United States v. Salimonu

(ii) tion; anxiety minimize and concern conclude, We applying Barker*s balanc- (iii) accused; test, to limit possi- ing that Muñoz’s constitutional right bility that the defense will be impaired.” to a speedy trial was not violated. Barker, 407 U.S. at 92 S.Ct. 2182

(footnote omitted). CONCLUSION The Barker Court went on to discuss the For the reasons stated in this opinion, disadvantages of lengthy pretrial incarcer we affirm. ation for the accused who cannot obtain his Barker,

release. See 532-33, at However, S.Ct. 2182. the nineteen of pretrial

months incarceration this

case, itself, by is insufficient to establish a constitutional prejudice. level of Sant Cf.

iago-Becerril, 130 (stating “fifteen pretrial months of incarceration STATES, UNITED Appellee, was insufficient to establish a constitution al of prejudice”). level Muñoz allege does not any anxiety or Oladipo SALIMONU, Defendant, resulting

concern pretrial delay Appellant. so we immediately turn to the third and No. 97-1557. final factor. United States Court Appeals,

“Among the three interests safeguarded Circuit. First right to speedy guaranteed trial as [Sjixth under the [Ajmendment, ‘the most Heard March 1999. serious is [protection against impairment Decided July of the defense] the inability because of a defendant adequately prepare his case ” skews the fairness of the system.’ entire

Barker, 407 U.S. at 92 S.Ct. 2182

(citations omitted).

Muñoz claims in a conclusory fashion

that he prejudice “suffered while incarcer-

ated. In the interim ... witnesses left the

country and were not available for trial.”

Appellant’s Br. at 19. Nowhere does he (1) alleged prejudice

delineate: he suf- (2)

fered; the alleged witnesses who left country and were not available

trial; or the substance of the testimony alleged these witnesses would have

provided. There is indication no here period pretrial delay interfered

any way with ability Muñoz’s to present

evidence or obtain of wit-

nesses, or that it impact on the Colombo,

fairness of his trial. See

F.2d at 25-26. Accordingly, para-

mount interest way no favors Muñoz’s

claim impairment. of constitutional

Kimberly Homan with whom Sheketoff & Homan Roberts, John L. ap- pointment Court, were on brief for appellant. Zacks,

Jennifer Assistant United States Attorney, Stern, whom K. Donald Pe- Agents arrested cooperate. agreed for brief Attorney, was on United States later, Chicago. days a few trosino appellee. Thereafter, con- recorded Magill,* Stahl, Judge, Circuit and “Laddie.” Before Petrosino versation Circuit Lipez, Judge, and Senior Circuit jury grand September On Judge. against Salimonu an indictment returned heroin, in viola- import conspiracy STAHL, Judge. Circuit 963, 952(a); importa- §§ tion 21 U.S.C. trial, jury found defen- 14-day After a heroin, of 21 U.S.C. in violation tion on guilty Oladipo Salimonu dant-appellant 2; 952(a) conspiracy § § and 18 U.S.C. alia, conspir- counts, including, inter eight distribute, con- and to with intent possess con- appeals He heroin. acy import to heroin, of in violation to distribute spiracy care- After a grounds. several victions on 846; her- 841, possession of §§ 21 U.S.C. and Salimonu’s of the record ful review distribute, in violation to with intent oin we affirm. arguments, 2; 841(a)(1) § § and 18 U.S.C. 21 U.S.C. fa- a communications use of and unlawful (the drug I. to facilitate telephone) cility 843(b). § offenses, in U.S.C. violation of Background 27, July 1993. on was arrested Salimonu most light in the the facts We sketch inwas while Salimonu arrest After the and See United to the verdict. favorable a war- agents custody, customs conducted (1st Cunan, Cir. 152 F.3d States relying apartment, of his search rantless 1998). conspir in a was involved Salimonu party. a third consent of upon the Petro- Perry, Ralph Christopher acy with two more than December On McKinnon, import to others sino, and Kim court, in appearance after his years first Per and Thailand. Salimonu heroin from to be his indictment moved for Salimonu 1988. since about each other ry had known alleging viola- prejudice, dismissed 1990, Perry and in Salimonu Beginning (“STA”) Trial Act the Speedy tions of both smuggling about had several conversations to a right Amendment and his Sixth Perry re recruiting couriers. drugs and denied court trial. district speedy The act as and McKinnon cruited Petrosino the time motion, that most of ruling couriers, Salimonu and introduced drug STA excludable from elapsed was that had 1992,Petrosino May In “Laddie.” them as on November began Trial calculations. Thailand, where Bangkok, traveled at his him times called “Laddie” several Petrosino, McKinnon, trial, and Per- suitcase, At given hotel. Petrosino was plea agree- Jakarta, entered ry, of whom had all brought to McKinnon which he “Laddie” ments, as Salimonu identified called McKinnon “Laddie” Indonesia. testimony him. Their against and testified every day was Jakarta. she her hotel alia, rec- inter by, phone was corroborated traveled to Boston subsequently McKinnon phone contract through suitcase, ords discovered agents where customs with the during the search kilograms of discovered four it and inspected found recordings phone and apartment, immediately agreed McKinnon heroin. McKinnon between agents, conversations with the customs cooperate “Lad- Petrosino and and con “Laddie” phone night agents recorded suppress moved die.” Salimonu and McKin- “Laddie” versations between documentary evi- and other records accompanied then non. search; district in the seized Chicago, dence Airport to O’Hare McKinnon also Salimonu denied motion. also court Perry, arrested who where * Circuit, designation. sitting by Eighth Of the

