U.S. v. Diaz-Diaz

• Decision Date: 28 December 2005
• Docket Number: No. 03-1803.,No. 03-1992.,No. 03-1804.,03-1803.,03-1804.,03-1992.
• Citation: 433 F.3d 128
• Parties: UNITED STATES of America, Appellee, v. Arcadio DIAZ-DIAZ, Gabriel Santos-Rodriguez, Edgar M. Medina-Sanchez, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

433 F.3d 128

UNITED STATES of America, Appellee, v. Arcadio DIAZ-DIAZ, Gabriel Santos-Rodriguez, Edgar M. Medina-Sanchez, Defendants, Appellants.

No. 03-1803.

No. 03-1804.

No. 03-1992.

United States Court of Appeals, First Circuit.

Submitted September 12, 2005.

Decided December 28, 2005.

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Juan M. Masini-Soler, for appellant Diaz-Diaz, Rafael Anglada-Lopez, for appellant Santos Rodriguez, and Nicolas Nogueras, Jr., for appellant Medina-Sanchez.

Nelson Perez-Sosa, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, were on brief for appellee.

Before LIPEZ, Circuit Judge, COFFIN, Senior Circuit Judge, and CARTER,^* Senior District Judge.

CARTER, Senior District Judge.

In this case we are again called upon to review convictions resulting from an FBI investigation of corrupt police officers engaged in the protection and transport of narcotics in the Commonwealth of Puerto Rico.¹ This appeal is brought by three co-defendants convicted on charges stemming from a conspiracy to provide police protection for cocaine shipments. Defendants-Appellants Santos-Rodriguez (hereinafter "Santos") and Medina-Sanchez (hereinafter "Medina") were both police officers at the time of the offenses. A jury convicted all three defendants of conspiring to distribute in excess of five (5) kilograms of cocaine, in violation of 21 U.S.C. § 846. Defendants Diaz-Diaz (hereinafter "Diaz") and Santos were also convicted of carrying firearms during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(a)(I). The district court sentenced Diaz to a prison term of 295 months. Santos received a sentence of 248 months of imprisonment. A prison sentence totaling 235 months was imposed on Medina. All three defendants also received a supervised release term of five years.

In this appeal defendants allege a variety of errors, both at trial and sentencing. At trial, the district court is alleged to have committed error by: (1) admitting video recordings of meetings between the defendants and the government's cooperating witness; (2) refusing to grant a mistrial after the prosecutor made improper comments to the jury; (3) failing to, sua sponte, instruct the jury concerning the defense of entrapment; and (4) denying defendant Diaz's motion for judgment of acquittal on the firearm charge. At sentencing, the district court is alleged to have committed error by: (1) improperly delegating its authority to the probation officer; (2) applying the four-level "Organizer or Leader" enhancement to Diaz's sentence; (3) denying Diaz's request for a two-level adjustment for "Acceptance of Responsibility"; (4) denying Diaz's request for a downward departure due to his health condition; and (5) sentencing the defendants in violation of United States v. Booker.²

I. Factual Background

The evidence presented at trial stems from an FBI "sting" operation. In October of 2000, Santiago Enmanuel De Leon Lasala (a/k/a "Avanti") approached the FBI seeking to serve as an informant. The FBI agents told Avanti that they were interested in police officers who served in protective roles for drug smuggling operations. Avanti, posing as a drug trafficker, attempted to find officers willing to perform such duties. Eventually, Avanti met defendant Diaz. Diaz told Avanti that he had police officers on his payroll willing to escort and protect cocaine shipments.

In order to get Diaz to produce these officers, undercover FBI agents posed as members of the drug trafficking cartel. On December 6, 2000, with the assistance of Avanti, Diaz met with an undercover FBI agent, whom he believed to be a member of the cartel. Diaz offered to provide police officers to escort a shipment of cocaine for the cartel. In this and subsequent meetings with the undercover agent, Diaz negotiated the details of the arrangement. Diaz recommended the route to be used in transporting the cocaine from Fajardo to San Juan. Diaz also negotiated the fee that he and his officers would receive, ultimately agreeing on $5,000 per person.

