United States v. Bennett

• Decision Date: 11 May 1982
• Docket Number: Crim. No. 82-59.
• Citation: 538 F. Supp. 1045
• Parties: UNITED STATES of America, Plaintiff, v. Frantz BENNETT, Defendant.
• Court: U.S. District Court — District of Puerto Rico

538 F. Supp. 1045

UNITED STATES of America, Plaintiff, v. Frantz BENNETT, Defendant.

Crim. No. 82-59.

United States District Court, D. Puerto Rico.

May 11, 1982.

José R. Aguayo, Asst. U. S. Atty., Hato Rey, P. R., for plaintiff.

Joaquin Monserrate Matienzo, Hato Rey, P. R., for defendant.

DECISION AND ORDER

TORRUELLA, District Judge.

There is pending Defendant's Motion to Suppress and related matters, some of which have previously been ruled upon by the Court. Defendant is charged in a three-count indictment with possession of cocaine with intent to distribute (21 U.S.C. 841(a)(1)), and attempted possession of cocaine and heroin with intent to distribute (21 U.S.C. 846 and 841(a)(1)). The incidents which give rise to the issues before us are as follows:

On March 19, 1982 a meeting took place in Room 652 of the Plaza Dominicana Hotel in Santo Domingo, Dominican Republic. Present at the meeting were Alberto Fernández, a Drug Enforcement Administration (DEA) agent, Allan Bachellier, another DEA agent, who was using the undercover name of "Tony Madrid" throughout this meeting and at other times pertinent hereto, a DEA confidential informant by the name of Díaz (C. I. Díaz), and Defendant. The avowed purpose of this meeting was to secure entry of an airplane loaded with cocaine into the Republic of Haiti. In fact, however, the true purpose of the meeting, as far as DEA was concerned, was to gather evidence against Defendant. Defendant, a citizen of Haiti and the brother-in-law of that country's President, allegedly claimed that he could secure safe entry and exit in and out of Haiti, and provide the necessary "protection" for this operation. In the course of the meeting an agreement was allegedly reached with Defendant as part of which Defendant would travel to Puerto Rico to receive payment for his services and to escort the airplane into Haiti.

After the meeting Defendant left the room and the DEA agents remained. The room in which the meeting took place had been rented by Bachellier under his alias for the purpose of recording the conversation, which in fact was done by DEA Agent Juan Rodríguez from the room next door, also rented by DEA under the name of "Jason Romero", Rodríguez's undercover name.

Thereafter, on March 25, 1982 Defendant called from Haiti to San Juan, Puerto Rico to a DEA undercover telephone number which had been provided to him by Fernández. He informed Fernández that he would arrive in San Juan on the 26th, and asked to be met at the airport. This conversation was recorded by Fernández at the San Juan end.

On March 26, Defendant again called Agent Fernández from Haiti to the San Juan undercover number, but a bad telephone connection forced Fernández to cancel it and call him back. In this conversation, which was again recorded by Fernández, Defendant allegedly invited his San Juan associates to go to Haiti with the cocaine and the money. After some discussion Fernández convinced Defendant to stick to the original plan and to come to Puerto Rico instead.

About three hours later Defendant arrived at San Juan International Airport, where he was met by Agent Fernández and taken to Room 1106 of the Dupont Plaza Hotel, which was again registered in Agent Bachellier's undercover name, "Tony Madrid." As in Santo Domingo, Room 1106 was electronically compromised, with Agent Rodríguez in the room next door recording the conversation. Inside Room 1106 was also located a video recording machine which photographed the parties to the ensuing events. An hour long discussion took place between Bachellier, Fernández and Defendant, during which certain material evidence was allegedly exchanged with Defendant, and final arrangements made regarding entry into Haiti. Defendant then left the room by himself.

Shortly thereafter, just outside the Dupont Plaza Hotel, Defendant was arrested by DEA Agents Danaceck, Nazario and Rodríguez. Immediately after his arrest Agent Danaceck advised Defendant of his rights, reading from a standard DEA card which contains said information. Defendant indicated that he understood and they proceeded into a waiting automobile for the ride to the DEA office. At this point Agent Danaceck again advised Defendant of his rights, with a similar response by Defendant concerning his understanding of the same.

