United States v. Getto

11-1237-cr
United States of America v. Getto
In the
United States Court of Appeals
For the Second Circuit
________
No. 11-1237-cr
UNITED STATES OF AMERICA,
Appellee,
v.
MATTHEW GETTO,
Defendant-Appellant.
________
Appeal from the United States District Court
for the Southern District of New York.
No. 09 CR 667 (HB) ― Harold Baer, Jr., Judge.
________
ARGUED: OCTOBER 24, 2012
DECIDED: SEPTEMBER 9, 2013
________
Before: CABRANES, SACK and CARNEY, Circuit Judges.
________
2 No. 11-1237-cr
In this appeal we consider two issues: (1) whether
the United States District Court for the Southern District
of New York (Harold Baer, Jr., Judge) erred in denying
the motion of defendant-appellant Matthew Getto, an
American citizen, to suppress evidence obtained
through searches and surveillance undertaken in Israel
by the Israeli National Police following a request by
American law enforcement pursuant to a mutual legal
assistance treaty; and (2) whether the District Court
committed procedural error in calculating Getto’s
sentence.
We hold that ongoing collaboration between an
American law enforcement agency and its foreign
counterpart in the course of parallel investigations does
not—without American control, direction, or an intent
to evade the Constitution—give rise to a relationship
between the two entities sufficient to apply the
exclusionary rule to evidence obtained abroad by
foreign law enforcement. We also hold that, in the
circumstances presented, the alleged warrantless
searches and surveillance do not shock the judicial
conscience. As a result, the District Court correctly
denied Getto’s motion to suppress the evidence
gathered through foreign searches and surveillance.
We further conclude that the District Court
committed procedural error by failing to explain
adequately the sentence it imposed. Accordingly, we
AFFIRM the judgment of conviction in all respects,
except for the sentence; and REMAND the cause to the
District Court with instructions to vacate Getto’s
3 No. 11-1237-cr
sentence and resentence him in a manner consistent
with this opinion.
________
STEPHANIE M. CARVLIN, Law Office
of Stephanie M. Carvlin, New York,
NY, for Matthew Getto.
STEVE C. LEE (Avi Weitzman, Justin
S. Weddle, Assistant United States
Attorneys, on the brief), Assistant
United States Attorney, for Preet
Bharara, United States Attorney for
the Southern District of New York,
for the United States of America.
________
JOSÉ A. CABRANES, Circuit Judge:
Getto, an American citizen, appeals from a March
29, 2011 judgment of conviction entered by the United
States District Court for the Southern District of New
York (Harold Baer, Jr., Judge), sentencing Getto to 150
months’ imprisonment and imposing restitution in the
amount of $8,200,000. We consider: (1) whether the
District Court erred in denying defendant Matthew
Getto’s motion to suppress evidence obtained through
searches and surveillance undertaken in Israel by the
Israeli National Police (“INP”), following a Mutual
Legal Assistance Treaty (“MLAT”) request by American
law enforcement; and (2) whether the District Court
4 No. 11-1237-cr
committed procedural error in calculating Getto’s
sentence.
We hold that ongoing collaboration between an
American law enforcement agency and its foreign
counterpart in the course of parallel investigations does
not—without American control, direction, or an intent
to evade the Constitution—give rise to a relationship
sufficient to apply the exclusionary rule to evidence
obtained abroad by foreign law enforcement.
Consequently, the District Court correctly denied
Getto’s motion to suppress the evidence gathered
through foreign searches and surveillance. We further
conclude that the District Court committed procedural
error in failing adequately to explain the sentence it
imposed. Accordingly, we affirm Getto’s conviction, but
remand the cause to the District Court with instructions
to vacate Getto’s sentence and resentence him in a
manner consistent with this opinion.
I. BACKGROUND
Following an October 18, 2010 bench trial on
stipulated facts, Getto was convicted of a single count of
conspiracy to commit mail fraud and wire fraud
through telemarketing, in violation of 18 U.S.C. §§ 1349,
2326(2). Getto’s conviction stemmed from his
involvement in a conspiracy that had defrauded
American victims through a lottery telemarketing
scheme operated out of three so-called “boiler rooms” at
different locations in Israel. A member of the conspiracy
would purchase batches of lottery tickets containing the
5 No. 11-1237-cr
contact information of lottery entrants, which lotteries
and sweepstakes typically sell to legitimate businesses
for marketing purposes. The conspirators, billing
themselves as lawyers or other staff working for a
fictional lottery, then called unsuspecting lottery
entrants and told them that they had won substantial
cash prizes in an international sweepstakes. Under this
guise, the conspirators would gather further
information about the lottery entrants—such as their
age and finances—to target, in particular, wealthy,
elderly victims. At the last step, they would tell their
targets that certain “taxes and fees” needed to be paid at
the outset. The unwitting victims would then be asked
to send the sums to the conspirators in the hopes of
obtaining the phantom cash prize.
