U.S. v. Petti

• Citation: 973 F.2d 1441
• Decision Date: 10 August 1992
• Docket Number: 91-50229,Nos. 91-50123,s. 91-50123
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Chris PETTI, aka Chris George Poulos, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Chris PETTI, aka Chris George Poulos, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1441

973 F.2d 1441

61 USLW 2118

UNITED STATES of America, Plaintiff-Appellee, v. Chris PETTI, aka Chris George Poulos, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Chris PETTI, aka Chris George Poulos, Defendant-Appellee.

Nos. 91-50123, 91-50229.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 1992.

Decided Aug. 10, 1992.

Oscar B. Goodman, Goodman & Chesnoff, Las Vegas, Nev., for defendant-appellant-cross-appellee.

Carol C. Lam, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee-cross-appellant.

Appeal from the United States District Court for the Southern District of California.

Before BROWNING and FARRIS, Circuit Judges, CAULFIELD, District Judge. ^*

JAMES R. BROWNING, Circuit Judge.

I. Facts

In July 1987, the FBI applied for and received judicial authorization for wiretap surveillance of appellant-cross-appellee Petti and several others suspected of engaging in a fraudulent scheme to gain control of a gambling enterprise on the Rincon Indian Reservation in San Diego, California. During the investigation, Petti's supposed friend, Benjamin, a government informant, introduced Petti to Agent Ahearn, an undercover investigator posing as a representative of Colombian cocaine dealers.

By the end of 1988, the focus of the investigation had shifted from the scheme to gain control of the gambling operation to a money laundering scheme involving a number of the same players, including Petti and his codefendant Silberman. Petti introduced Agent Ahearn to Silberman in November 1988. Agent Ahearn was to "invest" $100,000 in a "smurfing" scheme. ¹ At one point, Agent Ahearn asked Petti to "check out" one of the people involved in the scheme, and Petti did so, assuring Agent Ahearn the person was "okay."

In February 1989, Agent Ahearn and Silberman met to discuss a second deal. Agent Ahearn gave Silberman $200,000 in cash to be "laundered," and was given coupon bonds in exchange. Their value was less than promised, but Silberman and Petti assured Agent Ahearn that Petti would "take care of it." Ultimately, Silberman and Petti were arrested after Agent Ahearn and Silberman met to discuss still another money laundering deal.

Silberman's and Petti's trials were severed. Silberman, tried first, was convicted only of structuring financial transactions to avoid currency reporting requirements; the jury hung on the remaining counts. Silberman subsequently pled guilty to conspiring to evade reporting requirements and was sentenced to 46 months.

Before Petti was tried, the court denied his motion to suppress evidence of a number of wiretapped and taped conversations demonstrating his connection to Silberman and Agent Ahearn. That evidence was introduced at trial and Petti was convicted of conspiring to launder money and evade currency reporting requirements, evading currency reporting requirements, and filing false currency transaction reports.

Petti's base offense level under the federal sentencing guidelines was 20. It was raised two levels because the amount involved was more than $200,000 and three more because Petti knew the money came from narcotics activity. It was reduced four levels for Petti's minimal participation and two more for acceptance of responsibility. The resulting sentencing range was 37 to 46 months. The court departed downward and sentenced Petti to 30 months.

Petti appeals from the denial of his suppression motion, claiming the statute authorizing the wiretap surveillance violates the Fourth Amendment, and, if the statute is constitutional, the government did not meet its requirements. He also maintains there was insufficient evidence to support his conviction. The government cross-appeals, contending the court erred in granting the four-level reduction for minimal participation and in departing downward.

II. Constitutionality of Roving Wiretap Surveillance

Twenty-five years ago, the Supreme Court determined the Fourth Amendment governs wiretap surveillance. See Berger v. New York, 388 U.S. 41, 50-53, 87 S.Ct. 1873, 1879-80, 18 L.Ed.2d 1040 (1967); Katz v. United States, 389 U.S. 347, 352-53, 88 S.Ct. 507, 511-12, 19 L.Ed.2d 576 (1967). The Court made clear that if certain conditions were met, wiretapping authorized by warrant would pass constitutional muster. Berger, 388 U.S. at 54-60, 87 S.Ct. at 1881-84; Katz, 389 U.S. at 354-56, 88 S.Ct. at 512-14.

