U.S. v. Diaz, 82-1228
| Decision Date | 19 August 1982 |
| Docket Number | No. 82-1228,82-1228 |
| Citation | 685 F.2d 252 |
| Parties | UNITED STATES of America, Appellee, v. Martin DIAZ, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Thomas E. Dittmeier, U. S. Atty., Richard L. Poehling, Asst. U. S. Atty., St. Louis, Mo., for appellee.
Eugene F. Zenobi, Miami, Fla., and Lee Platke, St. Louis, Mo., for appellant, Martin Diaz.
Before LAY, Chief Judge, and HEANEY and McMILLIAN, Circuit Judges.
Martin Diaz appeals from a final judgment entered in the District Court 1 for the Eastern District of Missouri, following a bench trial on certain stipulated facts, finding him guilty of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. The district court sentenced Diaz to ten years imprisonment. For reversal Diaz argues that the district court erred in (1) denying his motion to suppress a tape-recorded conversation that occurred in his house, (2) denying his motion to suppress certain tape-recorded telephone conversations, and (3) denying his motion for change of venue. For the reasons discussed below, we affirm the judgment of the district court.
In late May 1981, Larry Wells, an undercover St. Louis police officer assigned to the Drug Enforcement Administration (DEA), arranged through a confidential informant to buy a kilo of cocaine. According to the confidential informant, Hellmuth Konyen and Charles Daroff would deliver the cocaine on June 4, 1981, at St. Louis Lambert International Airport. Wells met Konyen and Daroff at the airport, bought the cocaine, and then identified himself as a federal officer and arrested them on federal narcotics charges. Daroff agreed to cooperate with the DEA and assist in the investigation. Daroff identified Diaz as his supplier in Miami and telephoned Diaz in Miami, allowing Wells to tape-record the telephone conversation. Later Konyen also agreed to cooperate with the DEA.
On June 5, 1981, Daroff tried to telephone Diaz in Miami but only reached an answering machine. Later that day, Daroff again telephoned Diaz and made arrangements to meet the next day in Miami. Wells tape-recorded this telephone conversation. On June 6, 1981, Konyen, Daroff and Wells flew to Miami. Daroff and Wells went to Diaz's house and were admitted by Diaz. Wells was wearing a "body bug" or electronic transmitter. Daroff introduced Wells as his uncle Hellmuth Konyen. Wells then "paid" Diaz over $50,000 for the cocaine which had been delivered in St. Louis. The conversation was tape-recorded by Juan Perez, a Florida police officer assigned to the Miami DEA office. Diaz was arrested. Following various pretrial suppression motions, Diaz waived trial by jury and was found guilty of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. Konyen and Daroff were named as coconspirators. This appeal followed.
Diaz first argues that the district court 2 erred in denying his motion to suppress the tape-recorded conversation between Daroff, Wells and himself that occurred in his house on June 6, 1981. Diaz cites a recent Florida Supreme Court case, State v. Sarmiento, 397 So.2d 643, 644 (Fla.1981) (per curiam), holding that "the warrantless, electronic interception by state agents of a conversation between (the) defendant and an undercover police officer in (the) defendant's home (was) an unreasonable interception of (the) defendant's private communications" in violation of the Florida constitution. Diaz notes the similarity between the facts in Sarmiento and the present case and stresses that the intercepting officer here was a Florida police officer.
Had this prosecution been brought in the Florida state courts, it would appear that Diaz's argument would have had some merit. However, this is a federal criminal prosecution. " (W)iretap or other evidence obtained without violating the Constitution or federal law is admissible in a federal criminal trial even though obtained in violation of state law." United States v. Neville, 516 F.2d 1302, 1309 (8th Cir.) (footnote omitted), cert. denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 251 (1975). "Neither the Constitution nor any Act of Congress requires that official approval be secured before conversations are overheard or recorded by Government agents with the consent of one of the conversants." United States v. Caceres, 440 U.S. 741, 744, 99 S.Ct. 1465, 1467, 59 L.Ed.2d 733 (1979) (footnote omitted) (defendant's conversations with IRS agent were monitored and recorded by "body bug" worn by IRS agent); see also United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971) (plurality opinion); United States v. Neville, 516 F.2d at 1308-09. Here, the requisite consent was supplied by undercover officer Wells.
Diaz next argues that the district court erred in denying his motion to suppress certain tape-recorded conversations. Diaz argues that the government failed to carry its burden of showing that Daroff consented to the monitoring and tape-recording of his telephone calls to Diaz in Miami. In particular Diaz argues that the government failed to call Daroff as a witness at the suppression hearings and as a result denied him due process of law. Diaz also argues that Daroff's cooperation and consent were coerced. We must disagree.
"It is well settled that a defendant's Fourth Amendment rights are not violated when the defendant's conversations with a government informant are recorded with the consent of the informant." United States v. Kirk, 534 F.2d 1262, 1272 (8th Cir. 1976), cert. denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977); see also United States v. Rich, 518 F.2d 980, 984-85 (8th Cir. 1975), cert. denied, 427 U.S. 907, 96 S.Ct. 3193, 49 L.Ed.2d 1200 (1976); United States v. McMillan, 508 F.2d 101, 104 (8th Cir. 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975). The voluntariness of the consent requires an examination of "the totality of the circumstances surrounding the events in question." United States v. Kirk, 534 F.2d at 1272, citing United States v. McMillan, 508 F.2d at 104 n.2. Here, Wells testified at the suppression hearings that Daroff knew what the DEA agents were doing with the tape-recording equipment and agreed to telephone Diaz knowing that the telephone conversations would be monitored and recorded. This is sufficient to establish consent. See United States v. Kirk, 534 F.2d at 1272-73, cit...
To continue reading
Request your trial
-
U.S. v. Mayo, s. 82-2431
...under 21 U.S.C. Sec. 846 is proper in the district where an overt act, in furtherance of the conspiracy, occurs. See United States v. Diaz, 685 F.2d 252, 255 (8th Cir.1982); United States v. Nicoll, 664 F.2d 1308, 1311 (5th Cir.), cert. denied, 457 U.S. 1118, 102 S.Ct. 2929, 73 L.Ed.2d 1330......
-
United States v. Long
...of the evidence standard simply because he or she does not provide the best evidence on an issue. See, e.g., United States v. Diaz, 685 F.2d 252, 255 (8th Cir.1982) (holding the government's showing of consent was not fatally flawed by its failure to call an informant as a witness because a......
-
U.S. v. Hull
...of them were never physically present there." United States v. Fahnbulleh, 748 F.2d 473, 477 (8th Cir.1984) (quoting United States v. Diaz, 685 F.2d 252, 255 (8th Cir.1982)); see also United States v. Cordova, 157 F.3d 587, 597 (8th The district court did not err in denying Hull's motion to......
-
Harvey v. U.S.
...especially in that the government had the burden of proving that the consent was voluntary and uncoerced. See United States v. Diaz, 685 F.2d 252 (8th Cir.1982). There was, however, strong evidence of consent, namely Marlow had agreed to act as a government informant and had struck a deal w......