U.S. v. Delaplane, s. 84-1312

Decision Date02 December 1985
Docket NumberNos. 84-1312,84-1796 and 84-1798,s. 84-1312
Parties19 Fed. R. Evid. Serv. 1347 UNITED STATES of America, Plaintiff/Appellee, v. Deborah DELAPLANE, Paul Mosher and Michael O'Brien, Defendants/Appellants.
CourtU.S. Court of Appeals — Tenth Circuit

Bruce F. Black (Robert N. Miller, U.S. Atty., with him on brief), Asst. U.S. Atty., Denver, Colo., for plaintiff/appellee.

Joseph Saint-Veltri, Denver, Colo., for defendant/appellant Delaplane.

Steven Janiszewski (Rod W. Snow, with him on briefs), of Dixon & Snow, P.C., Denver, Colo., for defendants/appellants Michael O'Brien and Paul Mosher.

Before BARRETT and SEYMOUR, Circuit Judges, and GREENE, * District Judge.

BARRETT, Circuit Judge.

These consolidated appeals are before us in accordance with Fed.Rules Cr.Proc. rule 11(b), 18 U.S.C. Under Rule 11(b), a defendant "may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pre-trial motion." Rule 11(b) also provides that if "the defendant prevails on appeal, he shall be allowed to withdraw his plea."

Michael O'Brien (O'Brien), Paul Mosher (Mosher) and Deborah Delaplane (Delaplane) 1 were indicted on March 30, 1983, and charged with conspiracy to distribute cocaine. Delaplane was also charged in a separate count with possession with intent to distribute cocaine. Prior to trial, appellants, collectively, filed some 43 motions which were joined by the district court for determination. Motion hearings extended over five days.

Evidence presented during the motion hearings tended to establish that from November, 1981, through March, 1983, Corporal Neal A.J. Kingdon, of the National Crime Intelligence Section of The Royal Canadian Mounted Police, Red Deer, Alberta, Canada, was engaged in an ongoing investigation into the suspected drug activities of O'Brien, a resident of Red Deer. During the course of the investigation, Cpl. Kingdon contacted Special Agent James R. Poland, U.S. Customs Service, Blaine, Washington, on January 21, 1983, and requested routine intelligence information about prosecutorial guidelines for Florida cocaine cases.

On January 24, 1984, Poland responded (via telephone) to Kingdon's inquiry and learned that O'Brien was the subject of the earlier inquiry. During their conversation Kingdon also asked Poland for the identity of the subscribers of certain United States telephone numbers. Subsequent thereto, between February 1 and 9, 1983, Poland and Kingdon had several additional telephone conversations during which Poland responded to Kingdon's telephone subscriber inquiries and Poland related that a computer inquiry on O'Brien had disclosed a Canadian conviction which affected O'Brien's immigration status into the United States.

On March 22, 1983, Kingdon, acting on information received from an unidentified informant that O'Brien was to be involved in a "major drug transaction" that was to occur "very soon," applied for and received an order from the Queen's Bench of Alberta, Canada, for a wiretap of O'Brien's telephone at his Red Deer residence.

On March 23, 1983, a conversation was intercepted which indicated that O'Brien was going to drive to Great Falls, Montana, and meet a woman named "Deb"; O'Brien was to give Deb some money which she was to take to San Francisco; O'Brien was to drive to Denver, Colorado, where he would meet with Deb and Mosher; and that once in Denver, O'Brien would receive the drugs. After receiving the call, Kingdon contacted Poland who in turn contacted other agents in Great Falls and Denver to establish surveillance of Delaplane and O'Brien.

Delaplane, O'Brien, and Mosher were all arrested on March 25, 1983, at Denver's Stapleton Airport shortly after Delaplane's incoming flight had arrived. Delaplane was searched at the time of her arrest and officers seized one package of cocaine from her pocket and a second package of cocaine taped to her leg.

Following hearings on appellants' pre-trial motions, supra, the district court entered an order on September 6, 1983, finding, inter alia: that the Canadian wiretap and the evidence derived therefrom need not be suppressed; that the evidence seized during a search of O'Brien's home shortly after his arrest was admissible; the search of Delaplane was a reasonable one incident to her arrest; and that the search of Mosher's trunk following his arrest was unlawful and the evidence seized in conjunction with the search inadmissible.

