United States v. Lee

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-20-2004
USA v. Lee
Precedential or Non-Precedential: Precedential
Docket No. 01-1629
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PRECEDENTIAL Counsel for Appellant
UNITED STATES COURT OF GEORGE S. LEONE
APPEALS Chief, Appeals Division
FOR THE THIRD CIRCUIT MICHAEL M ARTINEZ (argued)
Assistant U.S. Attorney
U.S. Department of Justice
No. 01-1629 970 Broad Street
Newark, NJ 07102-2535
Counsel for Appellee
UNITED STATES OF AMERICA
v.
OPINION OF THE COURT
ROBERT W. LEE, SR.,
Appellant
ALITO, Circuit Judge:
ON APPEAL FROM THE UNITED This is an appeal by
STATES DISTRICT COURT FOR THE defendant Robert W. Lee, Sr. (“Lee”) from
DISTRICT OF NEW JERSEY a judgment in a criminal case. Lee was
indicted on charges stemming from the
(D. C. Criminal No. 99-640-1) alleged payment of bribes by boxing
District Court Judge: John W. Bissell, Jr. promoters to Lee and other officials of the
International Boxing Federation (“IBF”).
After a jury trial, Lee was convicted of one
count of conspiracy to engage in money
Argued September 20, 2002 laundering, in violation of 18 U.S.C. §
1956(h); three counts of interstate travel in
Before: SCIRICA, Chief Judge, and aid of racketeering, in violation of 18
ALITO, and MCKEE, Circuit Judges. U.S.C. § 1952 (the “Travel Act”) and 18
U.S.C. § 2; and two counts of filing false
(Opinion Filed: February 20, 2004) tax returns, in violation of 26 U.S.C. §
7206. He was sentenced to a concurrent
GERALD KROVATIN (argued) term of 22 months’ imprisonment on each
Krovatin & Associates count and was fined $25,000.
744 Broad Street, Suite 1901Newark, NJ In this appeal, Lee argues (1)
07102
1
that video tapes that show him receiving championship committee, chaired by Don
money from a confidential government “Bill” Brennan, and the ratings committee,
informant violated his Fourth Amendment chaired by C. Douglas Beavers.
rights and should have been suppressed,
In May 1996, the Federal
(2) that the District Court misinstructed the
Bureau of Investigation received
jury concerning the meaning of the “duty
information that boxing promoters were
of fidelity” under the New Jersey
paying certain IBF officials in order to
commercial bribery statute, N.J.S.A.
receive more favorable IBF ratings for
2C:21-10, (3) that his Travel Act and
their boxers. Beavers was questioned and,
money laundering conspiracy convictions
in May of 1997, chose to cooperate with
must be reversed because they are
the FBI. He told investigators that he had
predicated upon the N ew Jersey
solicited and received bribes from boxing
commercial bribery statute, and there is an
promoters and that these bribes had been
insufficient nexus between his conduct and
divided equally among himself, Brennan,
New Jersey to permit the application of the
Lee, and Lee's son, Robert W. Lee, Jr.
New Jersey statute, (4) that his money
("Lee, Jr."). Beavers, who is based in
laundering conviction should be reversed
Portsmouth, Virginia, further testified that
because the evidence at trial did not prove
h e h a d h e l d r eg u l a r t e le p h o n e
the existence of a single conspiracy, (5)
conversations with Lee, who works out of
that two of the Travel Act counts were
the IBF headquarters in East Orange,
impermissibly amended at trial, and (6)
regarding strategies for maximizing
that the District Court erred when it
payment amounts, methods for laundering
imposed concurrent sentences of 22
bribes that were received as checks1 , and
months’ imprisonment on the tax counts.
arrangements for Lee to travel from New
We affirm.
I.
