U.S. v. Lee

Citation359 F.3d 194
Decision Date20 February 2004
Docket NumberNo. 01-1629.,01-1629.
PartiesUNITED STATES of America v. Robert W. LEE, Sr., Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Gerald Krovatin (argued), Krovatin & Associates, for Appellant.

George S. Leone, Chief, Appeals Division, Michael Martinez (argued), Assistant U.S. Attorney, U.S. Department of Justice, Newark, for Appellee.

Before SCIRICA, Chief Judge, and ALITO, and McKEE, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge.

This is an appeal by defendant Robert W. Lee, Sr. ("Lee") from a judgment in a criminal case. Lee was indicted on charges stemming from the alleged payment of bribes by boxing promoters to Lee and other officials of the International Boxing Federation ("IBF"). After a jury trial, Lee was convicted of one count of conspiracy to engage in money laundering, in violation of 18 U.S.C. § 1956(h); three counts of interstate travel in aid of racketeering, in violation of 18 U.S.C. § 1952 (the "Travel Act") and 18 U.S.C. § 2; and two counts of filing false tax returns, in violation of 26 U.S.C. § 7206. He was sentenced to a concurrent term of 22 months' imprisonment on each count and was fined $25,000.

In this appeal, Lee argues (1) that video tapes that show him receiving money from a confidential government informant violated his Fourth Amendment rights and should have been suppressed, (2) that the District Court misinstructed the jury concerning the meaning of the "duty of fidelity" under the New Jersey commercial bribery statute, N.J.S.A. 2C:21-10, (3) that his Travel Act and money laundering conspiracy convictions must be reversed because they are predicated upon the New Jersey commercial bribery statute, and there is an insufficient nexus between his conduct and New Jersey to permit the application of the New Jersey statute, (4) that his money laundering conviction should be reversed because the evidence at trial did not prove the existence of a single conspiracy, (5) that two of the Travel Act counts were impermissibly amended at trial, and (6) that the District Court erred when it imposed concurrent sentences of 22 months' imprisonment on the tax counts. We affirm.

I.

Lee was a cofounder and president of the IBF, an organization that crowns international boxing champions and publishes ratings of boxers within different weight divisions. The ratings are published monthly from the IBF headquarters in East Orange, New Jersey. The primary function of the ratings is to determine which boxers will fight in upcoming IBF championship bouts. During the period relevant to this appeal, Lee served on the IBF Executive Board and various IBF committees, including the championship committee, chaired by Don "Bill" Brennan, and the ratings committee, chaired by C. Douglas Beavers.

In May 1996, the Federal Bureau of Investigation received information that boxing promoters were paying certain IBF officials in order to receive more favorable IBF ratings for their boxers. Beavers was questioned and, in May of 1997, chose to cooperate with the FBI. He told investigators that he had solicited and received bribes from boxing promoters and that these bribes had been divided equally among himself, Brennan, Lee, and Lee's son, Robert W. Lee, Jr. ("Lee, Jr."). Beavers, who is based in Portsmouth, Virginia, further testified that he had held regular telephone conversations with Lee, who works out of the IBF headquarters in East Orange, regarding strategies for maximizing payment amounts, methods for laundering bribes that were received as checks,1 and arrangements for Lee to travel from New Jersey to Virginia to collect his share of the bribes.

With Beavers' cooperation, the FBI made audio and video recordings of three meetings between Beavers and Lee that took place in Portsmouth, Virginia, on June 9, 1997, December, 18, 1997 and October 21, 1998. The meetings were held in a hotel suite rented by Beavers for Lee in the Portsmouth Holiday Inn and were electronically monitored and recorded using equipment installed in the living room of the suite by the FBI prior to Lee's arrival. This equipment consisted of a concealed camera and microphone that transmitted video and audio signals to a monitor and recorder located in an adjacent room. The FBI did not obtain a warrant authorizing the installation or use of the equipment but instead relied on Beavers' consent. The government agents located in the room next to Lee's suite were instructed to monitor activity in the corridor to determine whether or not Beavers had entered Lee's rooms. The agents were further instructed to switch on the monitor and recorder only when Beavers was in the suite and that, at all other times, the monitor and recorder were to be switched off. During the December 1997 meeting, Beavers was recorded handing Lee cash that had originated as a bribe paid to the IBF's South American representative, Francisco "Pancho" Fernandez, by a Colombian boxing promoter, Billy Chams.

On November 4, 1999, a federal grand jury in the District of New Jersey indicted Lee, Lee, Jr., Brennan and Fernandez on 35 counts related to the receipt of bribes from boxing promoters. As noted, Lee Sr. was convicted on six counts but acquitted on the rest. Lee, Jr. was acquitted on all counts. The case against Brennan was dismissed because of his ill health and age, and Fernandez remains a fugitive outside the United States.

II.
A.

Lee challenges the District Court's admission into evidence of tapes of meetings in his hotel suite. Lee contends that the monitoring and recording of these meetings violated his Fourth Amendment rights because the government did not obtain a warrant. Lee's argument, however, is inconsistent with well-established Fourth Amendment precedent concerning the electronic monitoring of conversations with the consent of a participant.

In Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), a confidential government informant named Partin met with the defendant in the defendant's hotel suite and elsewhere and testified about those conversations at trial. The defendant argued that Partin had conducted an illegal search for verbal evidence and that, because the defendant was unaware of Partin's role as an informant, the defendant had not validly consented to his entry into the suite. Id. at 300, 87 S.Ct. 408. The Supreme Court rejected this argument, holding that the defendant had "no interest legitimately protected by the Fourth Amendment." Id. at 301-02, 87 S.Ct. 408. The Court concluded that the Fourth Amendment does not protect "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Id. at 302, 87 S.Ct. 408.

Although Hoffa involved testimony about conversations and not electronic recordings of conversations, the Supreme Court in later cases drew no distinction between the two situations. See United States v. Caceres, 440 U.S. 741, 744, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (plurality). As the Court in Caceres put it,

Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. Hoffa v. United States, 385 U.S., at 300-303, 87 S.Ct. 408. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency....

440 U.S. at 750-51, 99 S.Ct. 1465 (quoting United States v. White, 401 U.S. 745, 749, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971)) (citation omitted). The Court added that it had "repudiated any suggestion that [a] defendant had a `constitutional right to rely on possible flaws in the agent's memory, or to challenge the agent's credibility without being beset by corroborating evidence that is not susceptible of impeachment.'" Id. at 750, 91 S.Ct. 1122 (quoting Lopez v. United States, 373 U.S. 427, 439, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963)). In short, the Court adopted the principle that, if a person consents to the presence at a meeting of another person who is willing to reveal what occurred, the Fourth Amendment permits the government to obtain and use the best available proof of what the latter person could have testified about. This principle appears to doom Lee's argument here.

Lee argues, however, that neither the Supreme Court nor our court has extended this principle to the circumstances present in this case. He points to three factors: (1) the agents used video rather than audio equipment; (2) the recording occurred in Lee's hotel room, a place where a person has a heightened expectation of privacy; and (3) the monitoring equipment remained in the room when Beavers was not present.

In making this argument, Lee relies on the First Circuit's decision in United States v. Padilla, 520 F.2d 526, 527-28 (1st Cir.1975), which held that the defendant's Fourth Amendment rights were violated when agents placed an audio recording device in the defendant's hotel room and recorded conversations between the defendant and another person who consented to the recordings. In reaching this conclusion, the First Circuit expressed concern that if law enforcement officers were permitted to leave a monitoring or recording device in a hotel for a lengthy period of time the officers would be tempted to monitor or record conversations that occurred when no consenting...

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