On January 30, 1984, Delaplane entered a conditional plea in accordance with Rule 11(b). On April 16, 1984, prior to the commencement of O'Brien's and Mosher's trial, the district court ruled that the Government could use both the original tape recordings of several wiretapped telephone conversations and also recorded voice exemplars of the defendants in presenting its case (R., Supp. Vol. III at 3-10).

On April 17, 1984, after a mistrial due to the absence of a juror, Mosher entered a Rule 11(b) conditional plea. O'Brien entered his Rule 11(b) conditional guilty plea the following day.

On appeal O'Brien and Mosher contend: (1) the evidence derived from the Canadian wiretap was inadmissible and should have been suppressed; (2) the court erred in ruling that it would allow the Government to establish their identification through the use of hearsay statements; and (3) the court erred in its ruling on the voice exemplars. Delaplane contends: (1) the evidence obtained from the Canadian wiretap was inadmissible; (2) the evidence seized from her at the time of her arrest was inadmissible; and (3) the court erred in imposing on her, in addition to a sentence of confinement, a special parole term of three years.

I.

The appellants contend that the evidence derived from the Canadian wiretaps was inadmissible and that the district court erred in denying their motions to suppress the contents of the wiretaps authorized by the Canadian court. Appellants contend that the wiretaps did not comply with the laws of Canada and the evidence derived therefrom would thus, have been inadmissible in Canada; further, that had the wiretaps occurred in the United States the evidence derived therefrom would have been equally inadmissible under 18 U.S.C. Sec. 2510et seq. Appellants argue that federal agents of the United States substantially participated with Canadian officials so as to convert the investigation, including the wiretaps, into a joint venture, thus rendering the wiretaps subject to the exclusionary rule. Lastly, appellants argue that the totality of the circumstances surrounding the wiretaps, and the subsequent searches and seizures by the Canadian and United States agents are so shocking to fundamental notions of due process recognized in the United States as to warrant the exclusion of any evidence obtained therefrom.

The standard most consistently set forth in reviewing the applicability of the exclusionary rule to evidence seized by foreign police, and that which we now adopt, is set forth in United States v. Hensel, 699 F.2d 18 (1st Cir.1983), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1317 (1983) wherein the court held:

We first consider whether the "exclusionary rule" does not apply to this search because it was conducted by Canadians. As the government points out, the "exclusionary rule" does not require the suppression of evidence seized by foreign police agents, for the actions of an American court are unlikely to influence the conduct of foreign police. See United States v. Rose, 570 F.2d 1358, 1361-62 (9th Cir.1978); United States v. Morrow, 537 F.2d 120, 139 (5th Cir.1976), cert. denied sub nom. Martin v. United States, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977). This principle does not dispose of the case, however, for there are two well-established exceptions to this rule: (1) where foreign police conduct "shock[s] the judicial conscience," id. at 139 and (2) where American agents "participated in the foreign search, or ... [the foreign officers acted] as agents for their American counterparts...."

699 F.2d at 25.

In determining that the evidence derived from the Canadian wiretaps was admissible in the case at bar, the district court found, inter alia:

Interesting enough, examination of the issues raised here begins with the Government's concession that if the Canadian order and the subsequent events were to be judged by the standards of 28 U.S.C. Sec. 2510, et seq., they would fail the test. Yet, given the nature of the Canadian statutes regarding wiretap, this is not startling. Indeed, Sec. 178.1 to 178.23 of the Canadian Criminal Code (relating to invasions of privacy) can easily be characterized as less stringent in terms of its requirements than its American counterpart. With that preamble, let us turn to the specific arguments.

* * *

* * *

The seminal question is whether the failure of the Canadian authorities to follow the mandates of 18 U.S.C. Sec. 2510, et seq. or the defendants' inability to obtain the disclosure of information pursuant to 18 U.S.C. Sec. 2518(a) requires an equitable remedy. After consideration, I believe that question should be answered in the negative.

From the evidence presented to me, it is my conclusion the institution of the interception was for the investigation of a Canadian offense, and it was not a product of a cooperative effort between Canadian and American authorities.

* * *

* * *

This conclusion is supported by the testimony relating to the nature of the information sought by Kingdon and conveyed by Poland. From the time of the first conversation on January 21, 1983, to the conversation of March 23, 1983, Poland responded to specific informational requests from Kingdon.... * am convinced that while information was passed over the border, and while there was contact between Canadian authorities and agencies of the United States, two things are clear. First, the...

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