1
Because of the difficulty of
Lee was a cofounder and
transporting large amounts of cash from
president of the IBF, an organization that
South America, bribes from South
crowns international boxing champions
American promoters were sometimes
and publishes ratings of boxers within
received in the form of checks. These
different weight divisions. The ratings are
were either hand delivered or mailed to
published monthly from the IBF
Beavers, who would then deposit the
headquarters in East Orange, New Jersey.
checks into a bank account belonging to
The primary function of the ratings is to
the Portsm outh Ath letic C lub, a
determine which boxers will fight in
gymnasium owned by Beavers. Once the
upcoming IBF championship bouts.
checks had cleared, Beavers would then
During the period relevant to this appeal,
retain his share and distribute the
Lee served on the IBF Executive Board
remainder of the bribe to Lee in the form
and various IBF committees, including the
of cash.
2
Jersey to Virginia to collect his share of Fernandez on 35 counts related to the
the bribes. receipt of bribes from boxing promoters.
As noted, Lee Sr. was convicted on six
With Beavers’ cooperation,
counts but acquitted on the rest. Lee, Jr.
the FBI made audio and video recordings
was acquitted on all counts. The case
of three meetings between Beavers and
against Brennan was dismissed because of
Lee that took place in Portsmouth,
his ill health and age, and Fernandez
Virginia, on June 9, 1997, December, 18,
remains a fugitive outside the United
1997 and October 21, 1998. The meetings
States.
were held in a hotel suite rented by
Beavers for Lee in the Portsmouth Holiday II.
Inn and were electronically monitored and
A.
recorded using equipment installed in the
living room of the suite by the FBI prior to Lee challenges the District
Lee’s arrival. This equipment consisted of Court’s admission into evidence of tapes
a concealed camera and microphone that of meetings in his hotel suite. Lee
transmitted video and audio signals to a contends that the monitoring and recording
monitor and recorder located in an of these meetings violated his Fourth
adjacent room. The FBI did not obtain a A m e n d m e n t r i g ht s b e c a us e t h e
warrant authorizing the installation or use government did not obtain a warrant.
of the equipment but instead relied on Lee’s argument, however, is inconsistent
Beavers’ consent. The government agents with well-established Fourth Amendment
located in the room next to Lee’s suite precedent concerning the electronic
were instructed to monitor activity in the monitoring of conversations with the
corridor to determine whether or not consent of a participant.
Beavers had entered Lee’s rooms. The
In United States v. Hoffa,
agents were further instructed to switch on
385 U.S. 293 (1967), a confidential
the monitor and recorder only when
government informant named Partin met
Beavers was in the suite and that, at all
with the defendant in the defendant’s hotel
other times, the monitor and recorder were
suite and elsewhere and testified about
to be switched off. During the December
those conversations at trial. The defendant
1997 meeting, Beavers was recorded
argued that Partin had conducted an illegal
handing Lee cash that had originated as a
search for verbal evidence and that,
bribe paid to the IBF’s South American
because the defendant was unaware of
representative, Francisco “Pancho”
Partin’s role as an informant, the defendant
Fernandez, by a Colombian boxing
had not validly consented to his entry into
promoter, Billy Chams.
the suite. Id. at 300. The Supreme Court
On November 4, 1999, a rejected this argument, holding that the
federal grand jury in the District of New defendant had “no interest legitimately
Jersey indicted Lee, Lee, Jr., Brennan and protected by the Fourth Amendment.” Id.
3
at 301-02. The Court concluded that the equipment which
Fourth Amendment does not protect “a simultaneously transmits the
wrongdoer’s misplaced belief that a person conversations either to
to whom he voluntarily confides his recording equipment located
wrongdoing will not reveal it.” Id. at 302. elsewhere or to other agents
monitoring the transmitting
Although Hoffa involved testimony
frequency . . . .
