U.S.A. v. Charles

• Decision Date: 09 December 1999
• Docket Number: Nos. 98-2046,98-2180,s. 98-2046
• Citation: 213 F.3d 10
• Parties: (1st Cir. 2000) UNITED STATES, Appellee, v. JOSEPH A. CHARLES, a/k/a SHIZ, Defendant, Appellant. UNITED STATES, Appellee, v. ELIZABETH AHART, Defendant, Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 10

213 F.3d 10 (1st Cir. 2000)

UNITED STATES, Appellee, v. JOSEPH A. CHARLES, a/k/a SHIZ, Defendant, Appellant.

UNITED STATES, Appellee, v. ELIZABETH AHART, Defendant, Appellant.

Nos. 98-2046, 98-2180

United States Court of Appeals For the First Circuit

Heard December 9, 1999

Decided May 24, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Kevin Reddington for appellant Joseph A. Charles and Frances L. Robinson, by appointment of the Court, for appellant Elizabeth Ahart, were on consolidated brief.

Thomas C. Frongillo, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, Dickens Mathieu, Assistant United States Attorney, and Geline W. Williams, Special Assistant United States Attorney, Plymouth County District Attorney's Office, were on brief, for appellee.

Before: Torruella, Chief Judge, Cyr, Senior Circuit Judge, and Stahl, Circuit Judge.

TORRUELLA, Chief Judge.

On April 24, 1997, a federal grand jury returned a three-count indictment charging Joseph A. Charles, Elizabeth Ahart, and Reynard Mason with violations of various federal narcotics and firearms laws. After unsuccessfully litigating a motion to suppress all evidence arising out of a wiretap authorized by a Massachusetts court, see United States v. Charles, No. 97-10107-PBS, 1998 WL 204696 (D. Mass. Jan. 13, 1998), Ahart and Charles entered conditional pleas of guilty. On July 17, 1998, after holding an evidentiary hearing to determine the nature of the narcotics, the district court sentenced Ahart and Charles to 168 months of imprisonment. This appeal followed.¹

For the reasons stated below, we affirm.

BACKGROUND

The district court aptly summarized the facts in this case. See id. at 1-5. We see no need to duplicate that effort. Accordingly, we reiterate the district court's findings of fact largely verbatim.

I. State Criminal Investigation and Proceedings

A. An Overview

From 1992 through 1995, the Massachusetts State Police conducted an investigation of individuals based in the City of Brockton who were suspected of engaging in the distribution of large quantities of crack cocaine. On July 24, 1995, the police initiated a state-court-authorized wiretap on the telephone located at 21 Field Street, a single family home in Brockton where defendants Charles and Mason were residing. A week-long wiretap investigation yielded over 800 interceptions, the majority of which pertained to the purchase and distribution of crack cocaine. As a result of information gleaned from the wiretap, state police executed consecutive search warrants at 21 Field Street and 26 Allen Street, the Brockton apartment of defendant Ahart. From the latter search, the police seized approximately 221 grams of cocaine base, drug paraphernalia, an Uzi rifle, ammunition, and $1,576 in U.S. currency. In August of 1995, a state grand jury indicted Charles, Ahart, and Mason on various state drug and firearm offenses.

B. Wiretap Warrant and Order

On July 18, 1995, the Plymouth County District Attorney's Office secured authorization from an associate justice of the Superior Court (Cowin, J.) to intercept communications into and out of 21 Field Street. The application for the wiretap warrant was submitted with a fifty-page affidavit of State Trooper Anthony Thomas, which formed the basis of the court's probable cause determination that narcotics transactions were being conducted by way of the telephone line into the home.

In addition to the named targets of the investigation, the application sought permission to intercept the calls of defendant Charles's attorney, John W. Kelley, though nothing in the accompanying affidavit suggested that Kelley was suspected of criminal activity. According to Trooper Thomas, he told Judge Cowin that the application was unusual in that it sought to intercept phone calls between Charles and Kelley in order to determine whether the conversations were privileged.

The July 18 court order as initially drafted contained a Minimization Notice which prohibited the interception of "privileged communications." In accordance with the wiretap application, however, it also provided that if any conversations with John W. Kelley of Brockton were intercepted, the police could listen for 30 seconds to determine whether the contents were privileged; if the wiretap monitor on duty determined that the communications were not privileged, the interception would be allowed to continue "an additional 30 seconds, unless and until the conversations become privileged," at which time the monitoring would cease.