The workers in the three boiler rooms were
organized into groups, based on function, with
corresponding levels of compensation. “Qualifiers”
would call the victims in the first instance to obtain
personal and financial information.1 If the victims met
certain criteria, their information was then passed along
to “Shooters.” Shooters had the more delicate task of
informing the victims that they had won a prize and of
persuading them to send money. To do this, Shooters
would often pose as employees of a fake law firm or as
officials from the Internal Revenue Service, even going
so far as faxing their targets fraudulent documents as
1 Qualifiers were paid 5% of the gross proceeds obtained from
their victims and a daily salary equivalent to $50.
6 No. 11-1237-cr
part of the ruse.2 Shooters would also often repeatedly
bilk the same victims, claiming, for instance, that the
prize had doubled and additional fees needed to be
paid.3 The operations at each boiler room were
ultimately overseen by “Managers,” who kept records,
distributed proceeds, and assisted in swindling the
victims.
Getto joined the conspiracy in October 2007, as a
Shooter in a boiler room on Ha’Arad Street in Tel Aviv,
Israel (“Ha’Arad room”). At the time, there was only
one other boiler room, which was located in Eilat, Israel
(“Eilat room”). In March 2009, Getto leased an
additional boiler room, located on Ha’Negev Street in
Tel Aviv (“Ha’Negev room”). He served as both a
Manager and a Shooter in the Ha’Negev room; he also
had an ownership stake in the Ha’Negev room, which
entitled him to a greater share of its profits.
Sometime in late 2008, based on a tip from a
witness in the United States, the Federal Bureau of
Investigation (“FBI”) initiated an investigation into the
conspiracy. Operating undercover, FBI agents planted
“dummy” lottery tickets containing their own contact
information in shipments bound for an identified
conspirator, and posed as victims when subsequently
contacted by members of the conspiracy in early 2009.
2 Shooters were paid a commission ranging from 20-25% of the
gross proceeds obtained from their victims.
3 In this manner, some elderly victims ultimately lost hundreds
of thousands of dollars to defendant and his confederates.
7 No. 11-1237-cr
This tactic allowed the agents to trace the telephone
numbers and bank accounts used by the conspirators.
On April 20, 2009, American law enforcement
authorities filed a request, pursuant to the MLAT
between the United States and Israel4 for the Israeli
National Police to investigate the conspiracy. As part of
the MLAT request, the FBI provided the INP with the
details of the investigation in the United States,
including Israeli phone numbers belonging to suspected
conspirators. Using this information, the INP conducted
an investigation that began by identifying a “SIM”5 card
associated with one of the suspects’ phone numbers,
and by interviewing employees at Tel Aviv restaurants
called on the number (who directed the INP to the
address of the Ha’Negev boiler room) and the
superintendent of the building where the Ha’Negev
room was located. The INP then sought, and received,
Israeli court authorization to install a clandestine
surveillance device in the Ha’Negev room and to search
it. Based in part on the evidence gathered from the
Ha’Negev room, Getto was arrested in the United States
in July 2009.
4 The Treaty with Israel on Mutual Legal Assistance in Criminal
Matters entered into force on May 25, 1999. See Treaty with Israel on
Mutual Legal Assistance in Criminal Matters, U.S.-Isr., Jan. 26, 1998, S.
Treaty Doc. No. 105-40, 1998 WL 1784226. The Treaty provides that the
United States and Israel “shall provide mutual assistance . . . in
connection with the investigation, prosecution, and prevention of
offenses, and in proceedings related to criminal matters.” Id. at *8.
5 “A SIM, or ‘security identity module,’ card is the device within
a phone that contains the unique information identifying a particular
subscriber.” United States v. Moreno, 701 F.3d 64, 71 n.9 (2d Cir. 2012)
(internal quotation marks omitted).
8 No. 11-1237-cr
Before the District Court, Getto moved to
suppress the evidence gathered by the INP as
inadmissible. He claimed that, although evidence
obtained abroad by foreign law officials is not
ordinarily subject to suppression, he was entitled to
exclusion of the evidence because (1) the INP was
working jointly with the FBI, and (2) “the actions of the
INP in obtaining the evidence were sufficient[ly]
egregious to trigger application of the Fourth
Amendment.” Appellant’s Br. 9. On August 25, 2010,
the District Court denied the defendant’s motion to
suppress without an evidentiary hearing. United States
v. Getto, No. 09 CR 667(HB), 2010 WL 3467860 (S.D.N.Y.
Aug. 25, 2010). Following a bench trial on stipulated
facts, the District Court found Getto guilty on October
28, 2010. United States v. Getto, No. 09 CR 667(HB), 2010
WL 4449514 (S.D.N.Y. Oct. 28, 2010). On March 25, 2011,
the District Court sentenced Getto to a term of 150
months’ imprisonment, followed by three years’
supervised release, and restitution in the amount of
$8,200,000, a sum based on the loss amount and the
number of victims swindled by workers in all three
boiler rooms.