about conversations and not electronic
recordings of conversations, the Supreme 440 U.S. at 750-51 (quoting United States
Court in later cases drew no distinction v. White, 401 U.S. 745, 749 (1971))
between the two situations. See United (citation omitted)). The Court added that
States v. Caceres, 440 U.S. 741, 744 it had “repudiated any suggestion that [a]
(1979); United States v. White, 401 U.S. defendant had a ‘constitutional right to rely
745, 752 (1971) (plurality). As the Court on possible flaws in the agent’s memory,
in Caceres put it, or to challenge the agent’s credibility
without being beset by corroborating
Concededly a police agent
evidence that is not susceptible of
who conceals his police
impeachment.’” Id. at 750 (quoting Lopez
connections may write down
v. United States, 373 U.S. 427, 439
f o r o f f i c ia l u s e h is
(1963)). In short, the Court adopted the
c o n v e r s a ti o n s w i t h a
principle that, if a person consents to the
d e f en d a n t a n d t e stify
presence at a meeting of another person
concerning them, without a
who is willing to reveal what occurred, the
warrant authorizing his
Fou rth A m e n d m en t p e rm its th e
encounters w i t h the
government to obtain and use the best
defendant and without
available proof of what the latter person
otherwise violating the
could have testified about. This principle
latter’s Fourth Amendment
appears to doom Lee’s argument here.
rights. Hoffa v. United
States, 385 U.S., at 300-303. Lee argues, however, that neither
For constitutional purposes, the Supreme Court nor our court has
no different res ult is e x t e n d e d t h is p r i n c i p l e t o t h e
required if the agent instead circumstances present in this case. He
of immediately reporting points to three factors: (1) the agents used
a n d t r a n s c r ib i n g h i s video rather than audio equipment; (2) the
c o n v e r s a ti o n s wit h recording occurred in Lee’s hotel room, a
d e f e n d a n t , e it h e r ( 1 ) place where a person has a heightened
simultaneously records them expectation of privacy; and (3) the
with electronic equipment monitoring equipment remained in the
which he is carrying on his room when Beavers was not present.
person; (2) or carries radio
4
In making this argument, Lee relies usable conversations with
on the First Circuit’s decision in United agents would occur.
States v. Padilla, 520 F.2d 526, 527-28 (1st
Id. at 528. See also United States v.
Cir. 1975), which held that the defendant’s
Shabazz, 883 F. Supp. 422 (D.Minn. 1995)
Fourth Amendment rights were violated
(audio and video recording).
when agents placed an audio recording
device in the defendant’s hotel room and In contrast to the First Circuit, the
recorded conversations between the Second and Eleventh Circuits have held
defendant and another person who that the Fourth Amendment is not violated
consented to the recordings. In reaching by the use of a fixed electronic device to
this conclusion, the First Circuit expressed record a meeting between a defendant and
concern that if law enforcement officers a person who consents to the recording.
were permitted to leave a monitoring or United States v. Yonn, 702 F.2d 1341,
recording device in a hotel for a lengthy 1346-47 & n. 5 (11th Cir. 1983); United
period of time the officers would be States v. Myers, 692 F.2d 823 (2d Cir.
tempted to monitor or record conversations 1982). In Myers, a defendant was
that occurred when no consenting videotaped during a meeting with a
participant was present. Id. As the Court government informant at a townhouse
put it, maintained by the FBI. Id. at 832.
Rejecting the defendant’s Fourth
[t]he government’s position
Amendment argument, the Court stated
would turn on its head the
that the defendant’s “conversations with
carefully tailore d
undercover agents in whom he chose to
[consenting party] exception
confide were not privileged, and
to . . . one’s expectation of
mechanical recordings of the sights and
privacy. Electronic devices
sounds to which the agents could have
could be installed for
testified were proper evidence.” Id. at
lengthy periods of time
859.
with out antecedent
authority, so long as only a In Yonn, the Eleventh Circuit
suspect’s conversations with likewise held that the Fourth Amendment
police agents were offered was not violated when agents placed a
in e vidence and th e microphone in a motel room and
e n f o r c e m e n t o f f i c ia l s monitored and recorded the defendant’s
alleged that nothing else conversations when a person who
was recorded. Under this consented to the surveillance was present.
approach a room or an entire The Court held that “[t]he location of the
hotel could be bugged electronic equipment does not alter the
permanently with impunity irrefutable fact that Yonn had no
and with the hope that some justifiable expectation of privacy in his
5
conversation with [the person who constitutiona l distinction between
consented].” 702 F.2d at 1347. The Court consensual audio and video surveillance.