In order to obtain evidence of the defendants' participation in the conspiracy, the FBI, with the assistance of Avanti, arranged a covert system of surveillance. Using FBI provided funds, Avanti rented a storefront from which he taught music lessons. The FBI outfitted this music school with hidden cameras, microphones, and recording devices. Although the devices could be monitored from an outside location by FBI agents, operation of the system was left in the hands of Avanti. Avanti activated the devices by operating a switch on the exterior of the building before entering it to meet with the defendants. After the meetings were over, he could turn off the devices by using the switch when exiting.

On April 27, 2001, Diaz introduced Avanti to defendants Santos and Medina. This meeting took place at the music school and was recorded. The same men met again on June 4, 2001, to finalize plans for transporting the shipment of cocaine. This too was recorded at the music school.

On June 5, 2001 the defendants traveled to the Fajardo Mall. Medina and Santos each entered a separate unlocked vehicle, retrieved the keys from beneath the floor mat, and drove the cars to San Juan. Although the defendants believed that these vehicles contained cocaine, each vehicle contained ten kilograms of flour wrapped in duct tape. As the defendant police officers drove the cars filled with the flour, Diaz followed them in another vehicle.

After completing the transport, the defendants returned to the music school to receive their payment. While waiting there with Avanti, they were again recorded. The cameras recorded Santos removing a revolver from his waistband. The devices also recorded defendant Diaz's statement "He's armed, I'm armed, and he's armed," referring to his co-conspirators.

II. Analysis

Each defendant raises challenges to his conviction and subsequent sentence.

A. Challenges to Convictions

1. Defendant Medina

Medina argues that his conviction must be vacated because the evidence upon which the jury found him guilty was obtained illegally. Prior to trial, Medina moved to suppress recorded conversations between himself, his co-conspirators, and the government's paid informant, Avanti, on the grounds that they were obtained in violation of the Fourth Amendment's prohibition against unreasonable searches and seizures, and Title III of the Omnibus Crime Control and Safe Streets Act's prohibition on electronic surveillance, 18 U.S.C. § 2510 et seq. That motion was denied and the recorded conversations were admitted at trial.

In reviewing the denial of a motion to suppress, we review the district court's factual findings for clear error, and the district court's legal conclusions de novo. United States v. Marshall, 348 F.3d 281, 284 (1st Cir.2003).

On the facts presented in this case, the Fourth Amendment challenge clearly fails. The Fourth Amendment does not protect an individual from having his or her conversation recorded with the consent of another person who is a party to the surveilled conversation. Lopez v. United States, 373 U.S. 427, 438-39, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). In such instances, such devices are used "only to obtain the most reliable evidence possible of [the] conversation." Id. Although in some instances the use of devices may raise concerns of an "unlawful physical invasion of a constitutionally protected area," id., no such concerns are raised by police actions in this case. Cf. United States v. Padilla, 520 F.2d 526, 527 (holding that electronic devices planted in defendant's hotel room used to record conversations with federal agents violated Fourth Amendment). Here the electronic monitoring took place in a business controlled by the government's cooperating witness. Defendant's use of the premises was limited to his connection with the underlying conspiracy, thus tailoring the use of electronic monitoring to meetings relevant thereto. This connection was narrowed further by the fact that control of the devices was given to Avanti, not the government, thus ensuring that each conversation monitored was both related to the conspiracy and consented to by the cooperating witness. Consequently, admission of the tapes did not violate defendant's Fourth Amendment rights and there was no error.

Defendant's claim that the recordings violated Title III is, for similar reasons, without merit. As this court has previously recognized, "Congress, in its wisdom, chose to insert a myriad of exceptions and restrictive definitions into Title III, purposely leaving certain ... communications unprotected." Griggs-Ryan v. Smith, 904 F.2d 112, 116 (1st Cir.1990); see also 18 U.S.C. § 2511(1) (prohibiting intentional interception and disclosure "[e]xcept as otherwise specifically provided"). One such exception, 18 U.S.C. § 2511(2)(c), applies to this case and provides:

It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

18 U.S.C. § 2511(2)(c).

Thus, we have held that "[t]he statute permits the taping of conversations without approval if a person who is a party to the conversation gives prior consent." United States v. Font-Ramirez, 944 F.2d 42, 47 (1st Cir.1991).

Defendant does not contend that Avanti failed to consent to the taping of the conversations. Instead, he attempts to challenge the effect of that consent by arguing that Avanti's relationship with the government was of such a nature that he became an "agent" of the government, as opposed to a "cooperating witness." With respect to application of this statute, however, defendant has provided only a distinction without a difference. Were we to classify Avanti as a government...