This timely appeal followed.
II. DISCUSSION
Getto asserts two claims on appeal: (1) the District
Court should have granted his motion to suppress the
9 No. 11-1237-cr
foreign evidence6; and (2) the District Court committed
procedural error by sentencing him, without sufficient
explanation, based on the offense conduct of
conspirators in all three boiler rooms. We consider each
claim in turn.
A. Suppression of Foreign Evidence
Our “standard of review for evaluating the
district court’s ruling on a suppression motion is clear
error as to the district court’s factual findings, viewing
the evidence in the light most favorable to the
government, and de novo as to questions of law.” United
States v. Voustianiouk, 685 F.3d 206, 210 (2d Cir. 2012).
We recently had occasion to review the scope of
the Fourth Amendment’s exclusionary rule with respect
to foreign police actions and held that “suppression is
generally not required when the evidence at issue is
obtained by foreign law enforcement officials.”7 United
6 Getto also argues that the District Court should at least have
held an evidentiary hearing prior to ruling on his motion to suppress.
We review a denial of an evidentiary hearing for an abuse of discretion,
United States v. Bonventre, 720 F.3d 126, 128 (2d Cir. 2013), and “an
evidentiary hearing on a motion to suppress ordinarily is required if the
moving papers are sufficiently definite, specific, detailed, and
nonconjectural to enable the court to conclude that contested issues of
fact going to the validity of the search are in question,” In re Terrorist
Bombings of U.S. Embassies in East Africa, 552 F.3d 157, 165 (2d Cir. 2008).
Because we hold that Getto’s allegations, even if assumed to be true,
would not require suppression, we also conclude that the District Court
did not abuse its discretion in declining to hold an evidentiary hearing.
7 We also noted the longstanding history and purpose of the
rule, observing that
10 No. 11-1237-cr
[m]ore than two decades ago, we held that “[w]hen
conducted in this country, wiretaps by federal officials
are largely governed by Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, see 18 U.S.C. §§
2510-2520,” but that this statute “does not apply outside
the United States.” [United States v. ]Maturo, 982 F.2d
[57,] 60 [(2d Cir. 1992)]. It is also well-established that
the Fourth Amendment’s exclusionary rule, which
requires that evidence seized in violation of the Fourth
Amendment must be suppressed, generally does not
apply to evidence obtained by searches abroad
conducted by foreign officials. See United States v. Janis,
428 U.S. 433, 455 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.”). We
held as long ago as 1975 that “information furnished [to]
American officials by foreign police need not be
excluded simply because the procedures followed in
securing it did not fully comply with our nation’s
constitutional requirements.” United States v. Cotroni, 527
F.2d 708, 711 (2d Cir. 1975). This is so even when “the
persons arrested and from whom the evidence is seized
are American citizens.” Stowe v. Devoy, 588 F.2d 336, 341
(2d Cir. 1978). Significantly, in this context, the Fourth
Amendment’s exclusionary rule does not serve the
deterrence purpose for which it was designed because
“the actions of an American court are unlikely to
influence the conduct of foreign police.” United States v.
Valdivia, 680 F.3d 33, 51 (1st Cir. 2012) (quotation marks
omitted); see also Cotroni, 527 F.2d at 712 (“The
exclusionary rule is intended to inculcate a respect for
the Constitution in the police of our own nation. Since it
has little if any deterrent effect upon foreign police, it is
seldom used to bar their work product.” (internal
citations omitted)); United States v. Barona, 56 F.3d 1087,
1091 (9th Cir. 1995) (“Neither our Fourth Amendment
nor the judicially created exclusionary rule applies to
acts of foreign officials.” (quotation marks and alteration
omitted)); United States v. Mount, 757 F.2d 1315, 1317-18
11 No. 11-1237-cr
States v. Lee, --- F.3d ----, 2013 WL 2450533, at *4 (2d Cir.
June 7, 2013); see also United States v. Busic, 592 F.2d 13,
23 (2d Cir. 1978) (“[T]he Fourth Amendment and its
exclusionary rule do not apply to the law enforcement
activities of foreign authorities acting in their own
country.”). In reaffirming the general rule against
suppressing evidence collected by foreign law
enforcement authorities abroad—a rule occasionally
referred to as the “international silver platter doctrine,”
see Lee, 2013 WL 2450533, at *3 n.3 (noting “the
substantive viability of the international silver platter
doctrine, if not the clarity of its moniker”)—we also
noted our recognition of “two circumstances where
evidence obtained in a foreign jurisdiction may be
excluded[:] [f]irst, where the conduct of foreign officials
in acquiring the evidence is so extreme that it shocks the
judicial conscience and second, where cooperation with
foreign law enforcement officials may implicate
constitutional restrictions.” Id. at *4 (internal quotations
marks and alterations omitted). On appeal, Getto
concedes the continuing vitality of the general rule, but
claims that the facts of the instant case require
suppression of the fruits of the search on the basis of
both exceptions set forth above. Appellant’s Br. 43.