also specifically rejected the reasoning of The principle underlying the governing
Padilla, stating that it saw “no reason to Supreme Court cases is that if a defendant
suppress the recording of a clearly consents to the presence of a person who
unprotected conversation merely because could testify about a meeting and is willing
the monitoring technique employed poses to reveal what occurs, the defendant
a hypothetical risk that protected relinquishes any legitimate expectation of
conversations may be intercepted.” Id. at privacy with respect to anything that the
1347 n.5. testimony could cover. Thus, just as Lee
gave up any expectation of privacy in the
We have considered the concern
things that he allowed Beavers to hear, Lee
expressed by the Padilla Court, but we
also gave up any expectation of privacy in
remain convinced that the present case is
the things that he allowed Beavers to see.
governed by the well-established principle
Although video surveillance may involve
that a person has no legitimate expectation
a greater intrusion on privacy than audio
of privacy in conversations with a person
surveillance, the difference is not nearly as
who consents to the recording of the
great as the difference between testimony
conversations. None of the three factors
about a conversation and audio recordings
on which Lee relies appears to us to be
of conversations. As noted, however, the
sufficient to take this case beyond the
Supreme Court has not drawn any
reach of this principle.
distinction between those two types of
First, we cannot distinguish this evidence, and we similarly see no
case on the ground that the recorded cons titutionally relevant distin ction
meetings occurred in a hotel suite. What is between audio and video surveillance in
significant is not the type of room in which the present context.
the surveillance occurred but Lee’s action
Finally, we do not agree with the
in admitting Beavers to the room.
First Circuit that it is appropriate to
Although Lee had an expectation of
suppress recordings of meetings between
privacy in the hotel suite so long as he was
a defendant and a cooperating individual
alone there, when Lee allowed Beavers to
simply because the recording device was
enter, any expectation of privacy vis-a-vis
placed in the room rather than on the
Beavers vanished. We note that in Hoffa
cooperating individual’s person. To be
many of the conversations also occurred in
sure, there are three circumstances in
a hotel suite, but the Court nevertheless
which this distinction would matter for
held that the case did not involve any
Fourth Amendment purposes. First, if the
legitimate Fourth Amendment interest.
defendant had an expectation of privacy in
385 U.S. at 296.
the premises at the time when the device
Second, we cannot draw a was installed, the entry to install the device
6
would constitute a search. Second, the Court feared. Nor is it intuitively obvious
cases involving consensual monitoring do that there is much risk of such abuse. As
not apply if recordings are made when the noted, the Padilla Court feared that law
cooperating individual is not present. enforcement agents would install
Third, the logic of those cases is likewise electronic devices in a hotel rooms and
inapplicable if the placement of the monitor what occurred “in the hope that
recording device permits it to pick up some usable conversations with agents
evidence that the cooperating individual would occur.” 520 F.2d at 527-28.
could not have heard or seen while in the However, there are numerous reasons to
room. Unless one of these circumstances doubt whether law enforcement is likely to
is present, however, it does not matter for find this an alluring strategy.
Fourth Amendment purposes whether the
First, a person who illegally
device is placed in the room or carried on
intercepts wire, oral, or electronic
the person of the cooperating individual.
communicates is subject to criminal and
In either event, the recording will not
civil penalties, see 18 U.S.C. §§ 2511,
gather any evidence other than that about
2520, and a federal agent who violates the
which the cooperating witness could have
Fourth Amendment may be sued under
testified.