fi7 attempted to expert introduce monu appearance made his initial in the taped that the voice in the recordings was district court September on 1993. Sali- his, not but the district court excluded the monu moved for a bill of particulars and testimony. discovery further relating to cooperat- ing on witnesses October 1993. On 6, 1996, jury On December found Sali- 11, 1993, November without a hearing, guilty monu on all counts. He sen- magistrate judge denied these mo- tenced imprisonment to 264 months’ fol- 9, 1993, tions. December On by 60 supervised lowed months’ release. moved for reconsideration of the magis- appeal, On challenges his con- trate’s November 11 orders the district (1) viction on grounds: five he was denied court, requested a hearing on the (2) STA; rights under the he was motions. The district court took no ac- denied his right Sixth Amendment to a tions on Salimonu’s motions for reconsid- trial; speedy evidence to convict used eration and did not schedule a hearing for him illegally obtained in a warrantless later, either motion. years Two on De- search apartment of his that violated the cember Salimonu moved to dis- Amendment; (4) Fourth the district court miss against the indictment him with improperly expert excluded prejudice, asserting violations of the STA. evidence; from and the evidence was parties that, The not in dispute are insufficient as a matter of law establish 8, 1993, as of December fewer than non guilt beyond a reasonable doubt. days Thus, excludable had elapsed. turn, discuss each issue in We setting merits of Salimonu’s STA motion turn on forth additional relevant facts as neces- period whether the time beginning Decem sary. 9, 1993, ber when Salimonu made two mo reconsideration, tions for is excludable for II. 29, 1996, STA purposes. On June more than six months after Salimonu had filed Speedy Trial Act indictment, his motion to dismiss the STA, Salimonu claims that the district court ruled that the time between 3161-3174, §§ U.S.C. was violated filing of Salimonu’s motions recon delays trial, in bringing his case to and sideration on December 1993 and the that the district court should therefore motions, hearing on those which it sched have dismissed his indictment. This court uled for August was excludable an reviews STA determination “for clear 3161(h)(1)(F). under section That section error as to factual findings and de novo as “delay excludes resulting pretrial from any Santiag to legal rulings.” United v. States motion, filing from the of the motion (1st Cir.1997) o-Becerril, 130 F.3d through on, the conclusion of the hearing (citation omitted). of, or other prompt disposition such mo 3161(c)(1) Section of the STA dictates 3161(h)(1)(F). § tion.” 18 U.S.C. that a defendant be tried seventy within court hearing first determined that a was days of the indictment or date of de- required for Salimonu’s motions to recon appearance, first fendant’s whichever sider, and then concluded that long 3161(c)(1). § comes later. See 18 U.S.C. delay in holding hearing was therefore 3161(h), however, Section mandates the ex- See irrelevant. Henderson v. United periods delay clusion of certain in calcu- States, 321, 329-30, 476 U.S. seventy these lating days, including some (1986) (“[WJhen 90 L.Ed.2d 299 a delays resulting pretrial from motions. pretrial requires hearing motion a ... sub 3161(h). § See 18 U.S.C. (F) section on its face excludes the entire Here, the relevant dates proceed- period and filing between the motion ings generally are in dispute. not Sali- the conclusion of the ... hearing whether cooperating discovery motion for from hearing is holding that delay a or not regular prac- It is this court’s ”); individuals. necessary.’ United States ‘reasonably motions (1st Cir.1996) provide hearings on such tice Staula, 80 F.3d This intends to do so here.” court (“For hearing, a require motions a was hearing a indication that is sufficient the time between excludes subsection in a court is better required: the district hearing on that and the filing of the motion necessity aof position to determine the motion, delay overlong, inex even if the are, although the hearing we than unreasonable.”) (citations omit plicable, delay significant, ques- we are loath to was ted). first contends judgment this area ab- tion the court’s hearing a determining court erred subterfuge.1 sent obvious for reconsid for his motions required was signifi error would be eration. Such Alternatively, suggests cant, potentially in contrast to because hearing required if a for his that even from time that is excluded unreasonable motions, not delay in his case was hearing a is re calculations when STA motion,” “delay resulting any pretrial only days may be excluded quired, 3161(h)(1)(F) add (emphasis § 18 U.S.C. required. hearing is not when ed), by administra but rather was caused Henderson, 106 S.Ct. 1871 476 U.S. have held oversight. tive Some circuits hearing is not re (stating that when link there is no causal when given “prompt be a motion must quired, delay, and the the de pretrial motion the 30 within no more than disposition” excludable, lay is not see United States under ad (2d Cir.1995) for matters held days provided Gambino, 59 F.3d 3161(h)(l)(J)). While visement section hearing when on mo (delay not excludable authority on what constitutes trial); there is little until after tion continued Unit implied court required hearing, a this has Clymer, ed 25 F.3d 830-31 States (9th Cir.1994) (same), the request hearing for a ends the though that a not all requested a see inquiry: appellant approach, have followed this “[T]he circuits motions, Riley, acknowl 991 F.2d 123 hearing on his United States thus (4th Cir.1993) hearing when a (holding that appropriate. Conse that one edging until after pretrial on a motion is deferred the factors we need not discuss quently, trial, filing all time from the of the of the given a motion that whether determine disposition its is nonetheless Staula, motion until F.3d at ‘requires’ hearing.” a 80 Wilson, excludable); States v. 835 United 2; v. Tanne accord United States 601 n. (D.C.Cir.1987) (holding F.2d 1443 (5th Cir.1995). hill, 4 1052 n. 49 F.3d that of the time between “the exclusion in requested hearing a Because disposition pretrial of motions filing and case, properly we can this assume 3161(h)(1)(F) § and is automatic under hearing required for section such a trial”). delay actual of the need not cause 3161(h)(1)(F) event, any In purposes. in adopt if were to the rule Even we found specifically court in this case district however, the rule Clymer, and Gambino which type of that this was the motion apply particular in this would not factual hearing on the required: “[A] are hearings situation. 9, 1993 is re filed on December motions disposition. Clymer, Both In the dis- quired proper for their both Gambino issues, the mo- explicitly trict courts continued particularly motions raise serious issue, however, brief, reply Sali- because in his brief implies that the main 1. In his argument. hearing He states: a in or- monu court manufactured abandons district impugn "Appellant not mean to requirements. We have does in evade the STA der to integrity way of the district court in this permit either the that "we will not stated ... one jerry-build [is] case. The raised not which prosecution to issue court or the district sincerity perceived of the district looks to 'hearing' order to thwart the concinnous a in Staula, designation of a after-the-fact motion Speedy court’s operation of the Trial Act.” hearing.” 'requires' a address this as one which at 602 n. 3. We need not F.3d finding tions at issue until the end of the trials. a violation of Salimonu’s Sixth effect, these continuances amounted to In right trial, speedy Amendment to a al- prejudice to denying the motions without though it would be unusual to have a case filing of renewed submissions after where the STA is satisfied but the Sixth Gambino, 359; trial. See 59 F.3d at guarantee Amendment is violated. See Clymer, Clymer at 830. The court Santiago-Becerril, 130 F.3d at 21. This exceptional that this was the situa- stated circuit reviews district court’s ruling on in pendency tion which “the of the motion speedy Sixth Amendment trial claim for trial; delay did not rather start abuse of discretion. See id.2 delay in the trial commencement delay hearing caused the the motion.” The district court correctly ana contrast, Clymer, F.3d at In “in 831. lyzed Salimonu’s Sixth Amendment claim ordinary pretrial delay case all (1) light of four length delay; factors: pendency coincides with the of a motion (2) (3) delay; reason for the defendant’s (be- will occur as a result of that motion right; assertion of his preju ordinarily district court will cause the hold dice to defendant. Wingo, See Barker v. off the trial date until it mo- decides the ” tion) U.S. Moreover, .... at Id. the Su- (1972). L.Ed.2d 101 The court preme Court’s determination Henderson determined delays that even unreasonable are “auto- were, delay the reasons for the at matically” support excluded lends Salimonu, least in part, attributable to idea that we should not examine whether promptly Salimonu failed to assert his pending delay motion “caused” the in a right. The court therefore concluded that Henderson, narrow sense. delay the length prejudice and the Rather, long 106 S.Ct. 1871. as as a outweighed by Salimonu were his own hearing on the motion is to be conducted responsibility for delay. trial, delay hearing before until the automatically delay should be considered Salimonu has failed to meet his burden from” “resulting pretrial motion. showing that this determination was an two-year abuse of discretion. While the delay in bringing Salimonu to trial delay in proceeding Salimonu’s trial overlong, was indeed and the district court inordinately lengthy, Salimonu never expedi- should have acted with much more Nonetheless, tion. hearing attempt because a was made an to promptly assert required on his motions for reconsidera- speedy right trial or to trial. expedite his tion, delay “resulting from” these mo- Barker, 532, 407 U.S. at 92 S.Ct. 2182 properly tions was cal- excluded from STA (finding that right failure to assert his “will Thus, culations. the district court did not it a prove make difficult for defendant to in denying err motion to dis- Salimonu’s trial”); speedy that he was denied a Santi- miss for violation of the STA. (“A ago-Becerril, 22 130 F.3d at defendant indication, give prior should some to his

