United States v. Wahchumwah

• Decision Date: 04 March 2013
• Docket Number: No. 11–30101.,11–30101.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ricky S. WAHCHUMWAH, aka Ricky Sam Wahchumwah, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

710 F.3d 862

UNITED STATES of America, Plaintiff–Appellee,

v.Ricky S. WAHCHUMWAH, aka Ricky Sam Wahchumwah, Defendant–Appellant.

No. 11–30101.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Oct. 9, 2012.

Filed Nov. 27, 2012.

Amended March 4, 2013.

Robert M. Seines (argued), Liberty Lake, WA, for Defendant–Appellant.

Michael C. Ormsby, United States Attorney, and Timothy J. Ohms, Assistant United States Attorney (argued), United States Attorney's Office for the Eastern District of Washington, Spokane, WA; Katherine Wade Hazard, Environmental and Natural Resources Division, United States Department of Justice, Washington, D.C., for Plaintiff–Appellee.

Hanni M. Fakhoury, Electronic Frontier Foundation, San Francisco, CA, for Amicus Curiae.

Appeal from the United States District Court for the Eastern District of Washington, Edward F. Shea, District Judge, Presiding. D.C. No. 2:09–cr–02035–EFS–1.

Before: ALEX KOZINSKI, Chief Judge, A. WALLACE TASHIMA and MILAN D. SMITH, JR., Circuit Judges.

ORDER

The opinion filed November 27, 2012, and published at 2012 WL 5951624, is amended as follows:

In the third paragraph on page *3, add the following footnote after the sentence ending with :

a Fourth Amendment violation under the trespass theory articulated in Jones, Wahchumwah did not raise this argument in the briefs he filed with our court. Generally, arguments not raised in a party's opening brief are deemed waived, Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999), and the court will not consider arguments raised only in amicus briefs. See Chaker v. Crogan, 428 F.3d 1215, 1220 (9th Cir.2005). Because Wahchumwah has not argued that a Fourth Amendment violation under the trespass theory articulated in Jones occurred in this case, that issue is not properly before us, and we express no opinion concerning it.>

With this amendment, the panel has unanimously voted to deny the petition for rehearing. Chief Judge Kozinski and Judge M. Smith have voted to deny the petition for rehearing en banc, and Judge Tashima so recommends.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it. Fed. R.App. P. 35(f).

The petition for rehearing and the petition for rehearing en banc (Docket No. 50) are therefore DENIED. No further petitions for panel or en banc rehearing will be entertained in this case.

OPINION

M. SMITH, Circuit Judge:

Defendant–Appellant Ricky Wahchumwah appeals his jury conviction for offenses relating to the sale of eagle parts. He contends that his Fourth Amendment rights were violated when an undercover agent used a concealed audio-video device to record an illegal transaction Wahchumwah conducted in his home. We reject this argument because the Fourth Amendment's protection does not extend to information that a person voluntarily exposes to a government agent, including an undercover agent. See Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). We also reject Wahchumwah's Confrontation Clause challenge, and his objection to the admission of certain photographs of eagles and other bird parts at his trial under Federal Rule of Evidence 403. However, we reverse Wahchumwah's conviction on Counts 2 or 3 and Counts 4 or 5 because those counts are multiplicitous.¹

FACTUAL AND PROCEDURAL BACKGROUND

United States Fish and Wildlife Service agents began an undercover investigation of Wahchumwah based on anonymous complaints that he was selling eagle parts. As part of this investigation, Special Agent Robert Romero began developing a rapport with Wahchumwah in April 2008, at a powwow in Missoula, Montana. Romero claimed to have an interest in eagle feathers, and showed Wahchumwah a Golden Eagle tail he had brought with him. Later that evening, Romero bought a set of eagle wings from Wahchumwah for $400.

The following month, Romero sent Wahchumwah a text message asking if Wahchumwah had any immature Golden Eagle tail feathers. Wahchumwah responded in the affirmative, and sent Romero photos depicting three Golden Eagle tails. The exchange culminated in Romero's purchasing a Golden Eagle tail from Wahchumwah.

On October 7, 2008, Romero sent Wahchumwah a text message stating that he would be visiting family who lived near Wahchumwah the following week and would like to stop by Wahchumwah's home. Wahchumwah, agreed, and a week later Romero visited Wahchumwah in his residence wearing a concealed audio-video recording device. During the visit, Wahchumwah showed Romero a blue spiral notebook containing a number of eagle plumes. Romero examined the plumes and purchased a pair for $100. During the visit, Wahchumwah mentioned to Romero that Wahchumwah had previously bought eagle tails from a friend.

