U.S. v. Lnu

Citation575 F.3d 298
Decision Date29 July 2009
Docket NumberNo. 05-5042.,05-5042.
PartiesUNITED STATES of America v. Art LNU, a/k/a Wizard, a/k/a Artie, a/k/a Art Ramirez Arturo Ramirez, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Lawrence S. Krasner, Esq. (Argued), Krasner Law Offices, Philadelphia, PA, for Appellant.

Ewald Zittlau (Argued), Assistant United States Attorney, Philadelphia, PA, for Appellee.

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

OPINION

SMITH, Circuit Judge.

Appellant Arturo Ramirez was convicted of various charges stemming from his participation in a conspiracy to distribute large quantities of cocaine. On appeal, Ramirez raises two questions that this Court has not yet addressed: 1) whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522, bars the in-trial use of testimony and materials sourced from an unsealed set of wiretap recordings, which are identical to a properly sealed set; and 2) whether the failure to broadcast audiotape evidence through a public courtroom speaker as it is being played through headphones for the trial participants denies a defendant his Sixth Amendment right to a public trial.1 We answer both inquiries in the negative, and will affirm the judgment of the District Court.

I.

In November and December of 2002, the Pennsylvania Superior Court authorized two wiretaps on mobile telephones used by Steven Carnivale. Pursuant to these wiretaps, authorities simultaneously recorded Carnivale's telephone conversations on three separate tape recorders. This resulted in three identical sets of tapes. One set was judicially sealed (the "Sealed Set") and stored. The other two sets were left unsealed (the "Unsealed Sets") and were used for investigative and trial preparation purposes.

The contents of the intercepted telephone conversations implicated Ramirez in a conspiracy to distribute more than five kilograms of cocaine. On January 7, 2003, a federal grand jury indicted Ramirez on seven criminal counts related to his alleged participation in this conspiracy: conspiring to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846; attempted distribution of more than 500 grams of cocaine, and aiding and abetting, in violation of 21 U.S.C. §§ 841 and 846, and 18 U.S.C. § 2; four counts of unlawful use of a communication facility, in violation of 21 U.S.C. § 843(b); and distribution of more than five kilograms of cocaine, and aiding and abetting, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2.

Before trial, the Government notified Ramirez that it intended to introduce audiotape copies of the wiretap recordings as trial evidence and to provide jurors with transcripts of the recorded conversations that they could use as an aid to their understanding of those conversations as the tapes were played. The Government used the Unsealed Set to create both the copies and the transcripts. Ramirez filed a motion to suppress. In his motion, Ramirez argued that since the copies and transcripts were not derived from the Sealed Set, they did not meet Title III's sealing requirements and could not be used at trial. After conducting an evidentiary hearing on the matter, the District Court denied Ramirez's motion.

On January 8, 2004, Ramirez was jointly tried with three co-defendants. At trial, the District Court admitted the audiotape copies into evidence over Ramirez's renewed objections. The District Court also made the transcripts of those audiotapes a part of the record so that they were available to the public.

On the morning of January 14, 2004, the Government played seven recorded conversations that implicated Ramirez in the conspiracy, and elicited testimony from Carnivale about those conversations. Presentation of this evidence took approximately one hour. All the trial participants—the judge, jury, attorneys for all parties, Carnivale, and Ramirez—used headphones to listen to the recordings that the Government played. The jurors also had transcripts of the recordings in their possession. Without notifying the Court or Ramirez, however, the Government turned off the public loudspeaker that would have broadcasted the recordings into the courtroom. As a result, any members of the public who attended the trial that morning were unable to hear the recordings as they were being played for the trial participants.2

During the Court's lunch recess, Ramirez learned that the recordings played in the morning were not simultaneously broadcasted into the courtroom. Once the Court reconvened, Ramirez's counsel notified the Court of this fact and moved for a mistrial or, in the alternative, to strike the testimony elicited based on the recordings. Ramirez argued that the failure to broadcast the conversations over the public loudspeaker violated his constitutional right to a public trial. In response, the Government stated that it had intentionally chosen not to play the tapes over the loudspeaker to ensure that inadmissible portions of the tapes were not accidentally heard.

The District Court remarked that the Government's explanation seemed "[dis]ingenuous." The Court pointed out that the Government could have avoided any accidents by simply stopping the tapes before reaching any inadmissible portions. Nonetheless, the Court denied Ramirez's motion for a mistrial or to strike. The Court held that Ramirez had waived the issue by failing to raise it earlier. It also concluded that Ramirez had not been prejudiced by the Government's actions. The Court, however, ordered that the remainder of the recorded conversations played for the jury should be broadcasted simultaneously over the public loudspeaker.

After the Court's ruling, the Government played thirty-six additional wiretap recordings, twenty of which were conversations between Ramirez and Carnivale. Each of the thirty-six recordings were broadcasted over the public loudspeaker as they were played for the jury.

At the conclusion of the two-week trial, the jury found Ramirez guilty of all charges. Since Ramirez had one prior conviction for a felony drug offense, he was subjected to a mandatory minimum term of imprisonment of twenty years pursuant to 21 U.S.C. § 841(b)(1)(A). After conducting a hearing, the Court sentenced Ramirez to twenty years of imprisonment, ten years of supervised release, a $2,000 fine, and a special assessment of $700. Ramirez filed a timely appeal.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Ramirez has raised purely legal issues of statutory and constitutional interpretation, so our review is plenary. United States v. Coleman, 451 F.3d 154, 156 (3d Cir.2006).

II.

Ramirez's first claim of error is that the District Court improperly allowed the Government to present wiretap evidence at trial, in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522. Ramirez argues that Title III prohibits the Government from 1) introducing the audiotape copies of unsealed wiretap recordings into evidence, 2) using transcripts of those recordings at trial, and 3) eliciting trial testimony about the contents of those recordings.

The contents of intercepted wiretaps or any evidence derived therefrom cannot be used at trial if the disclosure of those contents would be in violation of Title III. See 18 U.S.C. § 2515; United States v. Chavez, 416 U.S. 562, 570, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974) ("Section 2515 provides that the contents of any intercepted wire or oral communication, and any derivative evidence, may not be used at a criminal trial, or in certain other proceedings, `if the disclosure of that information would be in violation of this chapter.'" (quoting 18 U.S.C. § 2515)). Section 2517(3) authorizes the disclosure of the contents of wiretaps and any derivative evidence at trial:

Any person who has received, by any means authorized by this chapter, any information concerning a wire, oral, or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof....

18 U.S.C. § 2517(3). Section 2518(8)(a) sets forth preservation and sealing procedures for intercepted wire communications, and makes judicial sealing a prerequisite for trial use and disclosure pursuant to Section 2517(3):

The contents of any wire, oral, or electronic communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (1) and (2) of section 2517 of this chapter for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517.

18 U.S.C. § 2518(8)(a).

Here, the Government used the Unsealed Sets to produce the wiretap evidence that it...

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