Bivens v. Six Unknown Fed. Narcotics
As the government argues, the Agents, 403 U.S. 388 (1971). Second, in
decision in Padilla appears to be based, not order to install a monitoring device, law
on the conclusion that the recordings in enforcement authorities or a person
that case had been obtained in violation of cooperating with them must acquire a right
the Fourth Amendment, but on a to enter the premises, such as by obtaining
prophylactic rule designed to stamp out a a warrant or renting the premises in which
law enforcement technique that the Court the device is to be installed. Thus, the
viewed as creating an unacceptable risk of Padilla Court’s fear that agents might bug
abuse. Even assuming for the sake of “an entire hotel,” 520 F.2d at 528, and the
argument that we have the authority to fear of the District Court in Shabazz that
adopt such a rule 2 , however, we would not devices could be placed in a person’s
do so. Although Padilla was decided more home, see 883 F. Supp. at 425, seem
than a quarter century ago and has not misplaced. Third, it is not clear that law
been followed in any other circuit, we are enforcement would have much to gain
not aware of evidence that the installation from monitoring conversations that occur
of recording devices to monitor meetings when a cooperating individual is not
attended by a cooperating individual has present. A video tape of a conversation
led to the sort of abuse that the Padilla generally reveals whether a cooperating
individual is present, and without proof of
the presence of the cooperating individual,
2
But see United States v. Payner, the tape is inadmissible. We do not go so
447 U.S. 727, 735-36 & n.8 (1980).
7
far as to say that there is no risk of the type Lee next contends that the District
of abuse that worried that Padilla Court, Court misinstructed the jury regarding the
but the risk is not great enough to justify elements of commercial bribery under the
the holding of the Padilla Court. New Jersey Commercial bribery statute,
N.J.S.A. § 2C:21-10, which figured in four
In the present case, there was no
of the counts on which Lee was convicted,
violation of Lee’s Fourth Amendment
i.e., the three counts of interstate travel in
rights. The monitoring devices were
aid of racketeering and the money
installed in the suite’s living room at a
laundering conspiracy count. 3 Our
time when Lee had no expectation of
“[r]eview of the legal standard enunciated
privacy in the premises. There is no
in a jury instruction is plenary,” United
evidence that conversations were
States v. Yeaman, 194 F.3d 442, 452 (3d
monitored when Beavers was absent from
Cir. 1999), “but review of the wording of
the room, and Beavers was plainly there at
the instruction, i.e., the expression, is for
the time of the incriminating meetings
abuse of discretion.” Id. “This Court
shown on the tapes that were introduced at
reviews jury instructions to determine
Lee’s trial. We are satisfied that the tapes
whether, ‘taken as a whole, they properly
do not depict anything material that
apprized the jury of the issues and the
Beavers himself was not in a position to
hear or see while in the room. Finally, we
reject Lee ’s sug gestio n that t he
3
government was required, before resorting The Travel Act counts charged that
to video surveillance, to demonstrate that he traveled in interstate commerce with the
less intrusive investigative techniques intent to promote, manage, establish, carry
were unlikely to succeed. Although this on and facilitate the promotion,
requirement applies to m onitorin g management, establishment and carrying
governed by the federal wiretapping on of commercial bribery in violation of
statute, 18 U.S.C. § 2518(3)(c), that statute the New Jersey bribery statute. The
does not apply to electronic surveillance relevant part of the money laundering
conducted with the prior consent of a party conspiracy count charged that Lee and the
to the communication. Similarly, judicial other alleged conspirators conspired to
d e c i s io n s c o nside ring a s imil a r commit the offense of engaging in
requirement in cases involving silent video financial transactions involving proceeds
surveillance conducted without a derived from violations of the New Jersey
participant’s consent, see United States v. commercial bribery statute while knowing
Williams, 124 F.3d 411, 416 & n.5 (3d that these proceeds were derived from
Cir. 1997), are inapplicable in this context. such violations and that the financial
We therefore reject Lee’s argument that transactions were designed at least in part
the tapes should have been suppressed. to conceal and disguise the nature,
location, source, ownership, and control of
B.
the proceeds.
8
applicable law.’” Id. (quoting Dressler v. an officer, a director, a
Busch Entertainment Corp., 143 F.3d 778, manager or other participant
780 (3d Cir. 1998)). in the direction of the affairs
of an incorporated or
The New Jersey commercial bribery
unincorporated association.
statute provides in relevant part as follows:
A person commits a
Joint App. at 3788. This was a
crime if he solicits, accepts
straightforward and accurate statement of
or agrees to accept any
the elements of N.J.S.A. § 2C:21-10a.
benefit as consideration for
The Court further instructed the
kno wingly violating or
jury as to the meaning of a “duty of
agreeing to violate a duty of
fidelity,” stating:
fidelity to which he is
subject as . . . An officer, A person who owes a
director, manager or other duty of fidelity or loyalty
participant in the direction may not engage in self-
of the affairs of an dealing or otherwise use his
incorporated or or her position to further
unincorporated association . personal interests rather than
.... those of the beneficiary.
