U.S. v. Barona, Nos. 90-50519

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: WALLACE; Act Sec.; TANNER; REINHARDT; Reinhardt
• Citation: 56 F.3d 1087
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maria Cecilia BARONA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Janet MARTINEZ, aka: Luz Janet Martinez & Luz Janeth Martinez, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Brian BENNETT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mario ERNESTO Villabona-Alvarado, a/k/a Tico, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Dubarry McCARVER, a/k/a Mike Bald, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael HARRIS, a/k/a Tall Make, Defendant-Appellant.
• Decision Date: 05 June 1995
• Docket Number: 90-50536,Nos. 90-50519,90-50687,90-50686,90-50691 and 90-50694

Page 1087

56 F.3d 1087 63 USLW 2792 UNITED STATES of America, Plaintiff-Appellee,
v.
Maria Cecilia BARONA, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Janet MARTINEZ, aka: Luz Janet Martinez & Luz Janeth
Martinez, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Brian BENNETT, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Mario ERNESTO Villabona-Alvarado, a/k/a Tico, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Dubarry McCARVER, a/k/a Mike Bald, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael HARRIS, a/k/a Tall Make, Defendant-Appellant. Nos. 90-50519, 90-50536, 90-50686, 90-50687, 90-50691 and 90-50694. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Oct. 5, 1994.
Decided June 5, 1995.

Page 1089

Michael D. Abzug, Los Angeles, CA, for defendant-appellant Barona.

Marlene Gerdts, Beverly Hills, CA, for defendant-appellant Martinez.

David E. Kenner, Encino, CA, Alvin E. Entin, Entin, Schwartz & Margules, Miami, FL, for defendants-appellants Bennett and Harris.

Donald M. Re, Los Angeles, CA, for defendant-appellant Villabona-Alvarado.

Henry F. Reynolds, Santa Monica, CA, for defendant-appellant McCarver.

Dean G. Dunlavey, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeals from the United States District Court for the Central District of California.

Before: WALLACE, Chief Judge, REINHARDT, Circuit Judge, and TANNER, ^* District Judge.

Opinion by Chief Judge WALLACE; Concurrence by Judge TANNER; Dissent by Judge REINHARDT.

WALLACE, Chief Judge:

Following extensive investigation, including wiretaps in foreign countries, the appellants were indicted and convicted of drug-related crimes. The district court had jurisdiction under 18 U.S.C. Sec. 3231. We have jurisdiction over this timely appeal pursuant to 18 U.S.C. Sec. 3742(a) and 28 U.S.C. Sec. 1291. We affirm in part, reverse in part, and remand.

I

The issues we discuss arose in the context of a criminal prosecution of six individuals for an ongoing conspiracy to distribute cocaine. Mario Ernesto Villabona-Alvarado (Villabona) and Brian Bennett organized and supervised the operation. Cocaine from Colombia entered the United States through a source named "Oscar." The cocaine was then delivered by Maria Barona and Luz Janneth Martinez to Michael McCarver and Michael Harris for further distribution.

Several events led to the identification of this conspiracy and its participants. Between 1985 and 1987, the Drug Enforcement Administration (DEA) and the Los Angeles Police Department conducted a money-laundering investigation code-named "Operation Pisces." The result of this investigation was

Page 1090

the arrest of Leonardo Gomez in Villabona's residence. Then in December 1987, Villabona and Bennett traveled to Copenhagen, Denmark, and registered at the Savoy Hotel. On December 7, 1987, Villabona, his wife (Helle Nielsen), and Bennett traveled to Aalborg, Denmark, to stay with Nielsen's parents. While in Aalborg, Villabona placed calls from the Nielsen residence and from a public telephone. On December 8, 1987, Villabona and Bennett returned to Copenhagen and stayed at the Hotel Sara-Dan. From Copenhagen, Villabona and Bennett flew to Milan, Italy, and registered at the Hilton International Hotel on December 9, 1987. In late March 1988, Villabona returned to Aalborg, Denmark, and again used the same public telephone. In each of these locations, the telephone calls made by Villabona were monitored by the Danish (or in one case, Italian) authorities. Tapes of these wiretaps were played for the jury and were relied on at least in part to convict Villabona, Bennett, Martinez, Barona, Harris, and McCarver.

Between March and November 1988, Bennett asked Stanley McCarns to transport 502 kilograms of cocaine from Los Angeles to Detroit and to return with millions of dollars. Stanley McCarns then arranged for Willie Childress and his cousin, James McCarns, to transport the cocaine. Childress and James McCarns were stopped en route on November 6, 1988, and a Missouri state trooper seized the cocaine. On November 11, 1988, domestic wiretaps commenced on two cellular telephones used by Villabona. These taps also resulted in the interception of several incriminating conversations.

