US v. Mitro

• Citation: 880 F.2d 1480
• Decision Date: 28 July 1989
• Docket Number: No. 88-1747,88-1751.,88-1747
• Parties: UNITED STATES of America, Appellee, v. Paul A. MITRO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Richard J. DELCOURT, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

880 F.2d 1480

UNITED STATES of America, Appellee, v. Paul A. MITRO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Richard J. DELCOURT, Defendant, Appellant.

Nos. 88-1747, 88-1751.

United States Court of Appeals, First Circuit.

Heard April 6, 1989.

Decided July 28, 1989.

Joseph M. Flak, Boston, Mass., for defendant, appellant Richard J. delcourt.

Thomas P. McCusker, Jr., with whom Law Offices of James J. McCusker, Boston, Mass., was on brief, for defendant, appellant Paul A. Mitro.

Gary S. Katzmann, Asst. U.S. Atty., with whom Jeremiah T. O'Sullivan, U.S. Atty., Boston, Mass., and Robert B. Ellard, Sp. Asst. U.S. Atty., Kingston, N.H., were on brief for the U.S.

Before CAMPBELL, Chief Judge, BREYER and SELYA, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

Defendants, Paul Mitro and Richard Delcourt, entered conditional pleas of guilty pursuant to Fed.R.Crim.P. 11(a)(2) to possession with intent to distribute diazepam and conspiracy to possess with intent to distribute diazepam in violation of 21 U.S.C. §§ 841(a)(1), 846 (1982). Delcourt also entered a conditional plea of guilty to the unlawful use of a telephone in violation of 21 U.S.C. § 843(b) (1982). They appeal from the denial of a motion to suppress evidence derived from a foreign wiretap, and also the denial of a motion to suppress evidence seized pursuant to a search warrant. We affirm the district court.

I. BACKGROUND

In the course of an investigation by the Royal Canadian Mounted Police ("RCMP") into the activities of Richard Delcourt, a Canadian citizen, RCMP constable Yves Durepos obtained authorization from a Canadian court to intercept telephone conversations of Delcourt and his wife at their Quebec home. These interceptions revealed that Delcourt was telephoning someone named "Andy" in Braintree, Massachusetts. Drug Enforcement Agent Joseph Coons was contacted to identify "Andy." The telephone numbers Delcourt had called were traced to Paul Mitro's Braintree residence and the Braintree residence of Lorraine McCarthy, apparently an acquaintance of Mitro. Coons conducted a background check of Mitro with the Braintree police and also placed Mitro under surveillance. Based on the information supplied to him by the RCMP and his own investigation, Coons came to suspect that "Andy" was Paul Mitro and that Mitro was engaged in the illegal distribution of valium (otherwise known as diazepam) with Delcourt.

On November 1, 1987, the RCMP informed Coons that Delcourt might be travelling to Massachusetts to visit Mitro. Between November 1 and 3, Coons and other DEA agents, along with the Braintree police, observed Mitro and Delcourt in a Canadian registered vehicle at the Mitro and McCarthy residences and observed them making frequent use of pay telephones. During this time, the RCMP informed Coons that they had intercepted a telephone conversation from Delcourt to his Quebec residence in which Delcourt had indicated that the Americans were unhappy with the "stuff" and that "Andy still owes for the Vees."

Coons became concerned that Delcourt would soon be returning to Canada. Apparently concerned about the delay that might result in obtaining a search warrant from a federal magistrate, Coons decided to obtain a state search warrant for Mitro's residence. Based on information supplied by Coons, a Braintree police officer prepared an affidavit and a proposed search warrant which was presented to an assistant clerk of the Quincy District Court. After reviewing the affidavit and proposed warrant, the clerk issued a warrant authorizing the search of Mitro, Delcourt, and Mitro's residence for illegal controlled substances, paraphernalia, records and proceeds believed associated with illegal drug activity. DEA agents and Braintree police officers executed this warrant the same day. They found a large quantity of valium tablets at Mitro's residence.

Mitro and Delcourt were arraigned in Quincy District Court on state trafficking charges. For some unknown reason, the state district attorney subsequently decided not to prosecute the state charges against Mitro and Delcourt. Consequently, a federal criminal complaint was filed against defendants, who were subsequently indicted by a federal grand jury. Defendants moved to suppress the evidence derived from the Canadian wiretap and also moved to suppress the evidence seized pursuant to the state search warrant. After holding a suppression hearing, the district court denied both motions. Defendants subsequently entered conditional pleas of guilty, reserving their right to appeal from the denial of their suppression motions.