We first consider Getto’s claim that the INP’s
conduct shocks the judicial conscience, and then turn to
(D.C. Cir. 1985) (“[T]he exclusionary rule does not
normally apply to foreign searches conducted by foreign
officials.”).
United States v. Lee, --- F.3d ----, 2013 WL 2450533, at *3 (2d Cir. June 7,
2013).
12 No. 11-1237-cr
the issue of whether the INP’s parallel investigation,
conducted to assist in the American investigation,
demonstrates “cooperation” sufficient to trigger the
Fourth Amendment’s exclusionary rule. Third, we also
consider the applicability of the so-called “joint
venture” doctrine to cases where a defendant seeks to
suppress evidence on the basis of alleged Fourth
Amendment violations abroad. We observe, by way of
preface, that even if the Fourth Amendment’s
exclusionary rule were to apply here, the evidence need
not be suppressed unless the foreign search was
unreasonable. See In re Terrorist Bombings of U.S.
Embassies in East Africa, 552 F.3d 157, 167 (2d Cir. 2008)
(“[T]he Fourth Amendment’s warrant requirement does
not govern searches conducted abroad by U.S. agents;
such searches of U.S. citizens need only satisfy the
Fourth Amendment’s requirement of reasonableness.”).
i. “Shocks the Conscience”
Defendant argues that the INP’s conduct meets
the threshold for “shock[ing] the judicial conscience.”
Lee, 2013 WL 2450533, at *4. Specifically, he claims that
the INP searched the Ha’Negev room before it had
obtained a warrant and that the INP concealed this fact
by later lying in its warrant application. Appellant’s Br.
41. In support of this contention, defendant proffered
before the District Court that he had noticed
“suspicious activity consistent with a break in,”
including that a security camera at the Ha’Negev boiler
room had been turned off, items in the room had been
rearranged, and a door handle had been broken. Id.13 No. 11-1237-cr
Getto also disputes the INP’s account of its
investigation, see Part I, ante, claiming that workers at
the boiler room did not use telephones with “SIM”
cards, see note 5 and accompanying text, ante, and, in
any event, did not use their telephones for delivery
service from Tel Aviv restaurants. Appellant’s Br. 50.
Even accepting, arguendo, the credibility of
Getto’s contested allegations—which the District Court
characterized as “speculative,” Getto, 2010 WL 3467860,
at *3—we find them insufficient to meet the high
standard necessary to “shock the judicial conscience”
recognized by our court and by others in transnational
law enforcement cases. In the due process context, we
have explained that conduct does not shock the judicial
conscience when it is “simply illegal”; rather, it must be
“egregious.” United States ex rel. Lujan v. Gengler, 510
F.2d 62, 66 (2d Cir. 1975); cf. United States v. Alvarez-
Machain, 504 U.S. 655, 661 (1992) (applying the “Ker-
Frisbie” doctrine—“‘that the power of a court to try a
person for crime is not impaired by the fact that he had
been brought within the court’s jurisdiction by reason of
a forcible abduction’”—to an abduction abroad of a
foreign citizen that was authorized by U.S. officials
(quoting Frisbie v. Collins, 342 U.S. 519, 522 (1952))).8 We
8 Interpreting the decision in Ker v. People of State of Illinois, 119
U.S. 436 (1886), and related authority, the first Justice John Marshall
Harlan long ago observed that, almost without exception, “there is
nothing in the Constitution, treaties, or laws of the United States which
exempts an offender, brought before the courts of a state for an offense
against its laws, from trial and punishment, even though brought from
another state by unlawful violence, or by abuse of legal process.”
Pettibone v. Nichols, 203 U.S. 192, 213 (1906) (internal quotation marks
omitted).
14 No. 11-1237-cr
have accordingly held that conduct did not shock the
judicial conscience when, for example, there was no act
“of torture, terror, or custodial interrogation of any
kind,” Gengler, 510 F.2d at 66, or when there was “no
claim of ‘rubbing pepper in the eyes,’ or other shocking
conduct,” United States v. Nagelberg, 434 F.2d 585, 587
n.1 (2d Cir. 1970). See also United States v. Emmanuel, 565
F.3d 1324, 1331 (11th Cir. 2009) (“The shocks the judicial
conscience standard is meant to protect against conduct
that violates fundamental international norms of
decency.” (internal quotation marks omitted)); United
States v. Mitro, 880 F.2d 1480, 1483-84 (1st Cir. 1989)
(same).
The requirement of a showing that conduct
“shocks the conscience” stems not from the Fourth
Amendment, but instead from a federal court’s
authority to exercise its supervisory powers over the
administration of federal justice. See United States v.
Maturo, 982 F.2d 57, 60-61 (2d Cir. 1992). Pursuant to
this authority, “we may employ our supervisory
powers when absolutely necessary to preserve the
integrity of the criminal justice system.” United States v.
