U.S. v. Uribe

Decision Date06 November 1989
Docket NumberD,RAVE-ARIA,Nos. 88-1837 and 88-1838,Nos. 88-1837,s. 88-1837,s. 88-1837 and 88-1838
Citation890 F.2d 554
PartiesUNITED STATES of America, Appellee, v. Nestor URIBE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Leon Alberiorefendant, Appellant. UNITED STATES of America, Appellee, v. David RASH, Defendant, Appellant. to 88-1839. . and 88-1838 Heard
CourtU.S. Court of Appeals — First Circuit

Charles J. Rogers, Jr., Providence, R.I., for defendant, appellant, Nestor Uribe.

Norman E.V. D'Andrea, Providence, R.I., by Appointment of the Court, for defendant, appellant, Leon Alberior Rave-Arias.

David Rash, New Orleans, La., on brief pro se.

James H. Leavey, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for the U.S.

Before BREYER and SELYA, Circuit Judges, and VAN GRAAFEILAND, * Senior Circuit Judge.

SELYA, Circuit Judge.

A federal grand jury indicted defendants Nestor Uribe, Leon Alberior Rave-Arias (Rave), and David Rash, appellants before us, on various conspiracy and drug trafficking charges, and for aiding and abetting. 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B)(ii), 846; 18 U.S.C. Sec. 2. Following a five day jury trial, defendants were convicted on all counts. Their motions for new trial, submitted in the ordinary course and form, were denied. Close to four weeks after the verdict, Uribe docketed a second motion for new trial. In it, he asserted that one of the petit jurors knew him and might, therefore, have been biased against him. Rash also filed a supplemental motion suggesting that Uribe's tie to the juror tainted Rash's conviction. The district court held an evidentiary hearing and denied both motions.

We have reviewed the gaggle of claims raised on appeal, and find them meritless. Accordingly, we affirm the convictions.

I. BACKGROUND

We set forth the evidentiary predicate in the light most generous to the prosecution, as caselaw requires. See, e.g., United States v. Ingraham, 832 F.2d 229, 230 (1st Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988); United States v. Cintolo, 818 F.2d 980, 983 (1st Cir.), cert. denied, 484 U.S. 913, 108 S.Ct. 259, 98 L.Ed.2d 216 (1987).

In May 1987, the government applied for, and received, a court order authorizing electronic surveillance of a telephone at Uribe's home in West Warwick, Rhode Island. The order authorized the wiretap for a period of 30 days. It was thereafter twice renewed. Early on, agents of the Federal Bureau of Investigation (FBI) intercepted three calls from Uribe and his wife to Rash. The conversations concerned arrangements for the purchase of kilogram quantities of cocaine. Hard upon the last of these contacts, FBI agents observed Rash and the Uribes meeting at a restaurant in Warwick, Rhode Island. In July, another telephone conversation took place involving the delivery of a half-kilogram of cocaine.

On August 14, 1987, a call was intercepted in which Rash advised Uribe, in code, that he wished to buy a kilogram of cocaine. Uribe telephoned Rave and arranged to meet him at Rhode Island Hospital. Shortly thereafter, agents observed Uribe enter the hospital and leave a few moments later. When Uribe placed another call to Rash, the latter reaffirmed his acquisitive interest. Uribe relayed the request to Rave, who agreed to meet Uribe at a Warwick eatery. Agents later saw Uribe and Rave in the restaurant's parking lot. They watched as Rave gave Uribe a brick-shaped object, which Uribe inserted into a blue shoebox. After placing the shoebox into his vehicle, he drove to a park in Worcester, Massachusetts. Rash was there. Uribe, carrying a rectangular package in a plastic bag, entered Rash's automobile. He left the vehicle without the package. Rash departed.

In a matter of minutes, police rang down the curtain. The officer who stopped Rash's car retrieved from within it a blue shoebox containing 1,007 grams of cocaine (75% pure), having a street value over $225,000. Arrest, indictment, trial, and conviction followed apace.

On appeal, we deal with the myriad assignments of error in what seems to us a logical order. Certain points briefed and argued are not discussed because we have found them to be so patently unmeritorious as to render comment superfluous.

II. SUPPRESSION OF THE INTERCEPTS

In the district court, defendants unsuccessfully attempted to suppress the contents of Uribe's recorded telephone conversations with Rave and Rash, respectively. Uribe and Rave press the attack on appeal. They make two main arguments.