II. THE CANADIAN WIRETAP

Defendants¹ alleged in the district court that the Canadian wiretap violated their fourth amendment rights and that the evidence derived from the wiretap should be suppressed under the "exclusionary rule." The fourth amendment and the exclusionary rule do not ordinarily apply to foreign searches and seizures. See United States v. Janis, 428 U.S. 433, 455 n. 31, 96 S.Ct. 3021, 3033 n. 31 (1976) ("It is well established, of course, that the exclusionary rule, as a deterrent sanction, is not applicable where a private party or a foreign government commits the offending act."). See generally Note, Evidence Seized in Foreign Searches: When Does the Fourth Amendment Exclusionary Rule Apply?, 25 Wm. & Mary L.Rev. 161 (1983). This court has summarized this general rule and has noted two exceptions:

the "exclusionary rule" does not require the suppression of evidence seized by foreign police agents, for the actions of an American court are unlikely to influence the conduct of foreign police. See United States v. Rose, 570 F.2d 1358, 1361-62 (9th Cir.1978); United States v. Morrow, 537 F.2d 120, 139 (5th Cir.1976), cert. denied sub nom. Martin v. United States, 430 U.S. 956 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977).... There are two well-established exceptions to this rule: (1) where foreign police conduct "shock s the judicial conscience," id. at 139 and (2) where American agents "participated in the foreign search, or ... the foreign officers acted as agents for their American counterparts...." Id.

United States v. Hensel, 699 F.2d 18, 25 (1st Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1317 (1983).

Defendants have not alleged nor is there any indication that American agents participated in the Canadian wiretap or that the RCMP acted as mere agents for DEA. The record is also devoid of any evidence even remotely suggesting that the wiretap or the conduct of the RCMP "shocks the judicial conscience." Quite to the contrary, the RCMP sought and received judicial authorization for the wiretap as provided by Canadian law. See R.S.C. ch. 34, §§ 178.1-178.23. Under section 178, Canadian police may apply ex parte for a wiretap authorization by submitting a written application and affidavit to the appropriate Canadian court setting forth the particulars of the offense and various other elements required by the statute. The application and the affidavit are then placed in a sealed packet, although the authorization is not sealed. In this case, the authorization is valid on its face. It states, as required by the Canadian statute, that 1) the submitted affidavit meets all the requirements of the statute; 2) the authorization is in the best interests of the administration of justice; and 3) other investigative methods have been tried and have failed or are unlikely to succeed. The authorization also restricts the scope of the wiretap by specifying the general identity of persons, as well as the type of communication, that may be intercepted. Thus, there is nothing to suggest that this facially valid wiretap was even illegal, let alone that it shocked the judicial conscience.²

Defendants argue, however, that because they have no access to the sealed application and affidavit they are "effectively precluded from rebutting the validity and admissibility of the wiretapped conversations." Defendants apparently have no standing under Canadian law to seek access to the sealed packet because they are not on trial in Canada. See Atwal v. The Queen, 1988 1 F.C. 154.³ Defendants assert that the appropriate remedy for this situation is either suppression of the evidence derived from the wiretap or an evidentiary hearing in which they could cross-examine the RCMP constable who applied for the wiretap authorization and thus possibly reveal conduct that would shock the judicial conscience.

Defendants' argument is without merit. The government "cannot be charged with wrongdoing for failure to permit inspection" of the wiretap application and affidavit held under seal by a foreign court. United States v. Cotroni, 527 F.2d 708, 712 (2d Cir.1975) (Canadian wiretap recordings admissible even though defendant unable to review other recordings still in possession of Canadian police), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1976). See also United States v. Delaplane, 778 F.2d 570, 573-74 (10th Cir.1985) (affirming district court's denial of motion to suppress Canadian wiretap evidence notwithstanding defendant's claim that his inability to obtain wiretap information required an equitable remedy), cert. denied, 479 U.S. 827, 107 S.Ct. 104, 93 L.Ed.2d 54 (1986). Cf. United States v. Friedman, 593 F.2d 109, 119-20 (9th Cir.1979) (government's failure to produce diary in possession of Chilean government did not violate due process clause, Jencks Act or Fed.R.Crim.P. 16).

Defendants forget how very limited our inquiry into a foreign search may be: only conduct on the part of the foreign police that shocks the judicial conscience could warrant the suppression of foreign-seized evidence.⁴ Circumstances that will shock the conscience are limited to conduct that "not only violates U.S. notions of due process, but also violates fundamental international norms of decency." Saltzburg, The Reach of the Bill of Rights Beyond the Terra Firma of the United States,...