For example officers and
N.J.S.A. § 2C:21-10a (emphasis added).
directors have a duty not to
The District Court instructed the engage in self-dealing to
jury that the three elements needed in further their own personal
order to establish a violation of the New interests rather than the
Jersey commercial bribery statute are: interests of the corporation.
First, that th e ....
d e f e n d a n t s o l ic i t ed ,
The duty of loyalty or
accepted or agreed to accept
fidelity may also arise based
a benefit;
on the existence of a
Second, that the contractual relationship
defendant did so in between a defendant such as
consideration for knowingly Mr. Lee, Sr. and the
violating or agreeing to corporation such as the IBF.
violate a duty of fidelity; A contract creates a duty
between the contracting
Third, that th e
parties to adhere to the
defendant owed that duty of
terms of the contract, and
fidelity because he is either
those terms may include or
9
encompass a duty of the ratings of boxers) any failure to draw
fidelity. A director the fine distinction suggested by Lee
or officer’s failure to (between “specific” and “generic”
abide by the terms of corporate duties) was harmless.
his contract with a
Lee next maintains that the
corporation could, if
instructions regarding the “duty of
you so find, be a
fidelity” were flawed because the jury
breach of his duty of
could have interpreted them to mean that
l o ya lty to th e
proof that he breached this duty was alone
corporation.
sufficient to establish that he violated
Joint App. at 3790-91. N.J.S.A. § 2C:21-10a. Lee’s argument is
not convincing. The Court’s discussion of
Pointing to these latter instructions,
the meaning of a “duty of fidelity” was
Lee contends that the District Court erred
delivered immediately after its careful
by telling the jury (1) that a person can
explanation of the three elements that were
breach a “duty of fidelity” merely by
necessary for the jury to convict Lee of
engaging in self-dealing and (2) that a
violating N.J.S.A. § 2C:21-10a, and one of
breach of an employment contract is a per
these elements was that “the defendant
se breach of a duty of fidelity. We
[received a benefit] in consideration for
disagree. Lee first argues that the District
knowingly violating or agreeing to violate
Court went astray in instructing the jury
a duty of fidelity.” Joint App. at 3788.
that any act of self-dealing by a corporate
Thus, the District Court did not read the
officer constitutes a breach of a duty of
element of consideration out of the statute.
loyalty. According to Lee, the New Jersey
commercial bribery statute reaches only
“those specific duties of the actor ‘to Finally, Lee suggests that the
which he is subject’ as a director, manager, District Court told that jury that a breach
etc. of the specific corporation at issue, not of contract is per se a breach of a duty of
to generic, vague, undefined corporate fidelity, Appellant’s Br. at 33, but the
duties, such as a duty to refrain from ‘self- District Court said no such thing. Rather,
dealing.’” Appellant’s Br. at 32 (emphasis the Court said only that a duty of loyalty or
added). However, Lee cites no New fidelity “may . . . arise based on the
Jersey case law that supports this existence of a contractual relationship
interpretation of N.J.S.A. § 2C:21-10a; we between a defendant such as Mr. Lee, Sr.
are not aware of any such authority; and and the corporation such as the IBF” and
the jury instruction in question seems to be that “[a] director or officer’s failure to
an accurate interpretation of the statutory abide by the terms of his contract with a
language. Moreover, in light of the nature corporation could, if you so find, be a
of the breach alleged in this case breach of his duty of loyalty to the
(accepting bribes in exchange for rigging corporation.” Joint App. at 3791
10
(emphasis added). We are convinced that Appellant’s Br. at 39. Lee contends that
the jury instructions, read in their entirety, “the vast majority of the conduct
“properly apprized the jury of the issues constituting ‘commercial bribery’ took
and the applicable law.” Yeaman, 194 place outside the state of New Jersey in
F.3d at 452. states that either do not consider such
conduct a crime, or do not consider it as
C.