Barona, 56 F.3d 1087, 1091 (9th Cir. 1995); cf. Emmanuel,
565 F.3d at 1330.
Defendant’s allegations, at most, amount to a
claim that Israeli law enforcement officials may not
have obtained a warrant under Israeli law prior to
conducting some searches or surveillance—a
circumstance that would hardly “violate[ ] fundamental
international norms of decency.” Mitro, 880 F.2d at 1484;
15 No. 11-1237-cr
see also id. at 1483 n.2 (rejecting argument that “evidence
derived from a foreign search is not admissible in an
American prosecution if the foreign search violated
foreign law”); cf. In re Terrorist Bombings of U.S.
Embassies in East Africa, 552 F.3d at 167 (holding that
searches of U.S. citizens conducted abroad by U.S.
agents are not governed by the Fourth Amendment’s
warrant requirement and need only be reasonable). As
one of our sister circuits has said, “the wiretaps at issue
cannot be said to shock the conscience” even when
“secured in violation of [a] foreign law.” Barona, 56 F.3d
at 1091.
Defendant’s argument on appeal that “[n]o case
of this Court establishes that only physical abuse can
constitute the kind of shocking conduct that could lead
to suppression,” Appellant’s Br. 47-48, misses the basic
nature of the standard. In the context of assessing
abusive executive action, the concept of “shocking the
conscience” derives from the Supreme Court’s decision
in Rochin v. California, 342 U.S. 165 (1952). See County of
Sacramento v. Lewis, 523 U.S. 833, 846 (1998). In Rochin,
the Supreme Court held that
we are compelled to conclude that the
proceedings by which this conviction was
obtained do more than offend some
fastidious squeamishness or private
sentimentalism about combatting crime too
energetically. This is conduct that shocks
the conscience. Illegally breaking into the
privacy of the petitioner, the struggle to
16 No. 11-1237-cr
open his mouth and remove what was
there, the forcible extraction of his
stomach’s contents—this course of
proceeding by agents of government to
obtain evidence is bound to offend even
hardened sensibilities. They are methods
too close to the rack and the screw to
permit of constitutional differentiation.
342 U.S. at 172. Indeed, the Supreme Court has
explained that a “court’s inherent power to refuse to
receive material evidence is a power that must be
sparingly exercised [only in cases of] manifestly
improper conduct by federal officials.” Lopez v. United
States, 373 U.S. 427, 440 (1963). The alleged searches and
surveillance in the instant case are different in kind.
Accordingly, we conclude that the District Court
did not err in denying defendant’s motion to suppress
on the basis that the search did not “shock the
conscience.”
ii. “Implicates Constitutional Restrictions”
Defendant also argues that the instant case falls
within the second exception to the “international silver
platter doctrine,” claiming that this case is one in which
“cooperation with foreign law enforcement officials
may implicate constitutional restrictions.” Lee, 2013 WL
2450533, at *4 (internal quotation marks omitted).
Defendant asserts that a number of factors bring this
case within the so-called “constitutional restrictions”
17 No. 11-1237-cr
exception, including: (1) the INP initiated its
investigation based on the MLAT request from
American law enforcement officials; (2) Israel never
sought to prosecute Getto; (3) many other members of
the conspiracy, or related conspiracies, were extradited
to the United States; and (4) an article in an Israeli
newspaper stated that American law enforcement
agents watched live surveillance of the Ha’Negev boiler
room.
We have explained that, under the “constitutional
restrictions” exception, “constitutional requirements
may attach in two situations: (1) where the conduct of
foreign law enforcement officials rendered them agents,
or virtual agents, of United States law enforcement
officials; or (2) where the cooperation between the
United States and foreign law enforcement agencies is
designed to evade constitutional requirements
applicable to American officials.” Lee, 2013 WL 2450533,
at *4 (internal quotation marks omitted). In examining
defendant’s claims that both “virtual agency” and an
intentional evasion of constitutional requirements
occurred here, the District Court found that “[w]hile
there was some cooperation in the case,” it was not
enough to fall within the exception. Getto, 2010 WL
3467860, at *3. We agree.
Addressing the two situations in turn, Getto first
argues that the factors described above rendered the
INP “virtual agents” of American law enforcement. In
order to render foreign law enforcement officials virtual
agents of the United States, American officials must
18 No. 11-1237-cr
play some role in controlling or directing the conduct of
the foreign parallel investigation. See Lee, 2013 WL
2450533, at *4 (noting that a foreign law enforcement
agency did not “solicit the views, much less approval,
of [American] agents prior to conducting surveillance”);
United States v. Cotroni, 527 F.2d 708, 712 (2d Cir. 1975)
(declining to suppress the fruits of foreign wiretaps
where the “United States government did not in any
way initiate, supervise, control or direct the
wiretapping” (internal quotation marks omitted)). It is
not enough that the foreign government undertook its
investigation pursuant to an American MLAT request.