Thereafter a conversation ensued during which Defendant allegedly made various incriminating statements which the Government will seek to offer into evidence at the trial. Defendant remained in custody from approximately 5:00 P.M., when he was arrested, to about 10:00 P.M., when a Magistrate was finally located and the Defendant brought before him.

Defendant moves for suppression of the recordings alleging that they were not authorized pursuant to the so-called Federal Wiretapping Act (Act), 18 U.S.C. 2510 et seq. As to the conversations that took place in the Dominican Republic, and those recorded in San Juan but in which the other party, Defendant, was located in Haiti, Defendant claims that such interceptions could not legally be authorized by a United States court and thus should be suppressed.

Turning first to the Haitian communications, we find that the law that controls the legality of an interception is the law of the place wherein the interception takes place. United States v. Cotroni, 527 F.2d 708, 711 (C.A.2, 1975), cert. den., 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1976). We note in passing, however, that there is no contention that such interception is in any way prohibited by Haitian law. In this case the Haitian communications were intercepted in Puerto Rico and it is thus the law here that applies. Although the lex loci of the Commonwealth of Puerto Rico prohibits the interception of such communications,¹ nevertheless 18 U.S.C. 2511(2)(c) of the Act² permits such interceptions if consent is given to the same by at least one of the parties to the communication. It has been consistently held that the provisions of the Act permitting consensual interception of communications are paramount over inconsistent state law. United States v. Escobedo, 430 F.2d 603, 607 (C.A.7, 1970), cert. den., 402 U.S. 951, 91 S.Ct. 1632, 29 L.Ed.2d 122 (1971); United States v. McGuire, 381 F.2d 306 (C.A.2, 1967), cert. den., 389 U.S. 1053, 88 S.Ct. 800, 19 L.Ed.2d 848 (1968); United States v. Pérez, 465 F.Supp. 1284 (D.C.P.R., 1979). The Haitian conversations are consensual pursuant to 18 U.S.C. 2511(2)(c), and are thus admissible in evidence. 18 U.S.C. 2515.

As to the Dominican interceptions, Defendant's arguments are, to say the least, difficult to follow. First of all, there is no question but that all the parties to the communication except Defendant, agreed to the interception. Secondly, Defendant makes no claim to the illegality of such interceptions pursuant to the lex loci of the Dominican Republic. That in itself should be sufficient to validate the interception according to the tenets of Cotroni. However, Defendant contends, in what we can only describe as convoluted logic, that such action is illegal because no court of the United States could authorize such an interception outside its jurisdiction. The short answer to that is that it is true that no United States court could authorize such action, but that it does not follow that the interception is therefore illegal. Simply stated, the Act is inapplicable extra-territorially. United States v. Toscanino, 500 F.2d 267, 279, reh. den., 504 F.2d 1380 (C.A.2, 1974); United States v. Cotroni, supra, Stowe v. Devoy, 588 F.2d 336, 341 (C.A.2, 1978), cert. den., 442 U.S. 931, 99 S.Ct. 2862, 61 L.Ed.2d 299 (1979); Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144 (D.C. D.C., 1976). See also 1968 U.S.Code Cong. & Adm.News, 90th Cong. 2d Sess. pp. 2112, 2178. So are its prohibitions. Noncompliance with an inapplicable statute is irrelevant. That is why in Cotroni, Stowe and Berlin Democratic Club, the intercepts outside the United States without warrant or compliance with the Act were held proper and admissible evidence. Lastly, even assuming the applicability of the Fourth Amendment to the Dominican factual situation, a contention which is very much in doubt (see Note, "Foreign Security Surveillance and The Fourth Amendment", 87 H.L.R. 976, 988 (1974)), the intercepts in question are clearly within permissible governmental action, Defendant lacking an expectancy of privacy as to the recorded conversations. United States v. Craig, 573 F.2d 455, 474 (C.A.7, 1977), cert. den., 439 U.S. 820, 99 S.Ct. 82, 58 L.Ed.2d 110 (1978).

Defendant seeks suppression of the video and voice recordings made during the Dupont Plaza conversations relying on United States v. Padilla, 520 F.2d 526 (C.A.1, 1975). This reliance is ill-conceived. In that case, DEA rented two...