U.S. v. Larios, 08-1299.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation593 F.3d 82
Docket NumberNo. 08-1987.,No. 08-1527.,No. 08-1299.,08-1299.,08-1527.,08-1987.
PartiesUNITED STATES of America, Appellee, v. Jose LARIOS, Benito Robles, Julio Agron, Defendants, Appellants.
Decision Date29 January 2010
593 F.3d 82
UNITED STATES of America, Appellee,
Jose LARIOS, Benito Robles, Julio Agron, Defendants, Appellants.
No. 08-1299.
No. 08-1527.
No. 08-1987.
United States Court of Appeals, First Circuit.
Heard September 9, 2009.
Decided January 29, 2010.

[593 F.3d 84]

J. Hilary Billings for appellant Agron.

Oscar Cruz, Jr., Assistant Federal Public Defender, for appellant Robles.

Stephen Paul Maidman for appellant Larios.

Mark T. Quinlivan, Assistant United States Attorney, with whom Michael K. Loucks, Acting United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, GAJARSA* and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Benito Robles, Jose Larios and Julio Agron (collectively, "appellants") were captured on audio/videotape participating in a controlled cocaine transaction in a motel room with an undercover agent. Robles and Larios entered guilty pleas to charges of conspiracy to distribute cocaine and possession of cocaine with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1), and, as to Robles, distribution of cocaine, 21 U.S.C. § 841(a)(1). They were each sentenced to 120 months in prison. Agron proceeded to trial and was convicted of conspiracy to distribute cocaine and possession of cocaine with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1), and was sentenced to a prison term of 168 months.

On appeal, Robles and Larios contend that the district court erred in admitting the audio recording at sentencing, because the unauthorized recording was obtained in violation of the federal wiretap statute, 18 U.S.C. §§ 2510-22 (enacted as Title III of the Omnibus Crime Control and Safe Streets Act) ("Title III"). Agron contends, on the same basis, that the court erroneously admitted the audio recording at trial. Appellants contend that they had a reasonable expectation of privacy in the motel room where the controlled transaction took place, and therefore the audio recording was an "oral communication" protected by Title III. The government argues that all three appellants lacked a legitimate expectation of privacy and therefore cannot invoke the protection of Title III. Alternatively, it argues that, as to Robles and Larios, the audio recording was admissible at sentencing as impeachment evidence.

The government's sweeping assertions as to the legality of the unauthorized, nonconsensual audio surveillance that took place here raise some difficult issues. However, because of the particular facts of this case, we need not address the broader implications of the government's contentions. As to Robles and Larios, who only challenge the admission of the audio recording

593 F.3d 85

at sentencing, we conclude that any error in admitting the recording was harmless, and therefore we do not address whether Robles and Larios had a reasonable expectation of privacy in the motel room. As to Agron, who challenges the admission of the audio recording at trial, we conclude that his brief engagement with the motel room did not justify a reasonable expectation of privacy in the room, and thus his communications were not protected by Title III.


A. The Investigation

We draw the facts from the trial transcript and, where appropriate, the sentencing hearing transcripts.1

In late 2006, the Drug Enforcement Administration (DEA), together with state and local law enforcement agencies, initiated an investigation of cocaine trafficking in Worcester, Massachusetts. The investigation was triggered by a tip from a cooperating source that a drug trafficker in the area was selling kilogram quantities of cocaine.

On November 1, an undercover DEA agent purchased 125 grams of cocaine from Robles, the target of the investigation, and arranged to make future purchases of kilogram quantities of cocaine. On November 9, the undercover agent met with Robles and flashed him $100,000 in cash to prove the agent's ability to purchase large drug quantities. The undercover agent agreed to buy eleven kilograms of cocaine from Robles at a price of $21,500 per kilogram, and they planned for the transaction to take place the following day at a local Super 8 motel.

On November 10, DEA agents rented two rooms at the Super 8 motel in Leominster, Massachusetts. Without first obtaining a warrant, they installed a concealed audio/video recording device in Room 125, where the planned transaction would take place. From the second rented room across the hall, agents were able to conduct electronic surveillance of activities in Room 125 on an audio/video monitor and to observe the outside of Room 125 through the peephole in the door. After the rooms had been rented, the undercover agent met with Robles and gave him an electronic key to Room 125. Later that day, however, Robles informed the undercover agent that he would not be able to deliver the cocaine until the following day, November 11.