III. violation, speedy assertion of a trial Amendment Sixth Claim trial.”) (citations proceed he wishes to to omitted). brought Salimonu never The fact that not STA was automatically violated does not preclude pending us motions to the court’s attention 1994). newly-constituted panel, 2. We note that most circuits review de novo Cir. But as a legal the right conclusion that a Sixth Amendment liberty we are not at to the standard of revisit speedy to a See, trial has not been violated. e.g., Sawyer, v. review. United Stales 144 See, Brown, 344, e.g., United States v. 169 F.3d (1st Cir.1998) (stating F.3d 196 that First (6th 1999); Manning, 348 Cir. United States v. panels generally by prior Circuit are bound (9th Cir.1995); 56 F.3d United decisions). panel Dirden, (10th States v. 38 F.3d of this to authorize the bearer bringing his This is years before waited two letter, all the Tonya pick up Picou to Therefore, say that Ms. cannot we claim. STA Wacker, Apt. E. contents of 233 its discretion court abused the district posses- retain and move them out and responsi- own to determining that Salimonu’s pres- as I am the said contents outweighed preju- sion of bility delay problems. encountering legal some ently dice to him. (ssn I 341-74- So Maxwell Ola-Cole 9863) permis- hereby give Tonya Picou IV. furnishings and all the sion to remove Search entirety. in their personal effects warrant- claims that the Maxwell Ola-Cole /s/ violated the apartment of his less search Apt. 3402 Picou, Tonya Amendment because Fourth security sweep a performing After first authority have party, did not a third letter, agents reading the and then her to the search and because consent apartment. Picou searched Salimonu’s involuntary. We review consent was search, entire during the present par a third of whether legal determination an hour. which lasted about to a search de ty authority to consent Schaefer, search, agents novo. United States found and During the Cf. (1st Cir.1996). 562, 565 Voluntari F.3d from the seized a number of documents question ness of a consent to search is in- and drawers. These kitchen counters fact, review for clear error. See which we in the contract cluded cellular Kimball, United States Angela name of Nash. (1st Cir.1984). Salimonu moved August On search, evidence from the suppress the Background

A. authority that Picou lacked arguing both evidence, by the district that her The as found to the search and consent consent court, following. Sep- voluntary.3 holding On After an evi- establishes was not in dentiary hearing, while Salimonu was the district court deter- tember gave Picou actual custody, management of Salimonu’s mined that the letter budding agents informed customs to search apartment authority permit granted that a woman had been The court also de- agents apartment. apartment. voluntary. The to Salimonu’s cided that Picou’s consent was access apartment, agents proceeded door, and Picou answered. Analysis

