940 F.2d 722 (1st Cir. 1991), 89-1807, United States v. David

Docket Nº:89-1807 to 89-1809, 89-2110.
Citation:940 F.2d 722
Party Name:UNITED STATES of America, Appellee, v. Shmuel DAVID, Defendant, Appellant. UNITED STATES of America, Appellee, v. Jaime Toro ARISTIZIBAL, Defendant, Appellant. UNITED STATES of America, Appellee, v. Amparo Toro ARISTIZIBAL, Defendant, Appellant. UNITED STATES of America, Appellee, v. Yehuda YARDEN, Defendant, Appellant.
Case Date:July 29, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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940 F.2d 722 (1st Cir. 1991)

UNITED STATES of America, Appellee,

v.

Shmuel DAVID, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Jaime Toro ARISTIZIBAL, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Amparo Toro ARISTIZIBAL, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Yehuda YARDEN, Defendant, Appellant.

Nos. 89-1807 to 89-1809, 89-2110.

United States Court of Appeals, First Circuit

July 29, 1991

Heard April 4, 1991.

Rehearing and Rehearing En Banc

Denied Aug. 28, 1991.

Motion for Rehearing Denied

Sept. 27, 1991.

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Wendy Sibbison, Greenfield, Mass., with whom Barry P. Wilson and Zalkind, Sheketoff, Wilson, Homan, Rodriguez & Lunt, were on brief, Boston, Mass., for defendant, appellant Shmuel David.

Dana A. Curhan, New Bedford, Mass., for defendant, appellant Jaime Toro Aristizibal.

Raymond E. Gillespie, Cambridge, Mass., for defendant, appellant Amparo Toro Aristizibal.

Stephen R. Kaplan, Northampton, Mass., for defendant, appellant Yehuda Yarden.

Frank J. Marine, Atty., U.S. Dept. of Justice, Washington, D.C., with whom Wayne A. Budd, U.S. Atty., and Jonathan Chiel and Stephen P. Heymann, Asst. U.S. Attys., were on brief, Boston, Mass., for U.S.

Before CAMPBELL, SELYA and CYR, Circuit Judges.

SELYA, Circuit Judge.

These appeals arise out of the ashes of the long, hard-fought criminal trial of six defendants, Eliahu Abramson, Efraim Natanel, Shmuel David, Yehuda Yarden, Jaime Toro Aristizibal, and Amparo Toro Aristizibal. Abramson was acquitted. Natanel, whose appeal has already been decided, United States v. Natanel, 938 F.2d 302 (1st Cir.1991), was convicted on only one count. The remaining four defendants were convicted on multiple counts. After sifting through the copious record in light of their myriad claims of error, we affirm most of what transpired, but vacate two of David's convictions.

I. BACKGROUND

This case involves a spider web of drug dealing, with David at the web's center. The web was spun over a period of close to two years, engulfing an array of persons and places. A useful way to introduce the various characters and to gain some perspective on this arachnoid adventure is to summarize the superseding indictment.

The indictment named fourteen defendants in twenty-seven counts. Count 1 alleged that David, Yarden, the Toros, Joseph Zalmanovich, and Mordechai Mizrahi engaged in a conspiracy to distribute cocaine, 21 U.S.C. Sec. 846, from not later than August 1986 until about March 1988. 1 Count 2 alleged that twelve defendants, save only the Toros, conspired to possess and distribute cocaine in March and April 1988. The count 1 conspiracy allegedly took place in Massachusetts, Florida, and Belgium; the count 2 conspiracy allegedly took place in the same three venues, plus Ohio and Colombia. Most of the remaining counts represented either substantive charges of possession with intent to distribute, 21 U.S.C. Sec. 841(a)(1), or charges of facilitating drug transactions by using the telephone, in violation of 21 U.S.C. Sec. 843(b). These counts are summarized in the appendix. The linchpin of the indictment was count 17, wherein David was

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charged with engaging in a continuing criminal enterprise (CCE), 21 U.S.C. Sec. 848, from on or before August 1986 through April 28, 1988.

Trial began on March 27, 1989. Verdicts were returned against the appellants on May 31, 1989. David was convicted on twenty-two counts. Jaime Toro was convicted on the count 1 conspiracy and on twelve substantive counts of possession with intent to distribute. His wife, Amparo, was convicted on the count 1 conspiracy. Yarden was convicted of participating in both conspiracies and on a telephone count. After sentencing, these appeals ensued. 2

We eschew an exegetic opening statement, preferring instead to discuss the facts, insofar as necessary to place the issues into workable perspective, in the course of the commentary that follows. We mix and match the asseverations advanced by the several appellants in an effort to sustain a natural progression.

