed to government)
- United States v. White, 401 U.S. 745 (1971) (audio recordings with consent do not require a warrant)
- Brathwaite, 458 F.3d 376 (5th Cir. 2006) (informant’s hidden audio-video device in home not a search)
- United States v. Davis, 326 F.3d 361 (2d Cir. 2003) (recording device in hotel room situational analysis)
- United States v. Jones, 132 S. Ct. 945 (2012) (distinguishes GPS surveillance from interviewing/recording in home)
- Nerber, 222 F.3d 597 (9th Cir. 2000) (warrantless video camera installation in home difficult issue)
- Blockburger v. United States, 284 U.S. 299 (1932) (two offenses must require proof of different facts)
- Davenport, 519 F.3d 940 (9th Cir. 2008) (no congressional intent to punish multiple counts when facts overlap)
- Albernaz v. United States, 450 U.S. 333 (1981) (elements analysis for Blockburger test)
- Kimbrew, 406 F.3d 1149 (9th Cir. 2005) (Blockburger application focuses on statutory elements)