U.S. v. Corona-Chavez

• Decision Date: 15 May 2003
• Docket Number: No. 02-2647.,02-2647.
• Citation: 328 F.3d 974
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Emilio CORONA-CHAVEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

328 F.3d 974

UNITED STATES of America, Plaintiff-Appellee, v. Emilio CORONA-CHAVEZ, Defendant-Appellant.

No. 02-2647.

United States Court of Appeals, Eighth Circuit.

Submitted: December 10, 2002.

Filed: May 15, 2003.

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Daniel L. Gerdts, argued, Minneapolis, MN, for appellant.

Joseph T. Dixon, III, AUSA, argued, Minneapolis, MN, for appellee.

Before WOLLMAN, JOHN R. GIBSON, and MELLOY, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Emilio Corona-Chavez¹ appeals his conviction of conspiracy and aiding and abetting an attempt to possess more than 500 grams of a methamphetamine mixture with intent to distribute it, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (2000), and 21 U.S.C. § 2 (2000) (attempt and conspiracy). Corona was caught in a controlled delivery that was monitored by police using video and audio surveillance of the hotel room where the delivery took place. He contends that the district court² erred in denying his motion to suppress the videotape of the transaction and a recording of a telephone call in which he participated. We hold that neither recording was obtained in contravention of Corona's constitutional or statutory rights. Accordingly, we affirm his conviction.

On August 6, 2001, at a highway rest stop in Wyoming, police stopped Maria Munoz, who was driving a Ford Excursion that contained nineteen bags of methamphetamine. Munoz told police that she was supposed to deliver the drugs to a man named Carlos in Minnesota, and she agreed to participate in a controlled delivery of the drugs. At the direction of the police, Munoz called Carlos that evening and told him that her car had broken down in Lincoln, Nebraska, but that she would be in Minnesota as soon as she could. Also at the request of the police, Munoz told Carlos that there was a bad smell in the car. The next day, police loaded Munoz and the Excursion on an airplane and flew them to Minneapolis.

At the direction of the police and in their presence, Munoz called Carlos from her cell phone at about 12:45 in the afternoon. Police recorded the call. Munoz told Carlos that a hose on the car had broken and she had to stay overnight in Lincoln to get it fixed, but that she would be in Minnesota in five or six hours. She complained to him that there was an alcohol-acetone smell in the car that was making her and her passengers sick. The case agent testified at trial that methamphetamine has a strong alcohol-acetone odor.

Police rented two adjacent hotel rooms at the downtown St. Paul Holiday Inn. They installed Munoz in one room and set up that room for video and audio surveillance. The audio surveillance was conducted by two recording devices: a microphone in the video camera and a body wire on Munoz. They used the adjoining room to monitor the surveillance. At about 6:15 that same day, Munoz again called Carlos from her cell phone. Again, police were present during the call and they recorded the conversation. Munoz told Carlos where she was and that she was not feeling well. Carlos put someone else on the telephone to get the directions to the Holiday Inn. Carlos Gaytan testified at trial that he participated in the call, and it was Emilio Corona who got on the line to get the directions. The recording of the telephone call was introduced into evidence at trial.

Shortly after the telephone call, Carlos Gaytan arrived at the hotel room, accompanied by Emilio Corona and Jaime Corona. Munoz testified at trial that she did not know Corona before he walked in the room, but that he told her he had talked to her on the phone. When they walked in the room, Gaytan handed Munoz $1,000. Munoz gave Gaytan a Ford key, which was supposed to be for the Ford Excursion, but which was actually a dummy key. Munoz complained to Gaytan that she was dizzy and felt bad because of the smell in the car, and Gaytan explained that "they probably hadn't fixed everything well." The conversation was in Spanish, and Emilio Corona said something which the case agent translated as meaning, "They were high," apparently referring to the effect of the odor in the car on Munoz and her passengers. At trial, the government introduced the audio-videotape of the meeting.

The three men left the room after about five minutes and went to the hotel parking lot. Emilio Corona walked up to the Excursion with the dummy key in his hand and tried to get in. Police arrested the men.

Corona moved to suppress the recording of the telephone call and the audio and video recordings of him in the hotel room. The motion was referred to a Magistrate Judge,³ who conducted an evidentiary hearing. The case agent testified that he sat down with Munoz before the meeting in the hotel room and asked for permission to videotape what went on in the hotel room and to record the conversation that took place there. Munoz gave her consent.