knocked on the B. agreed that Picou testified question whether There some also told the apartment. of the She search authority gave Picou to Salimonu’s letter giv- received a letter agents that she had search. See United States consent to the authority prop- to move Salimonu’s ing her Matlock, 7, 171 n. 94 415 S.Ct. v. erty apartment, presenting from the (“common 242 au 39 L.Ed.2d note, following handwritten them parties thority” property such that over Salimonu, using one of his signed by rests on “mutual may consent to search aliases: by persons generally property use of the May It Concern To Whom for most joint access or control having added). But we purposes”) (emphasis Plaza Columbus c/o protection agency child to have the Illinois that the obtained 3. Salimonu claims explic- away take her son. The district court manner. Ac- consent in a coercive Picou's facts, Salimonu, itly however, recitation of the agents posed rejected Salimonu’s cording as movers, that Picou’s purse per- and stated without searched Picou’s mission, happened not credible. what lying, threatened about accused her of and need not reach that more difficult issue But the fact that Salimonu ongoing had an relationship Perry any error that the district was all but con- because court Moreover, harmless; ceded at trial.7 the mere fact may have it is committed “ Perry that Salimonu regularly called did ‘beyond a doubt that the er- reasonable little help prove the central point: that complained ror of did not contribute to the ”4 Salimonu was involved in an illicit conspir- obtained.’ verdict United States acy, charged. as was (1st Cir.1996) Wihbey, 75 F.3d (quoting Chapman California, 386 U.S. contrast, In there overwhelming evi 17 L.Ed.2d 705 indicating dence that Salimonu was in (1967)). specific drug volved in the in conspiracy question. See United States v. Innamorat noted, emerged As the evidence that as i, (1st Cir.1993) 996 F.2d (stating a result of the search included a cellular that “wrongfully admitted evidence must telephone Angela contract the name of ‘quantitatively be assessed in the context Nash.5 This contract did lead to the discov (citations of other presented’”) evidence ery telephone records which established omitted). co-conspirators The three testi 31,1991 through that from December Feb fied detail as to leadership ruary four 1992—almost months before conspiracy, role in the avowing that Sali- drug country couriers left the —Sali- planned drug trips, paid monu the co- house, Perry’s monu made 40 calls to conspirators’ expenses, gave instructions Perry’s beeper, calls to and 14 calls as to stay where the couriers should (who Perry hotels where and McKinnon do, what should and contacted the co- involved) romantically tempo were were conspirators frequently. The fact that the rarily living. The content of phone these co-conspirators’ testimony three was de calls is unknown. basically consistent, tailed despite course, phone Of these records tended fact all apprehended three were point already reinforce a well-estab- apparently op different times and had no by independently lished evidence obtained portunity to contact one another after Perry arrests, of the search: that Salimonu and their was substantial evidence of regular Powell, were in contact with guilt.8 Compare one another.6 Coppola v. harmless, name, address, date, 4. Because error would be we nu with his birth number, argument security also need not examine the that Pi- social and that Salimonu involuntary. cou’s consent was passport used this information to obtain a "Christopher Perry.” postcard the name A introduced, 5. The also as a result Perry sent from Salimonu to in 1991 included search, personal correspondence signed forget going the statement “Don’t we are all calling "Laddie” and an Illinois Bell card Perry’s way.” address books listed multi- (one bearing “Foley Shomuga” the name “Laddie,” ple phone numbers for and his alleged co-conspirators). unindicted Nei- appointment book had notations for piece any significance ther of evidence had Finally, April “Laddie.” bill government's case. There was other evi- Perry from the hotel where McKinnon and dence, including testimony by agent a travel staying were indicated that either McKinnon Salimonu, who knew and identified that Sali- Perry called Salimonu from the hotel. monu went the nickname "Laddie.” Sho- muga played part conspiracy, a small in the Indeed, objected Salimonu's counsel calling and the fact that there was a card in ground introduction of these records on the only his name indicated that Salimonu knew irrelevant, stating: that were "I don’t Moreover, acquaintance him. Salimonu’s anyone going argue think to [about wheth- Shomuga independently was with corroborat- Perry Mr. had known Mr. Salimonu.” Tr. er] letter, government's ed a which the hand- at 54-55. 11/20/96 writing expert testified without contradiction handwriting, containing was in Salimonu's a significance 8. In order to minimize of "Foley.” reference to and, co-conspirators' testimony consistent Documentary presented perhaps, suggest 6. evidence at trial that McKinnon and/or that, 1990, Perry provided may mistakenly showed in Salimo- Petrosino have identified Sal- (1st Cir.1989) (no also corrobora- 1562, 1571 spiracy, harmless but were essential F.2d testimony. Ac- conflicting co-conspirators’ untainted testimo error where tion of the jail Salimonu, inmates serious ny “raisefd] of three of cording to the records were credibility” and there questions of helped bolster McKin- calls to the hotels evidence”) with in identification “gaps credibility by corroborating her testi- non’s (1st Moran, Cir. v. Clark called her. But the mony that Salimonu 1991) Coppola, because (distinguishing only that McKin- phone records indicated testimony inmate though untainted even being truthful as to one non was inherently suspect be “may have been unimportant point her testi- narrow motives for personal inmates’ cause of the Moreover, corrob- mony. ample there was testi conflicting there was “no testifying,” testimony central as oration of McKinnon’s reconciled” and mony that needed be drug in the con- involvement corroboration). This testi there was other spiracy. supra. by tapes of mony supported further any find that error in the We therefore between incriminating conversations of the evidence derived from the admission between Pe- McKinnon and “Laddie” and beyond a agent was harmless reasonable and “Laddie.”9 The travel search trosino bought plane from whom Petrosino doubt. Bangkok identified Salimonu as

ticket to “Laddie,” travel regular customer V. that Petrosino told agency, and testified by “Lad him that he was recommended of Evidence Exclusion from Per Finally, die.” invoice seized next claims that the ry’s possessions included handwritten excluding expert Bangkok, of the names of hotels district court erred Background knowledge A. entific as defined Daubert v. Pharms., Merrell Dow Inc. See 509 U.S. presented against Salimonu in- Evidence 579, 592-94, 125 L.Ed.2d incriminating of taped recordings cluded (1993) (relevant factors include wheth- “Laddie” conversations tested, technique er the has been whether McKinnon and between “Laddie” and Pe- review, subject it peer is whether there presented jury, trosino. Also to the for high is a or potential “known rate of er- purposes comparison, of was a voice ex- ror,” and whether technique enjoys emplar recording that contained a of Sali- general within acceptance the scientific voice. monu’s community). jurors Given that the could sought to introduce the testi- tapes listen to the and discern differences mony expert of two witnesses to establish themselves, in the voices the court also that the voice in the conversa- taped determined that this would not be an area exemplar tions and on the Salimonu’s voice in which expert testimony would be helpful permitted were different. The court Rob- jury. to the id. 113 S.Ct. 2786 Berkovitz, developer specto- ert of a (asserting expert testimony must as- gram computer program plots which jury in resolving sist a relevant factual frequency magnitude speech sig- of Next, dispute); Fed.R.Evid. 702. nals, testify that substantial differences Cushing court concluded that was not a spectograms between the of the two voices qualified expert in the field if even this was tapes indicated were of two differ- proper expert testimony, a area for and his people. ent But the court would not allow testimony should therefore be excluded Stephen Cushing, linguist, testify Dr. under Rule 702. See Fed.R.Evid. 702 listening tapes based on his to the that the (stating that “qualified a witness as an two voices were different. skill, expert knowledge, experience, dire, The district court conducted a voir training, may give expert or education” during Cushing which stated that he had testimony). Finally, the court stated tapes listened to the several times and testimony even if the were admissible un- distinguished 14 differences between the der Rule it should be excluded under Cushing two voices. admitted that he had prejudice Rule because the unfair of training special no certification in voice testimony substantially would out- comparison, identification or and that he weigh probative its value. See Fed. only engaged recognition pro- in voice R.Evid. 403. cedures two or three times before. He regard- had never testified in court before Analysis B. ing voice identification. He conceded that voice, person may disguise be able to contends that and stated that he did not know whether subjecting compari court erred voice exemplar disguised. the voice knowl argues specialized son—which he Cushing knew of no studies to determine edge, knowledge not scientific the—to the rate of error for this kind of identifica- analysis determining Daubert whether Finally, lay person tion. he stated that a expert upon rests sound scienti linguistics training without would be able Salimonu, methodology. According fic to discern the same differences that he had analysis only applies to testi the Daubert by listening tapes. mony upon knowledge. based scientific A dire, Supreme recent Court case contradicts Based on the voir the district court this assertion and affirms that district Cushing’s testimony, relying excluded First, court has discretion to determine the relia upon theories. several alternative bility knowledge assert any specialized lack an rate or pointing to the error Kumho Tire reliability, ecf'by expert other indicia the court con- witness. See — Co., Carmichael, U.S. -, comparison cluded that voice was not sci- Ltd. v. 1167, 1171, therefore, excluding abuse its 143 L.Ed.2d 238 discretion S.Ct. (1999). seem, then, that the Cushing’s testimony. It would analysis Cushing’s that court’s assessment reliable, upon the lack of an