Congress codified the requirements of Berger and Katz in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 ("Title III"). See S.Rep. No. 1097, 90th Cong., 2d Sess. 66 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2161-63. Every circuit to address the issue, including our own, has upheld Title III against a challenge of facial unconstitutionality. See United States v. Turner, 528 F.2d 143, 158-59 (9th Cir.1975) (citing cases).

Title III was amended and retitled by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2521 ("Title I"). For purposes of Petti's appeal, we are concerned with only one of the changes Title I made: the addition of a provision, relied upon by the government in this case, permitting wiretap interception of an identified suspect's conversations over telephone facilities that are not and cannot be identified by address in the warrant. See 18 U.S.C. § 2518(11). ² Petti maintains the absence of a description of the specific telephone facilities from which the suspect's conversations are to be intercepted violates the Fourth Amendment requirement that no warrant shall issue except one "particularly describing the place to be searched."

The Supreme Court has explained:

The manifest purpose of [the] particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.

Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72 (1987). And as we held in United States v. Turner,

the "test for determining the sufficiency of the warrant description is 'whether the place to be searched is described with sufficient particularity to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.' "

770 F.2d 1508, 1510 (9th Cir.1985) (citations omitted). To satisfy the particularity requirement, then, the description of the place to be searched must not be so broad as to allow the search of places for which probable cause to search has not been demonstrated, or so vague that an executing officer might mistakenly search a place for which authorization was not granted.

If the description of the place to be searched avoids these dangers, it may comply with the particularity requirement even though it does not specify the physical location of the place to be surveilled. Thus, in United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), the Court rejected the argument that because it was impossible for police officers to specify in advance the place or places a beeper placed in a mobile object would invade, they should be able to monitor the beeper without first obtaining a warrant. The Court noted that the officers could satisfy the purposes of the particularity requirement by providing other information:

The Government contends that it would be impossible to describe the "place" to be searched, because the location of the place is precisely what is sought to be discovered through the search. However true that may be, it will still be possible to describe the object into which the beeper is to be placed, the circumstances that led agents to wish to install the beeper, and the length of time for which beeper surveillance is requested. In our view, this information will suffice to permit issuance of a warrant authorizing beeper installation and surveillance.

Id. at 718, 104 S.Ct. at 3305 (citation omitted).

The conditions imposed on "roving" wiretap surveillance by 18 U.S.C. § 2518(11)(b)(ii) satisfy the purposes of the particularity requirement. The statute does not permit a "wide-ranging exploratory search," and there is virtually no possibility of abuse or mistake. Only telephone facilities actually used by an identified speaker ³ may be subjected to surveillance, and the government must use standard minimization procedures to ensure that only conversations relating to a crime in which the speaker is a suspected participant are intercepted. See 18 U.S.C. § 2518(5). Further, the statute excuses failure to identify the particular telephone facilities to be surveilled only if the government establishes to the court's satisfaction that it is impossible to specify the facilities because it is the suspect's purpose to thwart interception by changing them. See 18 U.S.C. § 2518(11)(b)(ii).

Because the conditions imposed by the roving wiretap provision satisfy the purposes of the particularity requirement, and because we have determined previously that the many safeguards mandated by the statute for both roving and fixed interceptions satisfy the Fourth Amendment requirement that "no greater invasion of privacy [occur] than [is] necessary" to meet "the legitimate needs of law enforcement," Katz, 389 U.S. at 355-56, 88 S.Ct. at 513-14 (internal quotation marks and citations omitted), ⁴ the district court correctly found the provision permitting roving wiretaps to be constitutional. ⁵

III. Necessity for Surveillance

Petti contends the government's application for wiretap authority did not comply with the requirement that such an application attest to the necessity of the wiretap by including "a full and complete statement as to whether or not other...