United States v. Getto
729 F.3d 221
2d Cir.2013Background
- Matthew Getto, a U.S. citizen, participated in an Israel‑based lottery telemarketing fraud run from three “boiler rooms” in Israel; victims were mainly in the United States.
- The FBI began a parallel investigation, provided information (phone numbers, bank accounts) to the Israeli National Police (INP) via an MLAT request, and the INP conducted independent surveillance and searched the Ha’Negev boiler room in Israel.
- Evidence gathered by the INP in Israel was shared with U.S. authorities; Getto was arrested in the U.S., pled not to suppress the foreign‑obtained evidence, and was convicted after a bench trial on stipulated facts of conspiracy to commit mail and wire fraud.
- Getto moved to suppress the INP‑obtained evidence, arguing (1) the INP acted as a virtual agent of the U.S. (triggering Fourth Amendment protections) and (2) the INP’s conduct (alleged warrantless searches and deception) “shocked the conscience.” The District Court denied suppression without an evidentiary hearing.
- On sentencing, the District Court attributed loss and victim counts from all three boiler rooms to Getto; Getto challenged procedural error for lack of particularized findings re: scope of agreement and foreseeability of co‑conspirator conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of foreign‑obtained evidence | Gov’t: foreign searches by foreign officials generally not subject to exclusion; admissible absent extreme conduct or constitutional implications | Getto: INP acted as U.S. virtual agent or cooperated to evade U.S. constitutional protections; INP conduct shocked conscience | Evidence admissible: rejection of suppression; cooperation alone (information sharing/MLAT) insufficient to trigger Fourth Amendment; alleged conduct not conscience‑shocking |
| Standard for “shocks the conscience” supervisory exclusion | Gov’t: exclusion reserved for egregious misconduct (torture, physical abuse) | Getto: alleged warrantless entry, surveillance, and concealment by INP were egregious | Denied: alleged procedural or foreign law violations do not meet high threshold for shocking the conscience |
| When Fourth Amendment attaches abroad (agent/evade tests) | Getto: live feeds, MLAT request, U.S. contacts made INP an agent or showed intent to evade Constitution | Gov’t: U.S. provided info and requested assistance but did not control, direct, or participate in INP operations | Denied: Fourth Amendment applies only if foreign officials are controlled/directed by U.S. or there is intent to evade U.S. constitutional requirements; neither shown |
| Sentencing attribution of co‑conspirator conduct | Gov’t: loss and victims from all three rooms reasonably attributable to Getto as conspiracy conduct | Getto: court failed to make particularized findings that scope of agreement included other rooms and that those acts were foreseeable | District Court erred procedurally: must vacate and resentence with explicit particularized findings re: scope and foreseeability |
Key Cases Cited
- Janis v. United States, 428 U.S. 433 (1976) (exclusionary rule generally inapplicable to evidence obtained by foreign governments)
- Cotroni v. United States, 527 F.2d 708 (2d Cir. 1975) (information from foreign police need not be excluded for failing to meet U.S. constitutional standards)
- Maturo v. United States, 982 F.2d 57 (2d Cir. 1992) (Fourth Amendment exclusionary principles and limits for actions abroad; cooperation does not alone create U.S. agency)
- Rochin v. California, 342 U.S. 165 (1952) (due process supervisory exclusion for conduct that "shocks the conscience")
- United States v. Johnson, 378 F.3d 230 (2d Cir. 2004) (requirement of particularized findings for attributing co‑conspirator conduct at sentencing)