A 28-count indictment resulted in the arrests of the six appellants. While we have disposed of the majority of the appellants' claims in an unpublished disposition, see Fed.R.App.P. 36; Ninth Cir.R. 36-1, two issues raised in this appeal require publication. See Ninth Cir.R. 36-2. The first of these issues, of concern to all of the appellants, is whether any or all of the wiretap evidence obtained in Denmark and Italy should have been suppressed. The second issue is whether count 27 charging Villabona and count 28 charging Bennett with running a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848, should be vacated because the jury may have impermissibly found that certain individuals counted as supervisees for purposes of section 848(c)(2)(A).

II

The district court ruled on the motion to suppress the Denmark wiretap evidence as follows:

[T]he Court agrees with the Defense, that other than the Milan Wiretap, that these were wiretaps which were engaged in as a joint venture by the United States and Denmark.... [T]he Court finds that the order issued by the Danish Court was lawful and in accordance with their law.... The Court finds that the United States authorities reasonably relied upon the representations of the Danish officials with respect to the wiretaps, and therefore they were acting--in the Court's opinion--in good faith.

The question of whether the wiretaps were a joint venture requires the district court to "scrutinize the attendant facts." United States v. Rose, 570 F.2d 1358, 1362 (9th Cir.1978) (Rose ), quoting Byars v. United States, 273 U.S. 28, 32, 47 S.Ct. 248, 249, 71 L.Ed. 520 (1927). Therefore, we will not disturb such a finding unless it is clearly erroneous. We review de novo, however, the finding that the wiretaps were conducted in accordance with foreign law, United States v. Peterson, 812 F.2d 486, 490 (9th Cir.1987) (Peterson ), as well as the question of whether United States agents reasonably relied in good faith upon the foreign officials' representations that the wiretaps were legal under foreign law. See United States v. Mendonsa, 989 F.2d 366, 369 (9th Cir.1993) (issue of good faith reliance on domestic search warrant reviewed de novo).

A.

When determining the validity of a foreign wiretap, we start with two general and undisputed propositions. The first is that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-21, "has no extraterritorial force." Peterson, 812 F.2d at 492. Our analysis, then, is guided only by the applicable principles of constitutional

Page 1091

law. The second proposition is that "[n]either our Fourth Amendment nor the judicially created exclusionary rule applies to acts of foreign officials." United States v. LaChapelle, 869 F.2d 488, 489 (9th Cir.1989), quoting United States v. Maher, 645 F.2d 780, 782 (9th Cir.1981).

Two "very limited exceptions" apply. Id. One exception, clearly inapplicable here, occurs "if the circumstances of the foreign search and seizure are so extreme that they 'shock the [judicial] conscience,' [so that] a federal appellate court in the exercise of its supervisory powers can require exclusion of the evidence." Id. at 490, quoting Rose, 570 F.2d at 1362 (further citations omitted). This type of exclusion is not based on our Fourth Amendment jurisprudence, but rather on the recognition that we may employ our supervisory powers when absolutely necessary to preserve the integrity of the criminal justice system. The wiretaps at issue cannot be said to shock the conscience. Even when no authorization for a foreign wiretap was secured in violation of the foreign law itself, we have not excluded the evidence under this rationale, Peterson, 812 F.2d at 491, nor should we. Here, the foreign courts were involved and purported to authorize the wiretaps. The conduct here, therefore, does not come close to requiring the invocation of this exception.

The second exception to the inapplicability of the exclusionary rule applies when "United States agents' participation in the investigation is so substantial that the action is a joint venture between United States and foreign officials." Id. at 490. If a joint venture is found to have existed, "the law of the foreign country must be consulted at the outset as part of the determination whether or not the search was reasonable." Id. ¹ If foreign law was not complied with,

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"the good faith exception to the exclusionary rule becomes part of the analysis." Id. at 492. "The good faith exception is grounded in the realization that the exclusionary rule does not function as a deterrent in cases in which the law enforcement officers acted on a reasonable belief that their conduct was legal." Id.

It is this exception that the appellants invoke, asking us to conclude (1) that the United States and foreign officials were engaged in a joint venture, (2) that a violation of foreign law occurred making the search unreasonable, and (3) that the United States did not rely in good faith upon the foreign officials' representations that their law was being complied with.

B.

Because this exception is based solely on the Fourth Amendment, the appellants must first show that they are among the class of persons that the Fourth Amendment was meant to protect. In this case, three appellants, Martinez, Barona, and Villabona, are not United States citizens.

The Supreme Court has said, with regard to foreign searches involving aliens with "no voluntary connection" to the United States, that the Fourth Amendment is simply inapplicable. See United States v....