U.S. v. Lopez

• Decision Date: 20 August 2002
• Docket Number: No. 01-1390.,01-1390.
• Citation: 300 F.3d 46
• Parties: UNITED STATES of America, Appellee, v. Amado LÓPEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

300 F.3d 46

UNITED STATES of America, Appellee, v. Amado LÓPEZ, Defendant, Appellant.

No. 01-1390.

United States Court of Appeals, First Circuit.

Heard April 5, 2002.

Decided August 20, 2002.

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Peter E. Rodway, with whom Rodway & Horodyski was on brief, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, Appellate Chief, with whom Paula D. Silsby, United States Attorney, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

TORRUELLA, Circuit Judge.

Defendant-appellant, Amado López ("López"), entered a conditional plea of guilty on charges of conspiring to possess cocaine and cocaine base with intent to distribute. See 21 U.S.C. §§ 841, 846. On appeal, López challenges an adverse ruling below on his motion to suppress evidence obtained pursuant to a wiretap warrant governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. §§ 2510-22. For the first time on appeal, the appellant also raises a constitutional challenge to the sentence imposed by the district court. For the reasons set forth below, we reject López's arguments and affirm the rulings of the district court.

I. BACKGROUND

A. The conspiracy

In early April 1999, an agent of the Drug Enforcement Administration ("DEA") received information from a confidential source indicating that a cocaine distribution conspiracy was operating in the area of Brunswick, Maine. With the help of the confidential source, undercover DEA agents were able to contact members of the conspiracy directly and arrange several controlled purchases of cocaine. The DEA was also able to gain information concerning the conspiracy through other investigative techniques, including visual surveillance and pen-register analysis. In addition, DEA agents obtained the assistance of at least one other confidential source who was able to identify other members of the conspiracy.

On November 17, 1999, the government applied for authorization to conduct wiretaps of two mobile telephones allegedly used by members of the drug distribution ring. Along with the application, DEA Agent Brian Boyle ("Boyle") submitted an affidavit describing the investigation of the drug conspiracy to date. Boyle detailed the progress of the investigation and various investigative techniques that either had been tried previously or were deemed unlikely to succeed. Based on the government's application, Chief U.S. District Judge D. Brock Hornby granted the wiretap application. The order issued by Chief Judge Hornby provided:

Wherefore, it is hereby Ordered that special agents of the United States Drug Enforcement Administration and other investigative and law enforcement officers, assisted, if necessary, by qualified translators, pursuant to the application of the Assistant United States Attorney Jonathan A. Toof, are authorized to intercept and record wire communications to and from the cellular telephone ... assigned and billed to Orlando Santana, Jr.....

The wiretap plant was operated for approximately twenty days. As a result of certain subscriber changes, the order was amended once during the course of the plant's operation. And on November 29 and December 7, 1999, the government filed progress reports with the court setting forth the number of calls intercepted, samples of the types of conversations recorded, and names of conspirators who had and had not been identified. See 18 U.S.C. § 2518(6) (providing that the authorizing judge may require the government to submit periodic progress reports).

Ultimately, the wiretap intercepted approximately 1700 telephone calls. Throughout the duration of the wiretap, the government relied on the services of civilian monitors working under contract with the government. The civilian monitors provided some translation services; however, the majority of the civilians' services consisted of monitoring all intercepted calls and performing "minimization" — that is, the implementation of procedures established by the government to ensure that the fewest number of non-pertinent (or "innocent") calls are intercepted. See 18 U.S.C. § 2518(5) (providing for a minimization requirement in any order approving or extending a wiretap warrant).

Based on the information obtained through the wiretap, the government was able to build a formidable case against the conspiracy members. According to the appellant, a number of the intercepted telephone calls were particularly incriminating to him.

B. Proceedings below

López was indicted and charged together with seventeen other co-conspirators. Count I of the indictment charged López and the other defendants with a conspiracy to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The remaining counts of the seven-count indictment pertained to conspirators other than López. The case was assigned to U.S. District Judge Gene Carter.

López, joined by most of the other defendants, moved to suppress the evidence gathered by the wiretap. López argued below: 1) that there was no probable cause to issue the wiretap authorization; 2) that the government failed to demonstrate in its application for wiretap authorization that conventional investigative techniques were ineffective; and 3) that the government failed to properly minimize the interception of the telephone calls. Judge Carter denied López's initial motion to suppress, but raised concerns in his written decision about the government's use of civilian monitors to conduct the minimization. See United States v. López, No.Crim. 99-79-P-V, 2000 WL 761977 (D.Me. April 28, 2000). Judge Carter then invited all of the defendants to file additional motions to suppress for the purpose of addressing this issue. López did so and argued that the government's use of civilian monitors exceeded the scope of the original wiretap authorization and, as a consequence, resulted in improper minimization of calls to the targeted phones. After this additional round of briefing, Judge Carter denied the motion to suppress. See United States v. López, 106 F.Supp.2d 92 (D.Me.2000).

Following the denial of the motion, López entered a conditional plea of guilty, preserving for appeal the admissibility of the wiretap evidence. Judge Carter then sentenced López to 240 months in prison. This timely appeal followed.

II. TITLE III

By enacting Title III, Congress sought to protect the privacy of wire and oral communications while, at the same time, authorizing the use of electronic surveillance evidence obtained by law enforcement under specified conditions. See Bartnicki v. Vopper, 532 U.S. 514, 523, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001). In accordance with Congress's concern for preserving privacy, Title III makes the interception of electronic communications by law enforcement an extraordinary investigative technique whose use "is to be distinctly the exception — not the rule." United States v. Hoffman, 832 F.2d 1299, 1306 (1st Cir.1987). The statute thus imposes a number of strict requirements on the issuance and use of wiretap warrants. See United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974).

At the outset, a duly-authorized law enforcement officer must obtain approval from the Attorney General of the United States or a specially designated assistant attorney general in order to apply to a federal judge for a wiretap. See 18 U.S.C. § 2516(1). Once such approval is obtained, the officer must present a written application for a wiretap to the judge. Before issuing the wiretap, the judge must make certain enumerated findings and issue an ex parte order containing specified elements. See 18 U.S.C. § 2518(1), (3)-(4).

In the application for the wiretap, the government must make a detailed proffer including: (a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application; (b) a full and complete statement of the facts and circumstances justifying the applicant's belief that an order should be issued;¹ (c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they appear to be too dangerous or unlikely to succeed if tried; (d) a statement of the period of time for which the interception is required to be maintained; and (e) a full and complete statement of the facts concerning all previous applications involving any of the same persons, facilities, or places specified in the application. See 18 U.S.C. § 2518(1)(a)-(e).

Finally, in the event the application is granted, Title III provides numerous grounds upon which communications obtained pursuant to a Title III warrant may be suppressed in any proceeding. Specifically, the statute states:

Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that — (i) the communication was unlawfully intercepted; (ii) the order or authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval....

Id. § 2518(10)(a).

López makes sundry arguments as to why the incriminating communications intercepted by the government must be suppressed. He argues first that the government's application was inadequate on its face to satisfy the so-called "necessity requirement" of Title III. See id. § 2518(1)(c). López also argues that the government neglected to disclose its intention to use civilian monitors and, therefore, that its subsequent use of such monitors...