II. SUPPRESSION ISSUES

David argues that the district court erred in denying his motions to suppress evidence obtained from a court-authorized digital display beeper (a so-called beeper clone) and certain court-approved telephone intercepts. 3 We deal with these issues seriatim.

  1. The Beeper Clone.

    David was the proprietor of a beeper corresponding to telephone number (617) 466-0366. On December 4, 1987, the government received authorization from the United States District Court for the District of Massachusetts to intercept communications targeted for this beeper. The authorization was thereafter renewed on several occasions. Judge Woodlock, who allowed the intercept, found probable cause to believe both that David was using the beeper to further criminal activity and that communications sent to the beeper, if made known, would reveal telephone numbers instrumental in arranging narcotics transactions. The interceptions were to be effected via a beeper clone which, rather than intercepting actual conversations, would intercept and display telephone numbers transmitted to the authentic beeper. Federal agents utilized the beeper clone to obtain information leading to evidence against David and others. After indictment, David moved to suppress the investigatory fruits derived from the beeper clone. The trial judge held a hearing, reserved decision, and later denied the motion without stated reasons.

    The interception of electronic communications as an investigative technique is governed by Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. Secs. 2510-2521 (Title III). The statutory scheme provides a mechanism through which the government may seek judicial authorization to surveil electronic communications. Section 2518 of Title III sets out what must be included in an authorization application. One requirement is "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 tried or to be too dangerous." 18 U.S.C. Sec. 2518(1)(c). We have explained that "[t]he basis for the statutory monition is the salutary notion that the sovereign should make a reasonable, good faith effort to run the gamut of normal investigative

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    procedures before resorting to means so intrusive as electronic interception of telephone calls." United States v. Hoffman, 832 F.2d 1299, 1306-07 (1st Cir.1987). David tells us that, in this instance, the Drug Enforcement Administration (DEA) had not run the gamut of reasonable alternative investigative techniques before applying for permission to employ the beeper clone. We are not convinced.

    In these purlieus, appellate review is limited to the question of whether "the issuing court could reasonably have concluded that normal investigatory procedures reasonably appeared to be unlikely to succeed." United States v. Ashley, 876 F.2d 1069, 1074 (1st Cir.1989); see also United States v. Scibelli, 549 F.2d 222, 226 (1st Cir.) (appellate court need only "decide if the facts set forth in the application were minimally adequate to support the determination that was made"), cert. denied, 431 U.S. 960, 97 S.Ct. 2687, 53 L.Ed.2d 278 (1977). This inquiry is not rigid or rule-oriented; to the precise contrary, "Title III demands a practical, commonsense approach to exploration of investigatory avenues and relative intrusiveness." United States v. Uribe, 890 F.2d 554, 556 (1st Cir.1989). Because drug trafficking is inherently difficult to detect and presents formidable problems in pinning down the participants and defining their roles, investigative personnel must be accorded some latitude in choosing their approaches. In short, Title III "was not meant to force the government to run outlandish risks or to exhaust every conceivable alternative" before applying for intercept authorizations. Hoffman, 832 F.2d at 1306.

    In this case, we think the proof supports a finding that conventional approaches were sufficiently milked and, if pressed further, would likely have proven empty. The cynosure of the government's application was an affidavit in which a DEA agent, Doherty, limned the investigative techniques used up to that moment and told why he thought the investigation, absent injection of a beeper clone, had dried up. Doherty described the government's painstaking use of public documents and telephone toll records to obtain information about David and other suspects. He then recounted knowledge gleaned through three confidential informants. The first (CI-1) informed the agent that he often called David's beeper as a prelude to purchasing cocaine. He also stated, based on personal observations of Yossi inspecting and paying for cocaine in Florida, that David was purchasing seven to ten kilograms of cocaine monthly for distribution in Boston. The second informant told the agent that he had bought cocaine from one Jacky Amouyal in front of a restaurant which Amouyal said David owned in part, and that Amouyal referred to a man who was in the restaurant at the time as "Shmuel" (David's first name). The third informant said that he bought cocaine from David on several occasions, contacting him through his beeper. In addition, some two weeks before the affidavit was signed, the agent reported that CI-1 called David's beeper in the agent's presence. David returned the call a few minutes later. A conversation in Hebrew ensued. CI-1 informed Doherty that, in the course of the...

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