UNITED STATES OF AMERICA, Aрpellee, v. AMADO LOPEZ, Defendant, Appellant.
No. 01-1390
United States Court of Appeals For the First Circuit
August 20, 2002
Before Torruella, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Gene Carter, U.S. District Judge]
Margaret D. McGaughey, Assistant United States Attorney, Appellate Chief, with whom Paula D. Silsby, United States Attorney, were on brief, for appellee.
I. BACKGROUND
A. The conspiracy
In early April 1999, an agent of the Drug Enforcement Administration (“DEA“) received information from a confidential source indicating that a cocaine distribution conspiracy was operating in the area of Brunswick, Maine. With the help of the confidential source, undercover DEA agents were able to contact members of the conspiracy directly and arrange several controlled purchases of cocaine. The DEA was also able to gain information concerning the conspiracy through other investigative techniques, including visual surveillance and pen-register analysis. In addition, DEA agents obtained the assistance of at least one other
On November 17, 1999, the government applied for authorization to conduct wiretaps of two mobile telephones allegedly used by members of the drug distribution ring. Along with the application, DEA Agent Brian Boyle (“Boyle“) submitted an affidavit describing the investigation of the drug conspiracy to date. Boyle detailed the progress of the investigation and various investigative techniques that either had been tried previously or were deemed unlikely to succeed. Based on the government‘s application, Chief U.S. District Judge D. Brock Hornby granted the wiretap application. The order issued by Chief Judge Hornby provided:
Wherefore, it is hereby Ordered that special agents of the United States Drug Enforcement Administration and other investigative and law enforcement officers, assisted, if necessary, by qualified translators, pursuant to the application of the Assistant United States Attorney Jonathan A. Toof, are authorized to intercept and record wire communications to and from the cellular telephone . . . assigned and billed to Orlando Santana, Jr. . . . .
The wiretap plant was operated for approximately twenty dаys. As a result of certain subscriber changes, the order was amended once during the course of the plant‘s operation. And on November 29 and December 7, 1999, the government filed progress reports with the court setting forth the number of calls intercepted, samples of the types of conversations recorded, and names of conspirators who had and had not been identified. See
Ultimately, the wiretap intercepted approximately 1700 telephone calls. Throughout the duration of the wiretap, the government relied on the services of civilian monitors working under contract with the govеrnment. The civilian monitors provided some translation services; however, the majority of the civilians’ services consisted of monitoring all intercepted calls and performing “minimization” -- that is, the implementation of procedures established by the government to ensure that the fewest number of non-pertinent (or “innocent“) calls are intercepted. See
Based on the information obtained through the wiretap, the government was able to build a formidable case against the conspiracy members. According to the appellant, a number of the intercepted telephone calls were particularly incriminating to him.
B. Proceedings below
Lopez was indicted and charged together with seventeen other co-conspirators. Count I of the indictment charged Lopez and the other defendants with a conspiracy to possess with intent to distribute cocaine and cocaine base in violation of
Following the denial of the motion, Lopez entered a conditional plea of guilty, preserving for appeal the admissibility of the wiretap evidence. Judge Carter then sentenced Lopez to 240 months in prison. This timely appeal followed.
By enacting Title III, Congress sought to protect the privacy of wire and oral communications while, at the same time, authorizing the use of electronic surveillance evidence obtained by law enforcement under specified conditions. See Bartnicki v. Vopper, 532 U.S. 514, 523 (2001). In accordanсe with Congress‘s concern for preserving privacy, Title III makes the interception of electronic communications by law enforcement an extraordinary investigative technique whose use “is to be distinctly the exception -- not the rule.” United States v. Hoffman, 832 F.2d 1299, 1306 (1st Cir. 1987). The statute thus imposes a number of strict requirements on the issuance and use of wiretap warrants. See United States v. Giordano, 416 U.S. 505, 515 (1974).
At the outset, a duly-authorized law enforcement officer must obtain approval from the Attorney General of the United States or a specially designated assistant attorney general in order to apply to a federal judge for a wiretap. See
In the application for the wiretap, the government must make a detailed proffer including: (a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application; (b) a full and
Finally, in the event the application is granted, Title III provides numerous grounds upon which communications obtained pursuant to a Title III warrant may be suppressed in any proceeding. Specifically, the statute states:
Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United Stаtes, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that -- (i) the communication was unlawfully intercepted; (ii) the order or authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in
conformity with the order of authorization or approval . . . .
Lopez makes sundry arguments as to why the incriminating communications intercepted by the government must be suppressed. He argues first that the government‘s application was inadequate on its face to satisfy the so-called “necessity requirement” of Title III. See
A. The “necessity requirement”
Title III requires that a wiretap application include “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if triеd or to be too dangerous.” Hoffman, 832 F.2d at 1306 (quoting
In reviewing the sufficiency of the government‘s showing of necessity, the appeals court role is not to make a de novo determination of sufficiency as if it were [the issuing judge], but to decide if the facts set forth in the application were minimally adequate to support the determination that was made.‘” United States v. Ashley, 876 F.2d 1069, 1074 (1st Cir. 1989) (quoting United States v. Scibelli, 549 F.2d 222, 226 (1st Cir. 1977)). That is, “[t]he sufficiency of the affidavit is to be upheld where the appellate court determines that the issuing court could have reasonably concluded that normal investigatory procedures reasonably appeared to be unlikely to succeed.” Id.