was not based VI. rate, that a could testimony error the voice Sufficiency of the Evidence disguised, be and the lack of other indicia soundly reliability, was within the Finally, Salimonu contends that id. court’s discretion. See that the did not establish he (holding that the district court’s deci- guilty of all elements of the crimes satisfy expert testimony sion that failed to beyond a reasonable doubt. We review any factors “or other set of Daubert’s “whether, guilty the verdict to determine reliability criteria” was not reasonable viewing light after the evidence discretion). abuse of prosecution, any most favorable to the ra rate, Cushing At admitted tional trier of fact could have found the layperson distinguish that a could the dif beyond essential elements of the a crime[s] by listening ferences that he found careful Virginia, doubt.” reasonable Jackson Thus, ly tapes. the two it was within 307, 319, S.Ct. .443 determine that (1979) (citation omitted). the court’s discretion to L.Ed.2d 560 testimony Cushing’s would not “assist the that argues there trier of fact to understand the evidence or support was insufficient evidence a fact in determine issue.” Fed.R.Evid. conspiracy aiding convictions for and for argues testimony that 702. Salimonu abetting on Counts jury, jury would assist because because there was no that evidence the co- not, assistance, expert could without un conspirators requisite knowledge had the derstand the reasons for the differences in they that agreeing import were con tapes or determine whether the differ pat trolled substance. argument This that speakers ences indicated the two were ently Perry incorrect. that testified he Shay, different. United States Cf. many conversations with Salimonu (1st Cir.1995) (questioning “ smuggling drugs. about This itself is layman ‘[w]hether untrained would Perry sufficient that req evidence had the qualified intelligently be to determine knowledge. uisite degree, particular to the best issue large McKinnon and Petrosino about the enlightenment having without those money they sums of were to receive in specialized subject understanding of the ”) (citations omitted). exchange transporting for a suitcase into matter involved’ We country jury would enable reasonable Cushing are unconvinced. stated that an they import to infer knew were lay ordinary person training without ing country. a controlled substance into the linguistics would be able to discern that Finally, jury the court instructed two voices were different without guilty it could find Salimonu knowing why. important, importing It was not how ever, if jurors identify heroin even McKinnon did not know she be able to exactly bringing which vowel sounds or intonations was a controlled substance into tapes: job country were different in the two their “if willfully the defendant simply bring to determine whether the two caused her to a controlled substance By Cushing’s country.” voices were different. own into the There was sufficient admission, jurors perfectly jury were well- evidence to reach this conclus not, that. equipped to do The court did ion.10 states, alternatively edge imported.” By

10. Salimonu without ar that heroin was to be law, develop gument failing argument, or citation to '(cid:127)'‘Ithe case See, required specific proof e.g., indictment of knowl has waived it. United States v. Bon v. Don United States exceptions.” the lished argues also Finally, Salimonu (internal (1st Cir.1992) lin, 31, 982 F.2d 33 by McKinnon identification voice omitted). one Consent on marks is quotation a conviction support to was insufficient telephone. require to the warrant exception of a involving use such counts the Id.; the testimony and v. Busta see also Schneckloth McKinnon’s ment. Between 218, 219, there provided, monte, 36 93 S.Ct. the conversations 412 U.S. tapes of the support (1973). the con of evidence In order for plenty 854 L.Ed.2d regard. valid, in this jury’s verdict to be a warrantless search sent