On July 21, three days after issuing the order, the state judge sua sponte amended her order. The "Amended Minimization Notice" eliminated the 30-second window that allowed the police lead time to determine whether the content of a phone call was privileged and specifically prohibited the interception of communications with Attorney Kelley. The order read as follows:

The officers executing this warrant shall not intercept any conversations between persons at the target telephone and incoming callers whom the officers know, or have reason to believe, have an attorney-client relationship with the person to whom they are speaking. This order shall include any telephone conversations between Attorney John W. Kelley of Brockton and Joseph A. Charles, if the intercepting officers know or have reason to believe the speaker is the said Attorney Kelley. There shall be no interception of outgoing telephone calls to . . . the office number of Attorney John W. Kelley . . . .

The amended order contained no information regarding Kelley's residential telephone.

C. Intercepted Phone Calls

The wiretap ran from July 24, 1995 to July 30, 1995. At issue in this appeal are the events of July 29. Trooper Paul Petrino was the sole officer on monitoring duty in the State Police Middleboro barracks from midnight on Friday, July 29 until 8 A.M. the following morning. Petrino had experience in monitoring wiretaps and in narcotics investigations generally, but had not played any part in the Charles investigation prior to July 28, 1995.² Instead, he had been assigned to a highly publicized and intense investigation involving the murder of a state trooper.

As required of all monitoring officers, Petrino signed the minimization order on July 25, 1995, when he was first assigned monitoring duties in this case. He did not, however, re-sign or review the order prior to July 28 or July 29, when he actually began working on this case. Prior to his monitoring assignment, Petrino had never discussed the particulars of the Charles investigation with Trooper Thomas, the officer in charge of the wiretap; nor did he have any knowledge of any role Attorney Kelley played in the investigation, including any suspicions harbored by Thomas of Kelley's involvement. Specifically, Petrino had no knowledge that Kelley had been included in the original minimization order and was later removed by amendment; and he had no recollection of ever having met or spoken with Kelley.³

At the evidentiary hearing, Trooper Petrino explained the process of how calls were monitored from the Middleboro listening post in some detail. For each call made to and from the 21 Field Street telephone line, the monitoring equipment would display the number that was dialed and begin recording. Upon a determination that a call was non-privileged, monitors would enter information into a computer identifying the parties, nature, and substance of each call in order to create a log of all interceptions. Upon a determination that a call was a privileged communication, monitors were instructed to minimize the call by turning the tape off, signified in the log by the notation "TTO" (Turn Tape Off). In the event that a series of calls were made in rapid succession, or when the noise of the pen register made it difficult to hear the conversations, monitors were instructed to jot down the gist of each of the calls in handwritten notes and later play back the tapes to make complete entries into the log. Monitors were also instructed to contact Trooper Thomas directly upon intercepting any incriminating phone calls.⁴ While two monitors were ordinarily assigned to the listening post on any given shift throughout the course of the wiretap, Petrino served as the lone monitor during his eight-hour shift on July 29 because all other law enforcement personnel were needed to execute the search warrant that was anticipated for that night.

Within the first two hours of his shift, between 1:20 and 1:55 A.M., Petrino intercepted seven calls in quick succession; these calls mainly involved Mason reassuring callers that Charles would soon be returning home from a short trip to New York City. This period was followed by a fifty minute break without any incoming or outgoing calls. From approximately 2:46 A.M., upon returning home from his trip, Charles made a series of six calls within eight minutes. During the first of this series, Petrino's entries in the log reflect Charles reporting to an unidentified male, "it was a good night got 6 keys," inquiring "how much to bring," and instructing him to call his "boy" and have him bring "12 g's." This series of calls and the previous series had been in such rapid succession that Petrino had to play back the tapes to make his log entries. Petrino immediately paged Thomas and informed him of the incriminating interception.

At approximately 3:12 A.M., the police entry team executed a search warrant at 21 Field Street. Expecting to find the cocaine referred to in the intercepted calls, the police found no drugs at all, recovering only a handgun and $4,500 in cash from a car registered to defendant Ahart. Charles was not arrested and the police left the premises just before 5:00 A.M. Because it was a dry run, Thomas told Petrino that the phones were likely to be active. The primary objective was to identify the location of the narcotics.

Immediately...