To be sure, the government‘s affidavit must show with specificity why ordinary means of investigation will fail; conсlusory statements without factual support are not sufficient. See
The affidavit of DEA Agent Boyle described several alternative investigative techniques that had been tried and failed, appeared unlikely to succeed, might alert the conspirators, or were too dangerous to pursue.2 Although several of the
techniques (such as physical surveillance, interrogation of informants, pen-register analysis, and controlled buys by undercover agents) had proven valuable in the past, the utility of those tools was exhausted or greatly diminished by the time the government sought its warrant.
As the details of Agent Boyle‘s affidavit demonstrate, the traditional techniques employed by the DEA over the course of several months had failed to establish the identity of some conspirators, particularly those at the top of the distribution chain. See United States v. Diaz, 176 F.3d 52, 110-11 (2d Cir. 1999) (holding that necessity for wiretap was shown because traditional techniques were not adequate to reveal sources of drug supply and location of drug proceeds); United States v. Cooper, 868 F.2d 1505, 1509-10 (6th Cir. 1989) (holding that necessity for wiretap was shown because wiretap followed lengthy investigation in which normal investigative procedures were used extensively but had not identified customers and agents of prescription drug ring). Moreover, the affidavit documents specific incidents suggesting that the further use of surveillance and undercover operations risked revealing the investigation and placing law enforcement officers in harm‘s way. For example, one conspirator expressed
Other investigative techniques that were not tried by the government were also inadequate because they might have revealed the ongoing investigation. The execution of a search warrant or issuance of grand jury subpoenas would have likely alerted other conspiracy members to law enforcement‘s investigation. Also, although Lopez suggests that a handful of cooperating sources (including two active conspiracy members who had been arrested during the course of the investigation) could have provided useful grand jury testimony, we think the issuing judge would have been justified in doubting the efficacy of such action. As Agent Boyle states in his affidavit, two of the cooperating sources had limited information concerning the full scope of the conspiracy, and
Viewed as a whole, the information contained in the government‘s application for the Title III warrant was not, as Lopez suggests, mere boilerplate. Nor were the circumstances surrounding the government‘s investigation of the drug conspiracy so commonplace or generic that our approval of the issuance of the warrant in this case would assure that a warrant could be issued in virtually any drug investigation. The government provided the issuing judge with specific factors -- particularly the DEA‘s inability to identify key conspiracy members and the conspiracy‘s growing awareness of law enforcement activity -- that militated in favor of using a more drastic investigative tool. We therefore affirm the district court‘s ruling that the government‘s warrant application satisfied Title III‘s necessity requirement.
B. Civilian monitors
Lopez argues next that the communications must be suppressed because the government violated Title III by failing to disclose to the issuing judge that civilian monitors would be utilized during the interception process. Although we agree with Lopez that the government must disclose its intention to use civilian monitors, we do not find the failure to do so in this case to be sufficient grounds to suppress the communications.
There is no doubt that the use of civilian monitors for the execution of a wiretap cannot constitute a per se violation of Title III, since the statute explicitly contemplates the assistance
The government‘s failure to disclose its plans to use civilian monitors frustrates the objectives of other provisions of Title III as well. For example, the statute mandates that the issuing judge include in any order a provision requiring that the wiretap be conducted in such a way as to minimize nonpertinent communications. See
In light of these considerations, we hold that the government must disclose, as a part of its application for a wiretap warrant, any intention to utilize the services of civilian monitors in the execution of the warrant. Tо hold otherwise would, in our view, run counter to the general duty of candor the statute imposes on the government and impair the issuing judge‘s ability to preserve important privacy interests protected by Title III.
Having established that Title III requires the government to provide the issuing judge with information on any plans to employ civilian monitors, we turn to the question of whether the government‘s conduct in this particular case requires the suppression of the communications that incriminate Lopez. Title III sets out a broadly-worded statutory exclusion rule that, on its face, prohibits the use at trial of any evidence “derived from” a wiretap “if the disclosure of that information would be in violation of this chapter.”
Despite the broad language of
The restrictions in Title III aim to limit the use of wiretapping to those situations where it is truly justified, and to protect privacy as mush as reasonably possible when wiretapping is used. See Escobar-De Jesus, 187 F.3d at 171. The undisclosed use of civilian monitors did not affect the likelihood that the wiretap would be authorized in the first place, nor did it increase the
In addition, the district court‘s unchallenged findings demonstrate that, aside from the failure to disclose the use of civilian monitors, the wiretap was conducted in an admirably professional manner. Privacy concerns were protected to the greatest extent possible. Suppression is less likely to be necessary when the violation of Title III represents an isolated flaw in “a process that in all other important respects complied with the statute.” Cunningham, 113 F.3d at 294.