however, must come either the consent third party or “from a the defendant VII. authority common over possessed who Conclusion premis relationship other sufficient reasons, affirm we foregoing the inspected.” For sought to be or effects es respects. in all convictions Matlock, Salimonu’s 415 U.S. United States (1974). 242 39 L.Ed.2d Affirmed. that com in Matlock explained The Court Dissent folloivs. authority requires mon by persons property the mutual use of dissenting. LIPEZ, Judge, Circuit control joint access or having generally “any error majority concludes The that it is reason- purposes, so for most [in may have committed court district the co- any of recognize that the able to is search] the evidence from admitting the permit right has the inhabitants a reason- “beyond it is because harmless” and that the right own in his inspection of did complained the error doubt that able one of the risk that have assumed others I obtained.” the verdict not contribute the common might permit number their that conclusion. disagree with respectfully be searched. area to analyze legality therefore I must harmless error. and the issue search authority which n. 7. It is common Id. at ability to consenting party gives the The Search conduct search government allow court’s the district question I not do ob- specifically “even when defendant Picou accept that e.g., I findings, Donlin, factual at 33. This it.” jects to do, I the search. voluntarily consented to an requirement reflects authority common court’s however, the district disagree with consenting party principle: important had actual that Picou determination legal Fourth waive the defendant’s not does alternative, or, in the authority legal Instead, consent- rights. Amendment consent to authority to apparent she to waive voluntarily consents ing party apartment.11 search Salimonu’s property in the interest privacy or her own gov- searched, validating the thereby to be upon a “any intrusion It is basic warrant- otherwise-proscribed ernment’s interest privacy constitutionally-protected establishing burden “The less search. se unrea- per warrant proper without upon authority [the rests that common Amendment the Fourth under sonable Rodriguez, Illinois government].” estab- specifically subject only to few holding or Cir.1997) alternative thority (1st doctrine as 106 F.3d giorno, authority as acknowledged apparent waived (“We steadfastly merely deemed issues have manner, govern- perfunctory by not appeal in a theory on offered raised an alternative developed argumentation.'') accompanied (citations event, assuming the district ment. In omitted). authority doctrine adopted apparent court rationale, legal of this review alternative as an transcript whether from the is unclear It novo. is de determination apparent au- adopted district court S.Ct. L.Ed.2d if government different had attempted (1990). to secure consent to possessions search that had already been removed from district court in concluding erred apartment question is a we do not requisite that Picou had the have to authority to consent to address. The fact is the search of that the apart At suppression ment. decided to hearing, it execute a warrantless search of there; established that Picou did not live apartment Salimonu’s justify and must this possessions none of her apart was search.13 Lacking joint access or control ment; indeed, she never been in had over the apartment purposes, for most Pi- apartment day before the it was searched. cou authority lacked to consent to its “joint Far having from access or control search. purposes,” for most authority Picou’s government’s The apparent alternative highly circumscribed, as was evident from authority theory justifying for the search the letter and the circumstances surround also misses the mark. Even if Picou ing presence her (e.g., that she needed the lacked actual authority to consent to the building management provide her with a search of apartment, gov- key). permission She had to enter the argues, ernment search was valid be- solely apartment purpose for the of facili cause Picou apparent authority to tating the possessions move of Salimonu’s consent. Relying on Illinois v. storage. into apartment Access to the Rodri- for guez, 2793, 497 that limited 110 purpose S.Ct. 111 cannot be reconciled joint (1990), with the L.Ed.2d access control 148 the government or for most con- purposes which required is for tends that valid con the Fourth Amendment is not sent. See United v. Hyson, States 721 by violated a consensual warrantless (1st Cir.1983) F.2d 859 (citing Mat search if police mistakenly, but rea- lock, 988).12 415 U.S. at 94 S.Ct. sonably, believed that the consenting par- ty had legal actual authority to consent to The district court not distinguish did 188-89, the search. See id. at 110 joint (and S.Ct. access or control over however, 2793. In Rodriguez, the police authority of) thus to consent to a search literally officers were tricked into apartment joint reason- access control ably believing that possessions consenting over apartment party inside the had actual emphasized authority. when it See id. at its decision Picou’s S.Ct. 2793. authority police The in Rodriguez “take and possession retain re- sponded property to a call in the and were defendant’s met Fisch- apart- er, ment.” who Warner, signs showed of a United severe States beating. (9th Cir.1988) She told the (permission officers where they could for landlord to locate her enter assailant apartment partic- agreed for to take purpose ular give did not them to the apartment landlord authori- and to unlock the toty consent to search door with apartment); key her see so that the officers Fultz, also United States v. could F.3d 1102 arrest him. Fischer repeatedly re- (9th Cir.1998) (distinguishing joint access ferred to apartment apart- as “our” garage joint to a ment, access and control and told the officers that she had personal over the property in garage). clothes and furniture there. Id. Some of Whether the situation materially would be representations these turned out to be decision, announcing 12. In its the district the search was a lawful tenant of court also apartment found that Salimonu would privacy have and retained a interest potentially subject therein. been to eviction within weeks of Although the search. the district may only fact, court noting have been 13. It why is unclear did not finding legality is irrelevant to the of the seek a apart- warrant to search Salimonu's undisputed It search. is that at the time of ment. purport to alter the Rodriguez does not concluded false, Supreme Court and the authority to determining of no legal “determination standard court’s that the lower Instead, it authority apartment over the to a search. instructs consent common legal apply Id. at that courts are to the correct obviously correct.” Nonetheless, they held that .only the Court to the facts as standard not many to the facts as rea- actually existed but generally “what is demanded regularly that must would have police officer believed determinations sonable factual case, ... In unlike Rodri- by [government] them to be. be made correct, always be but factual misunderstand- they guez, there were not that no 185-86, reasonable,” relationship id. at with the always ings about be Picou’s (italics added), upheld apparent apartment, and au- therefore S.Ct. apparent thority inapplicable. Fischer’s doctrine is offi- the search because of who had only the search. knew that someone authority to consent to cers ¡from building to the letter come case, fac are no mistaken In this there to the authorizing her access and the by the officers tual determinations keya given had also been apartment inappli authority is thus doctrine apparent by building manager. the apartment On Whitfield, 939 v. cable. See United States alone, govern- of this information the basis (D.C.Cir.1991) 1071, (holding F.2d 1074 apartment and agents went to the ment Fourth only that the Rodriguez that “held the search. It is Picou to asked consent warrant- not invalidate does Amendment they read the irrelevant whether letter mis on a reasonable less searches based securing after from Salimonu before fact, from a rea distinguished as take of because, as consent14 discussed Picou’s concluding of law” and mistake sonable above, matter of law would the letter aas applies to situations “Rodriguez that thus caution “warrant a man of reasonable not valid have had in which an officer would 188, belief,” 497 at Rodriguez, U.S. the as he if the facts were to search consent 2793,15 “joint Picou had 110 that ac- S.Ct. be.”); United reasonably believed them apartment] the for [over cess or control (9th Welch, 761, 764 Cir. F.3d States v. Matlock, at 415 U.S. purposes,” most 1993) (“[T]he only if applicable doctrine is such circum- n. 94 S.Ct. Under 988. to be true by the officers the facts believed stances, entry was unlaw- the warrantless a matter of justify the as would search 188-89, at Rodriguez, ful. 497 U.S. law.”). nor Supreme Court Neither the 2793. 110 S.Ct. Rod applied that has appeals court of authority doctrine has riguez’s apparent Beyond a Error Reasonable Harmless a warrantless it to validate extended Doubt who have made rea by search officers that the warrantless Having determined States v. error of law. See United sonable (10th Fourth Amend- Salinas-Cano, search violated Salimonu’s Cir. searches, 1992) (“[The right against unreasonable ment mistake] police officer’s government inquire I must whether then a mistake of mistake of law rather beyond a prove “to carry can its fact, does not re burden Rodriguez and therefore issue.”) (internal com- doubt error omit reasonable citation solve to the verdict did not ted). plained of contribute against objective standard: would facts finding on this district court’s factual 14. The appears point ambiguous but it the moment ... to the officer at available district court found caution in a man reasonable "warrant of ’ securing read letter before did not consenting party had author- belief” apartment. Picou’s consent to search Rodriguez, 497 U.S. ity premises?” over the Ohio, Terry (quoting 110 S.Ct. 2793 factual determinations "As with other 1, 21-22, 20 L.Ed.2d 88 S.Ct. 392 U.S. seizure, determina- bearing upon and search (1968)). judged ‘be to enter must tion of consent Chapman California, obtained.” planned monu the drug trips, paid the co- 17 L.Ed.2d conspirators’ expenses, gave [and] instruc- (1967). government’s theory at trial tions as to where the couriers stay should was that organized and led a fact, and what should do.” In howev- conspiracy er, involving Christopher Perry, McKinnon’s and Petrosino’s testimony McKinnon, Petrosino, Kim Ralph largely was derived Perry from what told among against others. The case Salimonu them. McKinnon and Petrosino had limit- came testimony Perry from the personal ed Salimonu; contact with their McKinnon, caught who had been with evi- involvement in conspiracy was for the incriminating dence a drug them in impor- part most at the Perry direction of as well scheme, Petrosino, tation other, and from who as unindicted co-conspirators who admitted his conspira- involvement testify. did not They were by recruited cy. Each plea bargained of them had in Perry and both had personal relationships exchange testimony for implicating Salimo- with Perry pre-dated which and were inde- nu. Other than pendent three alleged conspiracy. Perry’s co-conspirators, the government’s remain- plea motivation to bargain implicate ing evidence largely consisted tape- Salimonu in exchange leniency was telephone recorded conversations clear, abundantly credibility and his Salimonu and McKinnon and Salimonu and further undermined his admission that Petrosino; and evidence the seized dur- he had been a drug dealer marijuana of ing the warrantless search of Salimonu’s prior and cocaine conspiracy. apartment. Petrosino testified meeting Salimonu

