United States v. Aurelio Cano-Flores
418 U.S. App. D.C. 83
| D.C. Cir. | 2015Background
- Aurelio Cano‑Flores, a mid‑level Gulf Cartel plaza commander, was indicted for conspiracy to manufacture and distribute cocaine and marijuana for importation into the U.S.; extradited and tried in D.C.
- DEA intercepted Spanish‑language cell‑phone calls routed to a DEA “wire room” in Houston under wiretap authorizations from the Southern District of Texas; many calls originated when phones roamed near the U.S.–Mexico border.
- Trial evidence included wiretap recordings and translated transcripts; defense challenged jurisdiction for interceptions, minimization practices, and sending transcripts into the jury room.
- District court denied suppression and admitted transcripts into the jury room (with instruction that recordings remain primary evidence); sentenced Cano‑Flores to 35 years (below Guidelines life term) and ordered a $15 billion criminal forfeiture under 21 U.S.C. § 853(a)(1).
- On appeal, the D.C. Circuit affirmed conviction and sentence but held the district court erred in calculating the $15 billion forfeiture by attributing the cartel’s total proceeds to Cano‑Flores under a joint‑and‑several/Pinkerton approach; vacated and remanded forfeiture for recalculation under § 853(a)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Wiretap jurisdiction (where interception occurred) | Government: interception lawfully occurred in Houston wire room within court's territorial jurisdiction (listening‑post theory) | Cano‑Flores: Title III does not authorize interceptions of communications occurring in Mexico; listening‑post theory overreaches | Court upheld listening‑post theory here and rejected challenge to Texas court's authorizations |
| Minimization of intercepted communications | Government: agents made reasonable minimization efforts given investigation scope | Cano‑Flores: provided list of long non‑pertinent calls and urged burden‑shifting to require government explanation | Court rejected burden‑shifting proposal and found defense failed to identify particular conversations showing unreasonable minimization; denial affirmed |
| Transcripts in jury room | Government: translated transcripts necessary for jurors to understand foreign‑language recordings; may be considered as evidence with recordings available | Cano‑Flores: stipulations presumed transcripts would not go to jury; inaccuracies risk turning transcripts into independent evidence | Court allowed transcripts to go to jury (foreign‑language recordings); no reversible error given safeguards and lack of material inaccuracies |
| Forfeiture calculation under 21 U.S.C. § 853(a)(1) | Government: Pinkerton/joint‑and‑several principles permit attributing reasonably foreseeable conspiracy proceeds to defendant; supports $15 billion forfeiture | Cano‑Flores: § 853(a)(1) limits forfeiture to property a defendant "obtained" (directly or indirectly); cannot be the cartel's entire gross proceeds | Court held § 853(a)(1) does not authorize forfeiture based on entire conspiracy revenues attributable to co‑conspirators; vacated $15 billion forfeiture and remanded for recalculation under proper reading of "obtained" |
Key Cases Cited
- United States v. Rodriguez, 968 F.2d 130 (2d Cir.) (articulating the "listening post" theory for wiretap jurisdiction)
- United States v. Glover, 736 F.3d 509 (D.C. Cir. 2013) (distinguishing wiretap/listening‑post issues from authorization to plant bugs outside district)
- Scott v. United States, 436 U.S. 128 (1978) (minimization reasonableness factors)
- United States v. Carter, 449 F.3d 1287 (D.C. Cir. 2006) (minimization burden and defendant’s obligation to identify particular conversations)
- United States v. Holton, 116 F.3d 1536 (D.C. Cir. 1997) (cautions about transcripts becoming independent evidence)
- Pinkerton v. United States, 328 U.S. 640 (1946) (co‑conspirator liability principles relied on by government)
- United States v. Bajakajian, 524 U.S. 321 (1998) (Eighth Amendment excessive fines analysis)
- United States v. Santos, 553 U.S. 507 (2008) (rule of lenity in interpreting criminal statutes)