Courts have repeatedly observed that the purpose of
the exclusionary rule for Fourth Amendment violations
is “to inculcate a respect for the Constitution in the
police of our own nation,” Lee, 2013 WL 2450533, at *3
(internal quotation marks omitted) (emphasis supplied);
see note 7, ante (collecting authorities), and have
“seldom used [it] to bar [foreign police] work product”
because it “has little if any deterrent effect upon foreign
police.” Lee, 2013 WL 2450533, at *3 (internal quotation
marks omitted). An inescapable corollary of this
principle is that in instances where American law
enforcement agents do not have authority to control or
direct an investigation abroad, application of the
exclusionary rule to the fruits of that investigation
would serve no deterrence purpose. See United States v.
Janis, 428 U.S. 433, 446 (1976) (“[T]he prime purpose of
the rule, if not the sole one, is to deter future unlawful
police conduct.” (internal quotation marks omitted)); see
also Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363
(1998) (“[B]ecause the rule is prudential rather than
19 No. 11-1237-cr
constitutionally mandated, we have held it to be
applicable only where its deterrence benefits outweigh
its substantial social costs.” (internal quotation marks
omitted)). As we explained in United States v. Lira, 515
F.2d 68 (2d Cir. 1975), “where the United States
Government plays no direct or substantial role in the
misconduct and the foreign police have acted not as
United States agents but merely on behalf of their own
government, the imposition of a penalty would only
deter United States representatives from making a
lawful request for the defendant and would not deter
any illegal conduct.” Id. at 71.
A review of the record here makes clear that U.S.
officials neither controlled nor directed the foreign
investigation. Although American law enforcement
agents requested assistance with investigating Getto
and shared the results of their preliminary investigation
(e.g., telephone numbers and bank account information)
with the INP, the foreign law enforcement agency
conducted an independent, parallel investigation.
Indeed, the American government has proffered, and
Getto has not rebutted, that, although American agents
“were in contact frequently [with their Israeli
counterparts] to share information,” they did not
participate in any law enforcement actions by the INP in
Israel.9 Joint App’x 195-96.
9For example, American agents were not involved in the
preparation, submission, and execution of search warrants. Nor were
they involved in the interviews of witnesses or defendants in Israel.
20 No. 11-1237-cr
Defendant’s allegations, even if credited,
demonstrate only robust information-sharing and
cooperation across parallel investigations and do not
contradict the government’s claim that the Israeli
investigation was not controlled or directed by
American law enforcement. Cf. United States v.
Paternina–Vergara, 749 F.2d 993, 998 (2d Cir. 1984)
(noting, in the context of statutory analysis of the Jencks
Act, that “[t]he investigation of crime increasingly
requires the cooperation of foreign and United States
law enforcement officials, but there is no reason to think
that Congress expected that such cooperation would
constitute the foreign officials as agents of the United
States”). We do not find persuasive defendant’s
argument that a “live feed” allowing American law
enforcement agents to view surveillance footage in real
time, supposedly referenced in an Israeli newspaper
article, demonstrates that the INP acted as virtual
agents of the United States. We have long allowed
foreign authorities to share the fruits of an investigation
with their American counterparts without suggesting or
assuming that the latter controlled the investigation.
See, e.g., Maturo, 982 F.2d at 61. The ability of modern
law enforcement agencies, aided by global
telecommunications, to share information across
borders without delay is not a significant departure
from the traditional method of sharing surveillance
after-the-fact and does not, in and of itself, give rise to
an inference of agency. See United States v. Morrow, 537
F.2d 120, 140 (5th Cir. 1976) (“Normal lines of
communication between the law enforcement agencies
21 No. 11-1237-cr
of different countries are beneficial without question
and are to be encouraged.”).
Likewise, defendant’s argument that the INP
would not have investigated defendant but for the
MLAT request, even if true, does not bear upon
whether American law enforcement directed the
subsequent investigation in Israel. Rather, this fact only
shows that the INP was unaware of a criminal
conspiracy within its jurisdiction whose victims were
almost exclusively residing in the United States. See
Maturo, 982 F.2d at 61 (“[T]he fact that the [Turkish
National Police] did not initiate the wiretap until
[American agents] gave them the numbers
demonstrates only that the [Turkish National Police]
was unaware that these individuals were using their
phones to traffick [sic] narcotics.”); Morrow, 537 F.2d at
140 (“Criminal conspiracies . . . are sometimes
international in scope, and the routine transmittal of the
name and telephone number of a possibly valuable
informant [or suspect] across national borders clearly is
permissible under the [F]ourth [A]mendment.”).
Finally, we do not find particularly significant the
fact that the defendant—an American citizen, whose
victims were primarily American citizens—was arrested
and charged in the United States, rather than charged in
Israel. A number of factors may properly inform the
decision of prosecutorial venue among different
sovereign states, including: (1) the location of the
relevant witnesses, victims, and evidence; (2) the nature
of different legal systems; (3) the relative priority of a
22 No. 11-1237-cr
case to different nations; and (4) the resources available
to undertake the prosecution in different jurisdictions.