Around 11 a.m. on November 11, Robles and two unidentified males entered Room 125. The men sat down, drank beer, and watched television for a few hours. At some point, Robles left the motel, and the two other men left sometime later. Around 2:00 p.m., Robles returned to Room 125 with Larios, but they were unable to enter the room because the key had been deactivated. The undercover agent met Robles in the motel parking lot about a half hour later, and Robles explained that his key was not working and he could not get into the room. The undercover agent took the key to the front desk, had it reactivated for an additional twenty-four-hour period, and returned the key to Robles. Robles and Larios then entered Room 125, first cautiously looking around to see if anyone else was in the room. Shortly thereafter, they left the motel.

Later that afternoon, Robles called the undercover agent and said he was ready to

593 F.3d 86

do the cocaine transaction. Around 5:30 p.m., Robles, Larios and Agron left Larios's home and got into a silver pick-up truck. One of the men carried a dark gym bag to the truck and threw it in the truck bed.2 At around 6:00 p.m., appellants arrived at the Super 8 motel and parked beside a red pick-up truck registered to Robles and occupied by a fourth individual, Miguel Mayoral. Larios retrieved the gym bag from the truck bed, while Agron looked around the parking lot. An agent who conducted surveillance from the parking lot testified that Agron appeared to be conducting "countersurveillance," looking for any law enforcement officers in the area. Robles, Larios, and Agron entered Room 125, again first looking around to see whether anyone else was there. When they entered the room, Agron was carrying the gym bag, and he placed it at the foot of the bed.3

After learning from surveillance agents that Robles was accompanied by two other men, the undercover agent called Robles and informed him that he would not make the cocaine purchase if anyone else was there. Robles insisted that his cousin, Larios, be present, and the undercover agent agreed. The three appellants then had a discussion, and Robles said to Agron, "Keep your eyes peeled there, in case you see something strange, you talk to me or you talk to him...." Agron then left the motel room, walked out to the parking lot, again looking around, and got into the parked red pick-up truck with Mayoral.

Once the undercover agent received notice that only Robles and Larios were present in Room 125, he entered the room, and Robles and Larios explained that they had only been able to obtain seven kilograms of cocaine, not the eleven kilograms originally agreed upon. The undercover agent inspected the seven kilograms of cocaine, which were in the gym bag on the bed. The undercover agent then gave an arrest signal, and agents arrested Larios and Robles in Room 125, and Agron and Mayoral in the motel parking lot. In a search incident to Agron's arrest, agents found a loaded nine millimeter handgun tucked into the waistband of his pants.

B. District Court Proceedings

Following their arrests, appellants were indicted by a federal grand jury. The multi-count indictment charged all three appellants with conspiracy to distribute cocaine and possession of cocaine with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1), and further charged Robles with distribution of cocaine, 21 U.S.C. § 841(a)(1), and Agron with possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1). Robles and Larios pled guilty to the charges against them, while Agron proceeded to trial.

A central issue at the sentencing of both Robles and Larios was whether they were entitled to safety valve relief under 18 U.S.C. § 3553(f), which requires, inter alia, that the defendant "truthfully provide[] to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the

593 F.3d 87

same course of conduct or of a common scheme or plan...." Id.; see also U.S.S.G. § 5c1.2(a)(5). The government contended that Robles and Larios had not given complete and truthful proffers, because they had falsely stated in their safety valve debriefings that Agron had no involvement in the November 11 transaction. The government sought to present evidence of Agron's involvement in the transaction, including a five-and-a-half to six minute segment of the audio/video recording of the motel room where the transaction occurred and a translated transcript of the audio recording. The government also notified Agron of its intention to present this segment of the audio/video recording and the accompanying transcript at his upcoming trial.

At the outset of Larios's sentencing hearing, he objected to admission of the audio portion of the recording under the Fourth Amendment. The court overruled his objection, correctly concluding that the exclusionary rule ordinarily does not bar the use of evidence obtained in violation of a defendant's Fourth Amendment rights in sentencing. See United States v. Acosta, 303 F.3d 78, 86 (1st Cir.2002) ("Given the great...

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