The Magistrate Judge understood the videotape to be a silent recording, rather than one that included a soundtrack. He held that Corona had no expectation of privacy in Munoz' hotel room, and therefore the videotaping did not violate his Fourth Amendment rights. As for the recording of the telephone conversation, the Magistrate Judge remarked that the government presented no evidence that Munoz explicitly consented in advance to the taping of the conversation. However, he concluded that the facts supported an inference that Munoz consented to the taping in that Munoz told police about the planned transaction and agreed to cooperate in a controlled delivery and she gave the police the keys to the Excursion. On the same day as the phone conversation, she agreed to be wired for sound and consented to the videotaping of the delivery of the events in the hotel room. The Magistrate Judge therefore recommended a finding of prior consent to the phone recording by one party to the conversation, which rendered lawful the interception of the conversation. The district court adopted the Magistrate Judge's recommendations and thus denied the motion to suppress.

On appeal of the denial of a motion to suppress evidence, we review the court's factual findings for clear error and its conclusions of law de novo. United States v. Ramires, 307 F.3d 713, 715 (8th Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1919, 155 L.Ed.2d 840, 2003 WL 1609399 (2003). We must affirm the district court's ruling unless it is unsupported by substantial evidence or reflects an erroneous view of the law, or unless the record as a whole leaves us with the definite and firm conviction that a mistake has been made. Id.

I.

Corona first contends that the district court erred in finding that Munoz consented to the interception of her telephone conversation with Carlos Gaytan and Emilio Corona. Corona challenges the district court's finding of consent in fact, rather than raising the related question of whether such consent was voluntary.

Title I of the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, Title I, 100 Stat. 1851,⁴ regulates the interception of wire, oral and electronic communications. 18 U.S.C. § 2510-22 (2000). Title I provides that it is not unlawful to intercept such a communication if a party to the communication has given prior consent to the interception. 18 U.S.C. § 2511(2)(c) (2000). Nor does such an interception violate the Fourth Amendment. United States v. White, 401 U.S. 745, 753, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). The government bears the burden of proving consent. United States v. Gomez, 900 F.2d 43, 44 (5th Cir.1990). Generally, we review a district court's determination that a person expressed consent under the clearly erroneous standard. United States v. Jones, 254 F.3d 692, 695 (8th Cir.2001) (consent to search of defendant's person); see also Griggs-Ryan v. Smith, 904 F.2d 112, 118 (1st Cir.1990) (treating consent under § 2511(2)(d) as legal issue where facts undisputed).

Consent may be express or implied, but in either case, there must be actual consent. Deal v. Spears, 980 F.2d 1153, 1157 (8th Cir.1992). When someone voluntarily participates in a telephone conversation knowing that the call is being intercepted, this conduct supports a finding of implied consent to the interception. For instance, in United States v. Horr, 963 F.2d 1124, 1125 (8th Cir.1992), a prison inmate used the prison telephone to plan an escape with actual knowledge that the Bureau of Prisons monitored and taped inmate calls. The inmate argued that whether or not he knew of the monitoring, he had not consented to it. Even though the district court had upheld the interception on a different theory, we held that knowledge of the monitoring plus the voluntary use of the telephone proved consent under section 2511(2)(c): "Horr was aware of the telephone monitoring policy. It was his choice to use the telephone to conduct his illegal business. Having gambled by discussing his escape on the prison telephone, Horr cannot now be heard to complain that he lost." Id. at 1126. Accord United States v. O'Connell, 841 F.2d 1408, 1422 n. 8 (8th Cir.1988); United States v. Diaz, 685 F.2d 252, 254-55 (8th Cir.1982); Griggs-Ryan, 904 F.2d at 116. Cf. Deal, 980 F.2d at 1157 (holding as matter of law that consent could not be inferred where interceptors told the party to the conversation that they might monitor the phone, but not that they were in fact doing so).

The Magistrate Judge inferred Munoz' consent to the telephone interception from her consent to cooperate in the controlled delivery and her participation in the elaborate preparations for that delivery, such as allowing herself to be wired for sound, giving the officers the keys to the Excursion, and consenting to the installation of videotaping equipment in the hotel room, all of which happened roughly contemporaneously with the telephone interception. This finding was bolstered by the trial testimony⁵ of the case agent, David Rodriguez, who testified about how Munoz' cell phone conversation was recorded: ...