United States v. Maurice Fregia ( 2021 )

FILED
NOT FOR PUBLICATION
NOV 2 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30158
Plaintiff-Appellee, DC No. 1:18-cr-0058-SPW
v.
MEMORANDUM*
MAURICE JOSEPH FREGIA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted October 4, 2021
Seattle, Washington
Before: TASHIMA, M. SMITH, and NGUYEN, Circuit Judges.
Maurice Fregia appeals from the judgment entered following his conviction,
after trial by jury, on three counts: (1) conspiracy to possess with intent to
distribute methamphetamine, 21 U.S.C. §§ 841(a)(1), 846; (2) possession with
intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1); and (3) possession of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Reviewing de novo, United States v. Korte, 918 F.3d 750, 753 (9th
Cir.), cert. denied,140 S.Ct. 264 (2019), we conclude that the district court did not
err in denying Fregia’s motion to suppress evidence. Fregia argues that the orders
authorizing law enforcement to install pen registers and trap and trace devices, and
to obtain his cell site location information (“CSLI”) were invalid because they did
not contain “geographic limits,” Mont. Code Ann. § 46-4-403(2)(c), and that the
orders thus were not “issued by a duly authorized court,” Mont. Code Ann. § 46-5-
110(1)(a).
The orders, however, complied with the requirements of the Fourth
Amendment, which provides that “no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const. amend. IV. The
district court thus properly denied Fregia’s motion to suppress. See United States
v. Hurd, 499 F.3d 963, 967– 68 (9th Cir. 2007) (“Because a neutral and detached
judge signed the warrant, and because that warrant was supported by a sworn
affidavit clearly establishing probable cause and describing with particularity the
places to be searched and the items to be seized, it met all of the constitutional
2
requirements for a valid search warrant.”); United States v. Miranda-Guerena, 445
F.3d 1233, 1237 (9th Cir. 2006) (in a federal prosecution, the relevant question was
“not whether the stop violated Arizona law,” but “whether the stop violated the
Fourth Amendment”).
We note that the prosecutors proceeded under the incorrect state statute to
obtain Fregia’s CSLI, relying on Montana Code § 46-4-403, which addresses the
installation of pen register and trap and trace devices.1 The acquisition of CSLI is
addressed by § 46-5-110, which states that “a government entity may not obtain
the location information of an electronic device without a search warrant issued by
a duly authorized court.” Mont. Code Ann. § 46-5-110(1)(a). Despite the fact that
the prosecutors sought Fregia’s CSLI under the incorrect statute, the orders were
supported by affidavits establishing probable cause, a finding that Fregia does not
1
The prosecutors did request authority to install and use “pen-trap
devices,” but they also sought Fregia’s CSLI.
3
dispute.2 By establishing probable cause, the orders complied with the
requirements of a search warrant under Montana law. See Mont. Code Ann. § 46-
5-221(2). In any event, a violation of state warrant procedures does not by itself
require suppression in federal court. See United States v. Cormier, 220 F.3d 1103,
1111 (9th Cir. 2000) (“The general rule . . . is that evidence will only be excluded
in federal court when it violates federal protections, such as those contained in the
Fourth Amendment, and not in cases where it is tainted solely under state law.”).
2. Fregia contends that the district court abused its discretion in denying
his request for new counsel without making an inquiry into his allegations. We
disagree. The district court did not deny Fregia’s motion to substitute counsel.
Instead, the court considered the motion withdrawn based on his counsel’s
representation that Fregia had changed his mind and wanted to proceed to trial.
Fregia then proceeded to trial with that counsel and never raised his earlier motion
until after the trial was over.
2
Even if the orders did not comply with state law because they were
issued under the incorrect statute, the good faith exception to the exclusionary rule
applies because there is no evidence that the officers acted in bad faith. See United
States v. Henderson, 906 F.3d 1109, 1119–20 (9th Cir. 2018) (explaining that
“application of the good faith exception is permitted where a warrant is void
because of a magistrate judge’s jurisdictional violation, so long as the executing
officers had an objectively reasonable belief that the warrant was valid,” and
holding that the good faith exception barred suppression of the evidence because
there was no evidence officers acted in bad faith).
4
Fregia relies on Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000) (en banc), but
Schell is distinguishable. In Schell, the petitioner presented evidence that, before
trial, he asked his attorney about his pending motion for substitute counsel. The
motion had not been ruled on, but his attorney told him that “the motion must have
been denied because she was still his attorney.” Id. at 1021.
However, Schell only remanded for the habeas court to hold an evidentiary
hearing on whether any conflict amounted to ineffective assistance. Id. at 1027.
Schell said that an inquiry should have been made when a motion for substitute
counsel went unaddressed, id. at 1025, but it did not involve the situation here,
where a motion for substitute counsel was withdrawn.3
The judgment of conviction is AFFIRMED.4
3
Fregia’s reliance on United States v. Velazquez, 855 F.3d 1021 (9th
Cir. 2017), also is unavailing. There, the defendant “clearly and consistently
raised concerns about her representation,” but the court denied the substitution
motion without inquiry. Id. at 1035. Unlike in Velazquez, Fregia did not raise the
subject of his withdrawn motion again until after the verdict was rendered.
4
We decline to address Fregia’s claim that his counsel rendered
ineffective assistance. See United States v. Liu, 731 F.3d 982, 995 (9th Cir. 2013)
(“As a general rule, we do not review challenges to the effectiveness of defense
counsel on direct appeal.”).
5