serious a criminal offense as New Jersey
Lee next contends that his does.” Appellant’s Br. at 36. He notes
convictions for interstate travel in aid of that the bribe money was handed to him by
racketeering and for conspiracy to engage
in money laundering violated his rights to
due process.4 Asserting that those
to permit that state to regulate that conduct
convictions were predicated on violations
without violating the federal Constitution.
of the New Jersey commercial bribery
The state-law question of whether the
statute, Lee argues that “the connections
conduct at issue is sufficiently tied to the
between the conduct underlying [those
state to bring the conduct within the scope
counts] and the State of New Jersey [were]
of the state commercial bribery statute has
tenuous at best” and that the application of
not been developed in Lee’s briefs, and we
the New Jersey statute to the conduct at
do not regard that question as before us in
issue would violate due process. 5
this appeal. Lee’s brief does refer to the
New Jersey statute that specifies the
4
At one point in his brief, Lee territorial reach of the state’s criminal
claims that the application of the New laws, N.J.S.A. 2C1-3, but Lee makes no
Jersey commercial bribery statute to the attempt to argue that the conduct at issue
conduct charged in the counts at issue also here does not fall within this provision. In
violated his right to the equal protection of particular, Lee does not explain why the
the laws, but his brief makes no attempt to conduct at issue in this case does not fall
explain what this invocation of the Equal within N.J.S.A. § 2C:1-3a(1), which
Protection Clause adds to his due process provides that “a person may be convicted
argument. We are therefore unable to under [New Jersey law] if . . . [e]ither the
assess any independent equal protection conduct which is an element of the offense
argument regarding the New Jersey or the result which is such an element
commercial bribery statute. occurs within this State.” Instead, of
addressing this question, Lee’s brief
5
We understand the question before quickly notes that this statute “is itself
us to be exclusively one of federal subject to constitutional review where
constitutional law, not state law. extra-territorial application of New Jersey
Specifically, we understand the question to law would violate the due process clause
be whether the conduct at issue is of the United States Constitution.”
sufficiently tied to the State of New Jersey Appellant’s Br. at 38-39.
11
Beavers in Virginia and that the In this case, both the purpose and the
agree men ts between Beavers and effect of the commercial bribery was to
Fernandez, the IBF’s South American cause the IBF, which has its principal
representative, were made outside of New place of business in New Jersey, to alter its
Jersey. Lee’s arguments are not rankings of boxers. Thus, the conduct in
persuasive. question had effects within New Jersey: it
tended to harm a business headquartered in
“Acts done outside a jurisdiction,
the state and to produce attendant
but intended to produce and producing
consequences there. These effects are
detrimental effects within it, justify a state
sufficient to permit the state to regulate the
in punishing the cause of the harm as if
conduct without violating due process.
[the defendant] had been present [in the
state] at the effect.” Strassheim v. Daily, The First Circuit’s decision in
221 U.S. 280, 284 (1911). See also United United States v. Woodward, supra,
States v. Woodward, 149 F.3d 46, 66 (1st supports this conclusion. In Woodward, a
Cir. 1998). 6 Cf. Model Penal Code § 1.03. member of the Massachusetts Legislature
accepted gratuities in Florida and was
convicted under the Travel Act of
6
Lee relies on BMW of North traveling in interstate commerce with the
America, Inc. v. Gore, 517 U.S. 559 intent to promote the offense of
(1996), and Healy v. Beer Institute, Inc., commercial bribery, in violation of the
491 U.S. 324 (1981), but we do not find Massachusetts statute. The First Circuit
those cases to be apposite. Pointing to, held that the potential effect on
among other things, the restrictions Massachusetts when one of its legislators
imposed by the dormant Commerce accepts gratuities in another state was
Clause, the Court in BMW held that a state sufficient to satisfy the “effects test” set
court’s award of punitive damages “must out in Strassheim. 149 F.3d at 67-68.