The theory defense’s was that Salimonu only on two or three occasions in the base- had been Perry, mis-identified —that ment of Perry’s the house of mother where McKinnon, and falsely Petrosino had impli- Perry had been cutting Salimonu’s hair. cated him protect themselves. One of Any conversation between Salimonu and government’s agents lead testified that brief, himself was consisting exclusively of a woman who had join been recruited to salutations, and spoke he never to Salimo- but did not in fact in participate the con- nu in person about anything relating to the (also spiracy identified man Niger- another fact, conspiracy. In Petrosino testified ian) as “Laddie” as the head of and Perry that began recruiting him for the conspiracy. There evidence that was for conspiracy in April more than three some during time the fourteen months be- months the last time Petrosino ever after tween the end of conspiracy and Sali- saw Salimonu in person. Petrosino also monu’s eventual arrest testified that he given money was in fur- man, considered Olayinka Apanpa, to therance of the conspiracy on two occa- for, be the “Laddie” were looking and by sions a man Foley Perry named whom (each three searches pursuant them to a of had instructed him Perry meet. also warrant) search executed on Apan- were told Petrosino get how to pre-arranged pa’s properties. plane ticket and acquire how to passport, and it Perry was provided who Petrosino

I now turn to a more detailed discussion money with for his passport application. of the government’s evidence. Indeed, on cross examination the de- fense, The Consistency Co-conspira- Petrosino testified that on three of tors’ Testimony separate expressed occasions he a desire to abandon the conspiracy Perry but that The majority consistency lies”) her initial interro- during “a bunch of conspiracy. course of admitted on the McKinnon also gation.16 attempt that she lied witness stand Three of four conversations (the Perry father of one of her protect to man was identified McKinnon and the who children). benign. were likewise Sali- as Salimonu17 McKinnon how her asking monu is heard emphasizes that the majority The also was, McKinnon’s helping arrange to trip were consistent with one co-conspirators Chicago, sympa- and flight from Boston to they “apparently had though another even McKinnon misses thizing with how much to communicate after their opportunity no conversation, In their fourth her children. However, was arrest- McKinnon arrests.” they go McKinnon: “[d]id asks Chicago flew to May on 1992 and ed your at all?” When McKin- through stuff (accompanied by U.S. Cus- day the next negative, in the responds non in order to make controlled agents) toms course, jury says: “Thank God.” Of to meet delivery Perry. Perry to came that it was in fact Salimonu could decide 30, 1992 airport May on McKinnon at evi- exchange as tape on the and use McKinnon Perry time met and from the knowing participation (who dence day for over a had under arrest been conspiracy. in the arrested point) until he was any know my; that she did not original story she said to the U.S. Cus- 16. McKinnon's only spo- had co-conspirators' real names and contacted that she had been toms telephone. ken to them over Shawn Wilbor- by telephone a man named go to Indonesia to ough who asked her to challenged it was in whether 17. The defense Nigerian healing medicine. She transport taped phone conversa- on the put fact Salimonu that Shawn had her further testified expert testimony that the presented co-conspirators tions and with communication other tapes not Salimonu's. Billy, on the Bobby, and Jim- voice she identified as whom 3. The Evidence the Search apartment, provided key link between testimony Petrosino’s that “Foley” provid- during The evidence seized the warrant- him money ed with conspiracy for the and ultimately less search and admitted into government’s theory that Salimonu (l)the evidence Foley Shomuga includes conspiracy’s was the organizer.18 Al- (2)mul records, phone card and travel though the majority minimizes this evi- tiple phone cellular records. The former dence, “ha[vej claiming that it did not Angela led the to Nash who significance case,” government’s it testified that Laddie get had asked her to clearly enhanced credibility. Petrosino’s phone cellular in her name for his use. States, Angela Wong testimony Sun v. United Nash’s also estab- 471, 485-86, lished a foundation 9 L.Ed.2d 441 for admission of the phone cellular (noting exclusionary records which were in rule her which, name but applies according gained during evidence a search her testimo- ny, reflected as a direct result of a Salimonu’s use of the cellular applies search and phone. evidence). Although physical other evidence as well as estab- verbal lished that Salimonu jury Perry The knew could have used the Angela Nash McKinnon, the cellular pro- records guilty to ascribe motives to Sali- vided a documentary basis for deceptive arguing monu’s acquisition of a cellular Perry and truthfully McKinnon had phone using a de- non-conspirator’s identity. scribed their involvement with Salimonu in only Nash was the non-conspirator fact drug trafficking. Perry’s testify appointment witness to suspicious to such activi multiple book had Salimonu, references ty part on the to Salimonu gov and the with an “HC” next to Perry them. himself argued ernment her disinterested- credibili testified that these were ty jury. references appointments. haircut Fifty-seven phone Foley Shomuga evidence corrobo- calls, however, from Perry, Salimonu to rated testimony. Petrosino’s Petrosino and another fourteen to the motels where “Foley” given testified that him cash staying McKinnon was Perry, altered and, to buy plane date, ticket at a later evidentiary landscape significantly, and true, cash trip. for his It is majori- as the substantially Perry’s corroborated notes, ty prosecution had also McKinnon’s account of their relationship discovered independently of the search and with Salimonu. placed had into evidence a. letter from government emphasized signifi- Salimonu to a former the landlord in Atlanta phone cance of the by records establishing preparing that person Salimonu knew a poster-size enlargements of Foley. named But the summaries of phone card seized jurors them that so the give from could them apartment Salimonu’s and admitted ' Then, extra attention. in argument its put into evidence in Foley jury, the government the apartment continuously Chicago in and also allowed the urged jury the rely phone on the subpoena rec- Shomuga’s travel ords as evidence of conspiracy the records agent. Salimonu’s travel credibility corroboration of the search, gov- Until the of the warrantless police the ernment’s witnesses: records, had no Foley. surname for Those which Foley’s revealed travel between Chi- We know that [Salimonu convinced (a cago and Atlanta city in which Angela other get Nash to him a phone in her evidence showed Salimonu had shared an a couple ways. that, name] of We know apartment Foley), with along that, the Fo- number you. she told We know ley Shomuga phone card in Salimonu’s number because the contract for that jury 18. The did not theory have to find that Salimo- by prosecution was advanced dur- nu conspiracy leader of the ing presentation in order argu- evidence and However, guilty. to find him leadership this jury. ments to the Perry for? I want to confirm apartment. ing in his Re- Chris was found phone But my haircut for six weeks from now. September that? The search member you again I’ll call an hour. But let’s contract the service of 1993 revealed just make sure we know. 57 times? tele- Angela name Nash for Holy away. Moses. Get phone, 3152877. case, in this ladies And as exhibits multiple pros- These exhortations 90, 91, and as Exhibits gentlemen, jury rely ecutor that should on the phone have the charts.

