U.S. v. Pratt

• Decision Date: 07 May 1990
• Docket Number: No. 89-1964,89-1964
• Citation: 913 F.2d 982
• Parties: UNITED STATES of America, Appellee, v. James L. PRATT, Jr., Defendant, Appellant. First Circuit. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 982

913 F.2d 982

UNITED STATES of America, Appellee, v. James L. PRATT, Jr., Defendant, Appellant.

No. 89-1964.

United States Court of Appeals,

First Circuit.

Heard May 7, 1990.

Decided Aug. 28, 1990.

Conrad W. Fisher, with whom Fisher, Mandell & Newlands and Donald A. Harwood, were on brief, for defendant, appellant.

C. Jeffrey Kinder, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief, for appellee.

Before TORRUELLA, SELYA and CYR, Circuit Judges.

TORRUELLA, Circuit Judge.

James L. Pratt brings this appeal from a jury verdict convicting him of conspiracy to possess with intent to distribute five hundred or more grams of cocaine. ¹ 21 U.S.C. Sec. 846. The United States District Court for the District of Massachusetts denied appellant's motions for a judgment of acquittal and for a new trial, and sentenced him to twenty-one years and eight months of incarceration, with a four year term of supervised release. This appeal followed.

I. BACKGROUND

On January 3, 1989, the Hampshire/Franklin County Crime Prevention and Control Unit ("CPAC") was approached by an informant, Walter Wheeler, who sought to exchange his cooperation in the instant case for government assistance with a pending state charge against him. The case was subsequently referred by CPAC to the Western Massachusetts Narcotics Task Force ("Task Force"), a federal agency comprised of federal, state and local police officers assigned to do narcotics work. A federal Drug Enforcement Administration ("DEA") agent heads the Task Force.

Wheeler's first meeting with the Task Force took place in the Federal Building at DEA offices in Springfield, Massachusetts on January 10, 1989. At that meeting, he provided certain information about Pratt, with whom he had been incarcerated, linking Pratt to cocaine trafficking. Thereafter, it was agreed that Wheeler would place a telephone call to appellant and attempt to arrange a meeting between Pratt, himself, and Detective Luis M. Rodriguez. Rodriquez was a deputized Federal Agent assigned to the Task Force, although he was also associated with the Chicopee, Massachusetts Police Department.

Shortly after 7:00 p.m. that evening, Wheeler reached Pratt by telephone and the two agreed to meet at the Yankee Peddlar Restaurant in Holyoke, Massachusetts at 8:15 p.m. This conversation was recorded. ² At about 8:00 p.m., Pratt arrived at the appointed place in a yellow Saab driven by the co-defendant. The Saab parked next to a black Camaro occupied by Agent Rodriguez, who was wearing a body wire, and Wheeler. After introductions were made, Rodriguez offered to sell appellant a kilogram of cocaine for $15,000, rather than his "usual price" of $22,000, because of Pratt's connection with Wheeler. At one point, Pratt or Wheeler apparently told the other that this transaction was a sort of "payback" for Pratt's having bailed Wheeler out of jail. Having only $5,000, Pratt inquired about Rodriguez' willingness to sell an "eightball," or one-eighth of an ounce of cocaine. Rodriguez told appellant that he did not have any cocaine with him, but that, in any case, he would only sell kilo packages.

Pratt and Agent Rodriguez arranged a second meeting for January 12th at 8:00 p.m. in the same parking lot. Appellant failed to appear. Thereafter, two telephone calls were made to Pratt. During both of these conversations, appellant indicated that he was having difficulty raising the $15,000. Pratt proposed an alternative plan, wherein Rodriguez would take $6,000 cash and title to a new Camaro automobile as security for the remainder. Rodriguez agreed.

The next contact between Rodriguez and Pratt occurred on January 17th at 10:30 p.m. At that time, Rodriguez received a call from Pratt on his beeper, and Rodriguez returned the call. ³ During this telephone conversation, Pratt indicated that he had $15,000 and wanted to "do the deal" that night. Rodriguez, however, suggested that they meet the following day.

The next morning, Rodriguez called Pratt. During that conversation, which was recorded, Rodriguez told appellant that, while Wheeler had informed him that appellant only had $12,500, he was willing to take that sum for the kilogram. A meeting was arranged for 1:00 p.m. at the Yankee Peddlar.