Cf. Linde v. Arab Bank, PLC, 706 F.3d 92, 114 (2d Cir.
2013) (noting that different interests and legal codes
might inform the decisions of foreign states in deciding
whether to prosecute for similar offense conduct); Slater
v. Clarke, 700 F.3d 1200, 1203 (9th Cir. 2012) (noting that
“the decision whether to prosecute[ ] involves a
balancing of myriad factors, including culpability,
prosecutorial resources and public interests” (internal
quotation marks and brackets omitted)). We decline to
infer that the decision to prosecute defendant in the
United States, without more, indicates that American
law enforcement directed the preceding investigation
abroad.
Second, Getto argues, see Appellant’s Br. 43-47,
that “the cooperation between the United States and
foreign law enforcement agencies [was] designed to
evade constitutional requirements applicable to
American officials,” Lee, 2013 WL 2450533, at *4. By its
terms, however, this method of fulfilling the
“constitutional restrictions” exception requires some
intent to evade American constitutional requirements.
See id.; cf. United States v. Yousef, 327 F.3d 56, 146 (2d Cir.
2003) (noting, in the context of overseas interrogations,
that statements may be suppressed under the Fifth
Amendment “where United States officials, although
asking no questions directly, use foreign officials as
their interrogation agents in order to circumvent the
requirements of Miranda” (emphasis supplied)).
23 No. 11-1237-cr
Getto points to nothing in the record suggesting
an intent to evade the Fourth Amendment’s
requirements. Instead, the record demonstrates that the
decision to request INP assistance was motivated by the
inability of American law enforcement agents to further
investigate criminal activity occurring substantially
within the territory of a foreign sovereign. See Maturo,
982 F.2d at 62 (“[T]he [Turkish National Police’s]
wiretapping of phones in Turkey was prompted not by
a desire to circumvent [American] constitutional
constraints, but by [a] logistical problem.”).
Accordingly, we hold that the information in the
record—the MLAT request, the information-sharing
between American law enforcement and the INP, and
American receipt of the fruits of the INP’s investigation
in Israel—reveals no cooperation “designed to evade
constitutional requirements,” Maturo, 982 F.2d at 61, but
only successful coordinated law enforcement activity.
iii. “Joint Venture” Doctrine
In analyzing Getto’s claims within the
constitutional restrictions exception, the District Court
applied the “joint venture” doctrine adopted by some of
our sister circuits. Getto, 2010 WL 3467860, at *3; see
generally United States v. Valdivia, 680 F.3d 33, 52 (1st Cir.
2012); United States v. Peterson, 812 F.2d 486, 490 (9th Cir.
1987) (holding that the exclusionary rule analysis
applies if “United States agents’ participation in the
investigation is so substantial that the action is a joint
venture between United States and foreign officials”).
We note that in the context of the Fourth Amendment,
24 No. 11-1237-cr
the joint venture doctrine has been applied by other
courts with inconsistent, even confusing, results.
Compare United States v. Behety, 32 F.3d 503, 511 (11th
Cir. 1994) (finding no joint venture where American
agents provided information for a search, were present
at the search, and videotaped part of it), with Peterson,
812 F.2d at 490 (finding joint venture where American
officials described their actions as a “joint investigation”
and were “involved daily in translating and decoding
intercepted transmissions, as well as advising [foreign]
authorities of their relevance”).
We have repeatedly declined to adopt the joint
venture doctrine in the context of the Fourth
Amendment. See Lee, 2013 WL 2450533, at *4 n.4;
Maturo, 982 F.2d at 61-62. As we have explained above,
the purpose of the Fourth Amendment’s exclusionary
rule is “to inculcate a respect for the Constitution in the
police of our own nation.” Lee, 2013 WL 2450533, at *3
(internal quotation marks omitted); see also note 7, ante.
This purpose of deterrence is not served in instances
where American law enforcement officers, not
intentionally seeking to evade our Constitution,
participate in a so-called “joint venture” but do not
direct or otherwise control the investigation. See Part
II.A.ii, ante. We, therefore, decide again not to adopt the
joint venture doctrine and, instead, reaffirm the
longstanding principles of “virtual agency” and
intentional constitutional evasion described in this
opinion as the applicable analytic rubric to determine
whether “cooperation with foreign law enforcement
25 No. 11-1237-cr
officials may implicate constitutional restrictions.” 10 See
Lee, 2013 WL 2450533, at *4; Maturo, 982 F.2d at 60-61.
For the reasons stated above, we conclude that
the District Court did not err in denying defendant’s
motion to suppress the evidence gathered abroad by
foreign law enforcement officials.