Finally, there is no indication that the government‘s violations of Title III were willful or knowing. We are the first court of appeals to hold that Title III requires the government to disclose any plans to employ civilian monitors; indeed, we appear to be the first court that has been squarely presented with the issue. Thus, the law enforcement in this case presumably did not realize that their undisclоsed use of civilian monitors could constitute a violation of the statute. The district court determined that, although the used of civilian monitors departed from the precise terms of the order authorizing the wiretap, “the violation was inadvertent, as opposed to a conscious decision by the Government or law enforcement officers to take action they knew to be contrary to an intercept order.” Lopez, 106 F. Supp. 2d at 100.
In sum, Title III imposes an obligation on the government to disclose to the issuing judge any plans to use civilian monitors
C. Miscellaneous issues
Lopez offers two remaining arguments as to why the intercepted communications should be suppressed. We think both arguments lack merit and address them only briefly.
First, Lopez contends that the government violated the requirement that civilian monitors conducting an interception must be “supervis[ed]” by an “investigative or law enforcement officer authorized to conduct the interception.”
According to the opinion below, the civilian monitors, who worked sixteen-hour shifts every day for twenty days, were supervised at all times by a shift supervisor. The one apparent exception was a single instance where the supervising agent left the plant for ten to fifteen minutes to conduct routine surveillance. Lopez does not appear to challenge Judge Carter‘s findings as clearly erroneous. See United States v. Hawkins, 279 F.3d 83, 85 (1st Cir. 2002) (“[W]e review the factual findings of the district court for clear error.“). Instead he argues that, as
Second, Lopez argues that the civilian monitors were ineffective at minimizing non-pertinent calls, as is required by
Although “blind reliance on the percentage of nonpertinent calls intercepted is not a sure guide” to determining whether the minimization was proper, Scott v. United States, 436 U.S. 128, 140 (1978), the nearly flawless performance of the government in this case carries significant weight. Cf. United States v. Bennett, 219 F.3d 1117, 1124 (9th Cir.) (minimization requirement met where improperly intercepted calls accounted for only 3.65% of 7322 total intercepted calls), cert. denied, 531 U.S. 1056 (2000). Plus, the findings of the district court support the conclusion that the government established and observed thorough precautions to bring about minimization and that there was a significant degree of judicial supervision over the surveillance process. See London, 66 F.3d at 1236. Finally, as the district court found, Lopez was not prejudiced in any way by the improper minimization of the two calls. The district court‘s decision not
III. SENTENCING
Forging ahead pro se, Lopez challenges the 240-month sentence imposed by the district court as violative of the Supreme Court‘s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).4 Because we conclude that Lopez voluntarily relinquished his Apprendi arguments below, we affirm the sentence imposed by the district court.
The indictment under which Lopez was charged alleged that he was subject to the penalty provisions of
The flawed indictment became a well-worn topic in the district court during the sentencing proceedings. On October 3, 2000, after hearings and rulings on suppression motions, Lopez appeared, with counsel, to enter a plea of guilty. When asked whether he was pleading guilty because he was guilty and for no
After this discussion, the court again asked Lopez if he was pleading guilty because he was guilty. Lopez replied that he was. The court then asked, “Is the only other reason you have to tender this plea, your desire to limit exposure to the length of the period of incarceration?” Lopez replied, “yes.” After explaining to Lopez the rights that he surrendered by pleading guilty, Judge Carter ascertained that Lopez understood and waived these rights. Lopez was then sentenced to 240 months in prison.
For the first time on appeal, Lopez now argues that his sentence violated Apprendi because the government was derelict in its duty to charge a drug quantity in the indictment. Finding that
A party‘s mere forfeiture, or failure to timely assert a right, does not preclude appellate review for “plain error” under
In this case, there is no doubt that Lopez was well aware that Apprendi carried implications for his case. As Lopez stated during the plea colloquy, his attorney had advised him to plead guilty under the present indictment precisely because of the effect of Apprendi. Judge Carter also apprised Lopez of the potential Apprendi issue. Indeed, Judge Carter guaranteed that the sentence
Furthermore, Lopez gained a valuable benefit by acquiescing to the charges in the original indictment. As noted above, the government was prepared to seek a superseding indictment with a specific drug quantity. Had the government done so, Lopez would have doubtlessly faced a harsher sentence. For this reason, Lopez‘s counsel recognized that, “from a strategic standpoint,” Lopez was better off pleading guilty to the original indictment. Lopez also admitted that his plea was based in part on his desire to limit his exposure for purposes of sentencing. Lopez cannоt now appeal what he earlier used as a pawn to better his situation.
Because Lopez knowingly and voluntarily relinquished any appeal stemming from the Supreme Court‘s decision in Apprendi (and
IV. CONCLUSION
The district court handled this case in praiseworthy fashion. We find nothing in Lopez‘s appeal that would compel any alteration of the rulings below.
Affirmed.