United States v. Luong , 471 F.3d 1107 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v. No. 01-10468
JOHN THAT LUONG, aka Tony;  D.C. No.
CR-96-00094-
Johnny; Thang; Cuong Quoc Dao;
John Dao; Duong; Thanh; Ah MHP-01
Sinh; That Luong; Ah Sing,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 01-10469
v.
 D.C. No.
CR-96-00094-
HUY CHI LUONG, aka Chi Fei;
Jimmy Luong, MHP-02
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 01-10470
v.  D.C. No.
CR-96-00094-
HOANG AI LE, aka Ah Hoang, MHP-07
Defendant-Appellant.

19773
19774 UNITED STATES v. LUONG
UNITED STATES OF AMERICA,  No. 01-10471
Plaintiff-Appellee, D.C. No.
v.  CR-96-00094-
MADY CHAN, MHP-13
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding
Argued and Submitted
August 15, 2006—San Francisco, California
Filed December 26, 2006
Before: William C. Canby, Jr., David R. Thompson, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Canby
UNITED STATES v. LUONG 19775
COUNSEL
William L. Osterhoudt, San Francisco, California; Dennis P.
Riordan, Riordan & Horgan, San Francisco, California; Gary
K. Dubcoff, San Francisco, California; and George C.
Boisseau, Santa Rosa, California; for the defendants-
appellants.
19776 UNITED STATES v. LUONG
Nina Goodman, Appellate Section, Criminal Division, United
States Department of Justice, Washington, D.C., for the
plaintiff-appellee.
OPINION
CANBY, Circuit Judge:
John That Luong, Huy Chi Luong, Hong Ai Le, and Mady
Chan appeal their convictions and sentences for various
crimes relating to their involvement in a criminal enterprise
that engaged in robberies of computer companies and in her-
oin trafficking.1 In this opinion2 we address only one issue of
statutory interpretation raised by the appellants. The statute in
question authorizes a judge, upon proper showing, to autho-
rize “interception of . . . electronic communications within the
territorial jurisdiction of the court in which the judge is sit-
ting.” 18 U.S.C. § 2518(3). The issue is whether this statute
authorized the district court in the Northern District of Cali-
fornia to authorize interception of communications to and
from a mobile phone used by John Luong when that phone
and its area code were located outside of the court’s territorial
jurisdiction but the government’s listening post was located
within it. We join several of our sister circuits in holding that
the district court had jurisdiction because the intercepted com-
munications were first heard by the government within the
court’s district.
1
We have jurisdiction over the district court’s final judgments under 28
U.S.C. § 1291.
2
We address the appellants’ convictions and sentences, and the remain-
ing issues raised by the appellants, in an unpublished memorandum dispo-
sition filed contemporaneously with this opinion.
UNITED STATES v. LUONG 19777
I. Background
On August 1, 1995, a judge in the Northern District of Cali-
fornia issued an order authorizing the interception of commu-
nications to and from a mobile phone, used by John Luong,
with the number (916) 204-6889. Land line telephones with
the 916 area code are located in the Eastern District of Cali-
fornia, not the Northern District. Both the subscriber’s billing
address and the mobile service provider were located in the
Eastern District of California.
The district court’s order was based on the application of
the United States and a seventy-two page affidavit from FBI
Special Agent Carol Lee. The affidavit contained information
gathered from several confidential sources. Agent Lee
detailed the credibility and reliability of each source. The affi-
davit discussed past and continuing investigations into John
Luong and his associates and stated that a wiretap was needed
because traditional investigative techniques had failed to
reveal the membership of John Luong’s criminal enterprise or
the full scope of its drug dealing activities. The affidavit indi-
cated that, if the district court ordered the wiretap, all of the
intercepted conversations would “first be heard in the North-
ern District of California” and interception “will automati-
cally take place in San Francisco, California, regardless of
where the telephone calls are placed to or from.”
II. Discussion
[1] We review de novo the district court’s interpretation of
statutes. United States v. Cabaccang, 332 F.3d 622, 624-25
(9th Cir. 2003) (en banc). As we have already pointed out,
the governing statute confers jurisdiction on a judge to autho-
rize the “interception of wire, oral, or electronic communica-
tions within the territorial jurisdiction of the court in which
the judge is sitting.” 18 U.S.C. § 2518(3). The appellants
argue that interception occurs only where the telephone is
based or located, and not where the government sets up a lis-
19778 UNITED STATES v. LUONG
tening post where it is first able to hear the intercepted con-
versation. The issue, therefore, is clearly drawn: What
constitutes “interception” within the meaning of section
2518(3)?
[2] A separate statutory section defines “intercept[ion]” as
“the aural or other acquisition of the contents of any wire,
electronic, or oral communication through the use of any elec-
tronic, mechanical, or other device.” 18 U.S.C. § 2510(4).
This definition does not state where an interception occurs or
whether more than one interception point may exist for juris-
dictional purposes.
[3] The most reasonable interpretation of the statutory defi-
nition of interception is that an interception occurs where the
tapped phone is located and where law enforcement officers
first overhear the call. We join at least three of our sister cir-
cuits in so holding. As the Second Circuit reasoned:
It seems clear that when the contents of a wire com-
munication are captured or redirected in any way, an
interception occurs at that time. Such an interception
plainly occurs at or near the situs of the telephone
itself, for the contents of the conversation . . . are
transmitted in one additional direction. Redirection
presupposes interception. . . .
Nonetheless, since the definition of interception
includes the “aural” acquisition of the contents of the
communication, the interception must also be con-
sidered to occur at the place where the redirected
contents are first heard.
United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992);
accord United States v. Ramirez, 112 F.3d 849, 852 (7th Cir.
1997) (concluding that an interception occurs in the jurisdic-
tion where the tapped phone is located, where the second
phone in the conversation is located, and where the scanner
UNITED STATES v. LUONG 19779
used to overhear the call is located); United States v. Denman,
100 F.3d 399, 403 (5th Cir. 1996) (holding that “the intercep-
tion includes both the location of a tapped telephone and the
original listening post”).
[4] The district court accordingly had jurisdiction to autho-
rize the wiretap of Luong’s mobile telephone despite the
phone’s Eastern District area code. Agent Lee’s affidavit
explained that all of the intercepted conversations would “first
be heard” at a listening post “in San Francisco, California,
regardless of where the telephone calls are placed to or from.”
The FBI’s listening post in San Francisco, California was
within the territorial jurisdiction of California’s Northern Dis-
trict. The calls were therefore intercepted within the jurisdic-
tion of the judge of the Northern District of California who
authorized the wiretap, as required by section 2518(3).
III. Conclusion
The district court did not err in denying the motion to sup-
press the wiretap evidence. Its judgment so holding is
AFFIRMED.