On March 11, 2009, a team of Fish and Wildlife Service agents executed a search warrant on Wahchumwah's home and its outbuildings. Wahchumwah was arrested.

Count 1 of the Superseding Indictment charged Wahchumwah with conspiracy in violation of 18 U.S.C. § 371. Count 2 charged him with offering to sell Golden Eagle tails in violation of the Bald and Golden Eagle Protection Act, 16 U.S.C. § 668(a). Count 3 charged Wahchumwah with the sale of a Golden Eagle tail in violation of the Lacey Act, 16 U.S.C. §§ 3372(a)(1) and 3373(d)(1)(B). Both Counts 4 and 5 charged him with violating the Bald and Golden Eagle Protection Act, 16 U.S.C. § 668(a)—Count 4 for offering to sell eagle plumes and Count 5 for the subsequent sale of the plumes.

The jury ultimately convicted Wahchumwah on all counts, and the district court sentenced him to 30 days in prison, followed by two years of supervised release. Wahchumwah timely appealed his conviction. We have jurisdiction under 28 U.S.C. § 1291.

STANDARDS OF REVIEW

We review de novo the district court's decision regarding Wahchumwah's claim that the audio-video recording violated his Fourth Amendment rights. United States v. Nerber, 222 F.3d 597, 599 (9th Cir.2000). We similarly review Wahchumwah's claims of multiplicity de novo. United States v. McKittrick, 142 F.3d 1170, 1176 (9th Cir.1998).

We review the district court's denial of Wahchumwah's motion in limine regarding the admission at his trial of eagle photographs and photographs of other migratory birds, for abuse of discretion. United States v. Merino–Balderrama, 146 F.3d 758, 761 (9th Cir.1998).

Finally, we review Wahchumwah's Confrontation Clause claim de novo, subject to harmless error analysis. United States v. Bridgeforth, 441 F.3d 864, 868 (9th Cir.2006).

DISCUSSION

1. The Fourth Amendment and audio-video recordings

Wahchumwah contends that the warrantless audio-video recording of an illicit sales transaction inside his home by SpecialAgent Romero violated his Fourth Amendment rights.

“Our Fourth Amendment analysis ... ask[s] whether the individual ... has exhibited an actual expectation of privacy ... [and] whether the individual's expectation of privacy is ‘one that society is prepared to recognize as reasonable.’ ” Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). However, that expectation of privacy does not extend to “[w]hat a person knowingly exposes to the public, even in his own home or office.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (citations omitted).

The Supreme Court has also determined that a defendant generally has no privacy interest in that which he voluntarily reveals to a government agent. Hoffa, 385 U.S. at 300–02, 87 S.Ct. 408. A government agent may also make an audio recording of a suspect's statements, and those audio recordings, made with the consent of the government agent, do not require a warrant. United States v. White, 401 U.S. 745, 749–51, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (plurality opinion); see also18 U.S.C. § 2511(2)(c) (expressly authorizing audio recordings with one party's consent).

We are not the first circuit to address the Fourth Amendment implications of an undercover government agent using an audio-video device to collect evidence in a home. In United States v. Brathwaite, 458 F.3d 376, 380–81 (5th Cir.2006), the Fifth Circuit held that a confidential informant's use of a hidden audio-video device to record meetings at the defendant's residence was not a “search” within the meaning of the Fourth Amendment. See also United States v. Davis, 326 F.3d 361, 366 (2d Cir.2003) (same); United States v. Lee, 359 F.3d 194, 199, 203 (3d Cir.2004) (use of an audio-video recording device in the defendant's hotel room did not violate the Fourth Amendment, while consenting informant, who had rented the room for the defendant, was present).

We are persuaded that it is not “constitutionally relevant” whether an informant utilizes an audio-video device, rather than merely an audio recording device, to record activities occurring inside a home, into which the informer has been invited. Brathwaite, 458 F.3d at 380. When Wahchumwah invited Agent Romero into his home, he forfeited his expectation of privacy as to those areas that were “knowingly expose[d] to” Agent Romero. Katz, 389 U.S. at 351, 88 S.Ct. 507;see also Davis, 326 F.3d at 366. Wahchumwah cannot reasonably argue that the recording violates his legitimate privacy interests when it reveals no more than what was already visible to the agent. “If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.” White, 401 U.S. at 751, 91 S.Ct. 1122.

Wahchumwah relies on United States v. Nerber, 222 F.3d 597 (9th Cir.2000), where we noted that “we suspect an informant's...