you’re going to government’s records reflect phone of the Cellular One They are summaries corroborating the testimo- awareness Look at them. telephone records. critical ny co-conspirators of the to its ^[******] case. All of the main witnesses in the McKinnon, Perry, and Petrosino-— records, you can [phone] have the case— You plea bargained exchange for their show, they But what do analyze them. credibility and had other issues. They show-—I gentlemen? ladies and Although jury could believe them with- here —some 57 get can the numbers corroborative evidence obtained out the phone from the cell telephone calls through apart- the search of Salimonu’s name Angela had in Nash’s [Salimonu] ment, significantly that evidence enhanced Perry in that one six- Christopher credibility co-conspirators. period. week government repeatedly empha- Hence the that, they But than corroborate more importance sized the records they Perry, and corroborate Christopher jury closing arguments. in its McKinnon, they show seven Kim because Kim Day’s Inn where McKin- calls to the inescapable It fact that force “[t]he is fed, housed and being non was argument can enhance prosecutor’s Kitchenette show some seven calls of false or inad immeasurably impact ... Hotel where she moved Borg, missible evidence.” Brown ^[******] (9th Cir.1991). That en pher Perry And then where does corroborating Christopher acy of Chris Salimonu] Cellular One Nash, who in turn corroborates Christo- What we have now ^[******] tentacles reach? It reaches ... Perry [wrongly implicating go corroborating Angela into the Cellular One great conspir- Cellular Perry and into the— One borative evidence verdict. therefore hancement is nu’s from the unconstitutional search remand doubts sonable prosecution apartment from the for a new doubt I cannot conclude would particularly uses did not affect the trial. vacate that verdict and government’s to remove reasonable illegally seized corro the evidence significant when beyond of Salimo- case. gained jury’s rea I They Telephone Company. reach out Nash.

Angela * * * *

*

Now, try might, [defense hard as he cover-up can’t the evidence

counsel] you Do guilt. [Salimonu’s]

does show telephone the 57 calls

remember Perry, to his mother or to either

Chris the' ones beeper, and then additional Day’s Inn and the Kitchenette you think Laddie’s call-

Hotel? What do notes along phone with a notation that stated: “Porta con testimony regarding taped Monday wait for call from Laddie ble versations. We review the district court’s all Tuesday, 12 hours difference.” Given testimony expert to exclude for decision given insignificance this evidence and See General Elec. Co. abuse of discretion. totality phone records of Joiner, 136, 138-39, case, we are convinced government’s (1997). 139 L.Ed.2d 508 district jury’s to the the records did not contribute pursu court’s decision to exclude evidence verdict. ant Fed.R.Evid. 403 is also reviewed for discretion, “great deference abuse sugges- response government’s In judgment.” court’s United harmless, to the district error was Salimo- tion (1st Currier, 836 F.2d not States argues phone nu that the records were Cir.1987). only circumstantial evidence of the con- imonu, Despite that "The that "McKin- the dissent’s statement the dissent contends derived non's and Petrosino’s largely call Petrosino and Salimonu was not them,” Perry from what told inculpatory,” the conversation did tend to per- and Petrosino had limited "McKinnon was involved in some show that Salimonu with Salimonu.” The dissent sonal contact Perry. with Petrosino and kind of business McKinnon, instance, for overstates case. Salimonu, beeped Petrosino and Salimonu in which testified that on one of the occasions back, asking "Ralph” and iden- called him person, gave Salimonu in he her she met money tifying "Laddie.” Petrosino told himself as and instructed her on how to obtain calling he was "back him that he was because Furthermore, passport. McKinnon and both couple days” and was "broke.” Salimo- speaking testified to on Petrosino with Salimonu numerous times while abroad. Indeed, nu stated that he "didn't know” but would right "call back.” Then Salimonu [him] during testified that two of Petrosino asked, you "Have talked to Chris?” Accord- conversations, de- these Salimonu discussed Petrosino, ing "Chris” referred to Christo- delivery the suitcase in tails related to the Perry. pher Jakarta.

Notes

notes of coerced him into continuing participation the testimony of co-conspirators and through threats and intimidation. states that co-conspirators “[t]he three tes- tified detail as to leadership Although McKinnon likewise had rela- role declaring that conspiracy, Sali- tively little face-to-face interaction with lot, McKinnon Perry and airport parking course Salimonu, during testifying under visual surveil- (although met him were alone conspiracy she alleged of times, lance) testify to more she did with a chance to communicate. three or four with Sali- interaction significant personal had described. Petrosino monu than Tapes 2. The Phone Conversations that she met Salimonu testified McKinnon begun recruiting shortly Perry after into evi- prosecution introduced around in a car with that she rode her and in- taped phone dence five conversations hour, an when Perry and Salimonu Salimonu, one of which involved volving make a that she could told her Salimonu of which involved Petrosino and four her repeatedly assured money lot of (A tape McKinnon. sixth involved McKin- alright.” “everything going to be Perry.) Petrosino and McKinnon non McKinnon when Perry who told But it was cooperating arrest and with were under travel, McKinnon her gave she was to the U.S. Customs time ticket, McKinnon plane provided call of the calls. The between Petro- each paid for money trip, for the spending inculpatory. sino and was not Salimonu Although McKinnon tes- her hotel rooms. attempted into Petrosino to draw Salimonu understanding that it her tified that was conspiracy about the but a conversation all reimbursing Perry for Salimonu simply responded with confusion. Perry spend further- money she saw undisputed It that Petrosino had never that im- got she conspiracy, ance of the con- furtherance called Perry told her. mostly from what pression agents had to spiracy; the U.S. Customs stand, admitted McKinnon the witness On with a number for provide Petrosino investigators customs had told the she only Petrosino knew Salimonu because (in words, story her entirely different Perry throughout how to contact

Case Details

Case Name: United States v. Salimonu

Court Name: Court of Appeals for the First Circuit

Date Published: Jul 7, 1999

Citation: 182 F.3d 63

Docket Number: 97-1557

Court Abbreviation: 1st Cir.