Rodriguez arrived at the Yankee Peddlar at 12:30 p.m., accompanied by Task Force Agent Ron Campurciani. Approximately 15 to 20 other officers were stationed in various areas of the parking lot. Sometime later, Pratt arrived in a 1980 Chevrolet Citation, driven by the co-defendant. Rodriguez entered Pratt's car, and a recorded conversation ensued. Pratt told him the money was in his jacket, and Rodriguez then took the money and counted it. After Rodriguez finished counting the money, he suggested that they go to his car to check the cocaine and to meet Agent Campurciani, who Rodriguez explained was his "runner." Once Campurciani opened the car's trunk, the police surveillance team moved in to effect arrests of both Pratt and the co-defendant. $12,500 was seized from the Chevy Citation.

On appeal, appellant makes several claims of error, each of which we review seriatim.

II. DENIAL OF MOTION TO SUPPRESS ELECTRONICALLY INTERCEPTED COMMUNICATIONS

At trial, Pratt moved to suppress the electronically intercepted conversations involving himself, Wheeler and Agent Rodriguez. It is uncontested that the conversations were recorded without a wiretap warrant and without appellant's knowledge or consent. Appellant sought to establish that the investigation was conducted primarily by state, rather than federal law enforcement officers, and hence that the Massachusetts wiretap statute, Mass.Gen.L. ch. 272, Sec. 99, rather than federal law, 18 U.S.C. Sec. 2510 et seq. (1982), governed the admissibility of the evidence. See United States v. Jarabek, 726 F.2d 889, 900 n. 10 (1st Cir.1984) (dictum) (where state officers knowingly violate state law without federal involvement, state law may apply in federal prosecution); United States v. Daniel, 667 F.2d 783, 785 (9th Cir.1982) (discussing, but not deciding the issue). The Massachusetts statute prohibits use of electronically intercepted communications unless both parties consent to the interception, or unless one party consents and the eavesdropper is a law enforcement officer investigating organized crime. ⁴ The district court denied appellant's motion on the theory that federal law governed the admissibility of the evidence, and permitted introduction of the recordings.

On appeal, Pratt first argues that the district court found that the investigation "was primarily a state operation," and therefore, that state law should have been applied. He contends that, since this is a factual finding, it is reviewable only for clear error. E.g., United States v. Cruz Jimenez, 894 F.2d 1, 7-8 (1st Cir.1990). While we will not disagree with this statement of the standard of review associated with factual findings, we do find fault with appellant's statement of the fact itself.

Appellant's interpretation of the district court's statement supports his position only if one reads the statement out of the context in which it was made. The whole statement was, "[t]he Court's impression, based on the record before it, is that this was primarily a state operation." Not only was this comment made before the trial began, but it was also made expressly conditional upon the facts before the court at that time. It is clear from the record that, at that point, the district court had heard no evidence regarding the referral of the case from the state CPAC Unit to the federal Task Force, or of the ensuing federal investigation. Thus, Pratt's emphasis of this single statement does not persuade this court that an error was made below.

Having thus concluded, we turn to the merits of the claim itself. On appeal, appellant argues that the district court's denial of his motion to suppress the recordings, on the grounds that United States v. Aiudi, 835 F.2d 943 (1st Cir.1987), cert. denied, 485 U.S. 978, 108 S.Ct. 1273, 99 L.Ed.2d 484 (1988), eliminated the need for such exclusion, constituted reversible error. In Aiudi, this court held that a search conducted by state police officers pursuant to an invalid warrant did not necessitate suppression of the evidence in federal court because a federal agent, who was at the scene at the time of the search, had authority to enter the premises without a warrant to do "legally ... exactly what ... the (state) police did unlawfully." United States v. Aiudi, 835 F.2d at 946.

Appellant contends that United States v. Aiudi is distinguishable from the case at bar. He argues that the Aiudi rule applies only when a federal agency is conducting an investigation independent of that of state officers, and therefore has no incentive to encourage misconduct by state police. Pratt contends, however, that in this case, although federal officers were aware of the investigation, they were not participants. Thus, he concludes that this is a case "where the federal government sat back and allowed illegally seized evidence to be handed them on a 'silver platter,' " id. at 946, thus mandating suppression of the evidence. Finally, appellant argues that Aiudi did not involve wiretap surveillance, and therefore has little applicability to the instant case.

After review of the record, we think it evident both that Aiudi was correctly utilized by the district court and that the investigation was primarily a federal affair. Aiudi, in applying Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), stated that "Elkins teaches that federal prosecutors cannot use evidence illegally procured by state officials when the 'evidence [was] obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant's immunity from unreasonable searches and seizures.' " Aiudi, 835 F.2d at 946 (citing Elkins v. United States, 364 U.S. at 223, ...