A. Less Intrusive Means.

The Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-20 (1982) (Title III), declares that a wiretap application must include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. Sec. 2518(1)(c). As we have explained: "The basis for the statutory monition is the salutary notion that the sovereign should make a reasonable, good faith effort to run the gamut of normal investigative procedure before resorting to means so intrusive as electronic interception of telephone calls." United States v. Hoffman, 832 F.2d 1299, 1306-07 (1st Cir.1987); see also United States v. Ashley, 876 F.2d 1069, 1072 (1st Cir.1989). In this case, the claim that the investigation could have been efficaciously carried out using less intrusive means is unfounded.

Title III demands a practical, commonsense approach to exploration of investigatory avenues and relative intrusiveness. In essaying such an approach, the type of crime is important. By its very nature, interstate drug trafficking is hard to pin down. Surely, "the law was not meant to force the government to run outlandish risks or to exhaust every conceivable alternative before seeking a wiretap." Hoffman, 832 F.2d at 1306. Here, we think the necessary predicate was laid: supporting documents filed by the government carefully detailed a variety of investigative procedures which had been utilized, set out a solid basis for believing that drugs were being sold, and explicated the need for more sophisticated inquiry. Defendants do not cast any real doubt on the scope or sincerity of the government's earlier investigatory efforts, nor do they convincingly suggest what else, short of electronic surveillance, the FBI might fruitfully have attempted to further the probe. The wiretap was appropriate.

B. Minimization.

Next, Uribe and Rave assert that the government failed to minimize its eavesdropping and that, consequently, the intercepted conversations should be suppressed. This claim has its genesis in the congressional mandate that all electronic surveillance "shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception." 18 U.S.C. Sec. 2518(5). In Title III, Congress "set out to provide law enforcement officials with some of the tools thought necessary to combat crime without unnecessarily infringing upon the right of individual privacy." Scott v. United States, 436 U.S. 128, 130, 98 S.Ct. 1717, 1719, 56 L.Ed.2d 168 (1978). The minimization requirement, then, "spotlights the interest in confining intrusions as narrowly as possible so as not to trench impermissibly upon the personal lives and privacy of wiretap targets and those who, often innocently, come into contact with such suspects." Hoffman, 832 F.2d at 1307.

The touchstone in assessing minimization is the objective reasonableness of the interceptor's conduct. See Scott, 436 U.S. at 137, 98 S.Ct. at 1723. The government is held to a standard of honest effort; perfection is usually not attainable, and is certainly not legally required. "The statute does not forbid the interception of all nonrelevant conversations, but rather instructs the agents to conduct the surveillance in such a manner as to 'minimize' the interception of such conversations." Id. at 140, 98 S.Ct. at 1724. Compliance determinations are necessarily fact-specific; because circumstances vary, "there can be no inflexible rule of law which will decide every case." Id. at 139, 98 S.Ct. at 1724. As we have written: "The facts and circumstances of the particular investigation ... comprise a critical integer in the minimization equation." Hoffman, 832 F.2d at 1308. Some general guidance is nevertheless available. Once a wiretap has been duly authorized, we have been prone to look hardest at three relevant areas in assessing compliance: the nature and complexity of the suspected crimes; the thoroughness of the government precautions to bring about minimization; and "the degree of judicial supervision over the surveillance practices." United States v. Angiulo, 847 F.2d 956, 979 (1st Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988).

Where, as here, the indagation concerns a drug ring, the sweep of which is unknown, "the need to allow latitude to eavesdroppers is close to its zenith." Hoffman, 832 F.2d at 1308. In such a case, the wiretap not only serves to "incriminate the known person whose phone is tapped, [but] to learn the identity of the far-flung conspirators and to delineate the contours of the conspiracy." United States v. Quintana, 508 F.2d 867, 874 (7th Cir.1975). Because such conspiracies frequently utilize codes and specialized jargon, making criminal conversation more difficult to detect and decipher, there is yet an added reason for affording investigators some leeway. See Hoffman, 832 F.2d at 1308; United States v. Daly, 535 F.2d 434, 441 (8th Cir.1976); Quintana, 508 F.2d at 874 n. 6. The instant investigation, which focused on an interstate drug ring using encoded communications, was built to such a last: given the nature of the criminal activities and jargon, it was reasonable for the agents to monitor Uribe's telephone almost continuously. See, e.g., Angiulo, ...

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