B. Procedural Error in Sentencing
Getto also challenges the procedural
reasonableness of his sentence. “Criminal sentences are
generally reviewed for reasonableness, which requires
an examination of the length of the sentence
(substantive reasonableness) as well as the procedure
employed in arriving at the sentence (procedural
reasonableness).” United States v. Chu, 714 F.3d 742, 746
(2d Cir. 2013) (internal quotation marks omitted). As we
have explained, “[a] district court commits procedural
error where it fails to calculate (or improperly
calculates) the Sentencing Guidelines range, treats the
Sentencing Guidelines as mandatory, fails to consider
10 We note that our holding declining to adopt the joint venture
doctrine in the context of the Fourth Amendment does not bear upon our
earlier jurisprudence adopting the doctrine in the context of Fifth
Amendment. See Lee, 2013 WL 2450533, at *4 n.4 (“Although our case law
. . . implicitly adopted the joint venture theory in the context of
suppressing overseas interrogations under the Fifth Amendment’s Due
Process Clause, we have not done so in the context of the Fourth
Amendment.” (citations and internal quotation marks omitted)); see
generally United States v. Verdugo–Urquidez, 494 U.S. 259, 264 (1990)
(noting that the Fourth Amendment “operates in a different manner than
the Fifth Amendment”); United States v. Yousef, 327 F.3d 56, 145–46 (2d
Cir. 2003) (adopting the joint venture doctrine in the Fifth Amendment
context of suppressing statements elicited during overseas
interrogations).
26 No. 11-1237-cr
the § 3553(a) factors, selects a sentence based on clearly
erroneous facts, or fails adequately to explain the
chosen sentence.” United States v. Robinson, 702 F.3d 22,
38 (2d Cir. 2012) (relying on Gall v. United States, 552
U.S. 38, 51 (2007)). Getto argues that he was improperly
sentenced based on the total number of victims and the
collective loss amount attributable to the conspirators at
all three boiler rooms, and that the District Court did
not make the required particularized findings before
attributing the activities at all three rooms to him.
A district court may sentence a defendant based
on the reasonably foreseeable acts and omissions of his
co-conspirators that were taken in relation to a
conspiracy. See U.S.S.G. § 1B1.3(a)(1)(B). Before
sentencing a defendant based on the conduct of co-
conspirators, however, a district court is “required to
make two particularized findings . . . : (1) that the scope
of the activity to which the defendant agreed was
sufficiently broad to include the relevant, co-conspirator
conduct in question . . . ; and (2) that the relevant
conduct on the part of the co-conspirator was
foreseeable to the defendant.” United States v. Johnson,
378 F.3d 230, 236 (2d Cir. 2004) (internal quotation
marks, citations, and alterations omitted); see also United
States v. Studley, 47 F.3d 569, 574-75 (2d Cir. 1995).
It is clear from a review of the transcript of the
sentencing proceeding that the District Court did not
make particularized findings relating to the scope of the
activity or the foreseeability of the conduct of Getto,
stating only that it had “no quarrel with the
27 No. 11-1237-cr
[government’s] conspiracy theory here from what I
have read.” Special App’x 33. This terse statement does
not constitute particularized findings,11 see Johnson, 378
F.3d at 236, and compels the conclusion that the District
Court committed procedural error. Accordingly, we
remand the cause with instructions to vacate
defendant’s sentence and proceed promptly to
resentencing.
CONCLUSION
To summarize, we hold that:
(1) Defendant’s allegations that a foreign law
enforcement agency conducted warrantless
searches and surveillance abroad, even if
credited, would not “shock the conscience” so
as to require exclusion of the fruits of those
activities under the Fourth Amendment.
(2) Ongoing collaboration between an American
law enforcement agency and its foreign
counterpart in the course of parallel
investigations does not, without more, give
rise to a relationship between the two entities
sufficient to implicate the Fourth Amendment
abroad because (a) a foreign law enforcement
agency does not act as a “virtual agent” of
American law enforcement where American
11 We “note that the scope of conduct for which a defendant can
be held accountable under the sentencing guidelines is significantly
narrower than the conduct embraced by the law of conspiracy.” United
States v. Perrone, 936 F.2d 1403, 1416 (2d Cir. 1991).
28 No. 11-1237-cr
law enforcement officials do not control or
direct the foreign law enforcement agency’s
investigation abroad; and (b) cooperation
between the United States and foreign law
enforcement agencies does not otherwise
implicate the Fourth Amendment where the
American officials do not intend to evade
constitutional requirements.
(3) We do not adopt the “joint venture” doctrine
in the context of the Fourth Amendment.
(4) The District Court erred by sentencing
defendant based on the conduct of co-
conspirators without making the requisite
particularized findings, see United States v.
Johnson, 378 F.3d 230, 236 (2d Cir. 2004),
regarding the scope of the defendant’s
agreement in the conspiracy and the
foreseeability to the defendant of the co-
conspirators’ conduct.
For the reasons stated above, we AFFIRM the
District Court’s March 29, 2011 judgment of conviction,
and REMAND the cause with instructions to vacate the
sentence and proceed promptly to resentence the
defendant in a manner consistent with this opinion.