be supported by the State’s interest in
Lee attempts to distinguish
protecting its own consumers and its own
Woodward by arguing that the conduct of
economy.” Id. at 572. Lee does not make
the defendant in that case created a
a make a dormant Commerce Clause
potential for harm that was unique to his
argument here, and in any event, BMW
own state (because he was a member of
does not preclude a state from basing an
that state’s legislature), whereas the effects
award of punitive damages on conduct that
of Lee’s conduct “were no greater in New
occurs outside the state but that has a
Jersey than they were in any other state.”
sufficient effect on the state’s “own
Reply Br. at 12. However, the effects
consumers and its own economy.” Id.
Healy held that a state law
concerning beer prices violated the
dormant Commerce Clause. As noted, Lee Clause argument here, and therefore we do
does not make a dormant Commerce not address that issue.
12
within a state of extraterritorial conduct proved the existence of a series of
need not be unique to that state in order to unrelated conspiracies between different
justify the exercise of jurisdiction. The boxing promoters and individual officers
effects need only be of sufficient of the IBF. Lee argues that his conviction
magnitude, and while the effects-test for conspiracy to engage in money
argument was stronger in Woodward than laundering should therefore be reversed.
it is here, the effects here were adequate. We reject this argument.
Moreover, we note that, contrary to Lee’s
We exercise plenary review over
suggestion, his conduct did create the
“whether there was sufficient evidence
potential for special harm in New Jersey
from which the jury could have concluded
because that is where the IBF is
that the government proved the single
headquartered and publishes its rankings.
conspiracy alleged in the indictment.”
We thus hold that Lee’s convictions on the
United States v. Kelly, 892 F.2d 255, 258
counts in question did not violate due
(3d Cir. 1989). In reviewing the
process.
sufficiency of the evidence after
D. conviction, we must view the evidence in
the light most favorable to the verdict. Id.
Lee contends that the government
Where a single conspiracy is alleged in an
failed to prove the existence of a single
indictment, and the evidence at trial merely
conspiracy to engage in money laundering,
proves the existence of several distinct
as charged in the indictment, 7 and merely
conspiracies, there is an impermissible
variance. Id. On the other hand, “a
finding of a master conspiracy with sub-
7
Count 27 of the Superceding schemes does not constitute a finding of
Indictment provides, in relevant part:
From in or about December 1990, fact, involved the proceeds of specified
through in or about November 1997, in the unlawful activity, namely, bribery,
district of New Jersey, and elsewhere, contrary to N.J.A.C. §§ 2C:21-10(a)(4)
defendant ROBERT W. LEE, SR., and and 2C:21-10(b).
separately charged Don Brennan, a/k/a/ ....
“Bill”, and separately charged Francisco b. knowing that the transaction was
Fernandez, a/k/a/ “Pancho,”a/k/a “Pacho,” designed in whole and in part to disguise
and others conspired to violate Title 18, the nature, location, source, ownership and
United States Code, Section 1956(a)(1), control of the proceeds of specified
that is, knowing that the property involved unlawful activity, nam ely, bribery,
in financial transactions represented the contrary to N.J.A.C . §§ 2C:21-10(a)(4)
proceeds of some form of unlawful and 2C:21-11(b).
activity, conducted and attempted to
conduct financial transactions, which in Joint App. at 120.
13
multiple, unrelated conspiracies and, of the Kelly inquiry is satisfied because
t h e r e fo r e , w ould not c r e a te an Lee, Lee Jr., Brennan and Fernandez
impermissible variance.” Id. (quoting shared a common goal, namely, to receive
United States v. Smith, 789 F.2d 186, 200 shares of the payments from boxing
(3d Cir. 1986)). In Kelly, we adopted a promoters. The second step in the Kelly
three-step inquiry to distinguish a single inquiry – that the co-conspirators each
conspiracy from a series of separate, acted to bring about a continuous result
unrelated conspiracies: that would not have continued but for their
continuing cooperation – is also met
First, we examine
because the participants continuously
whether there was a
cooperated in their receipt of bribes, in the
common goal among the
laundering of checks, and in the
conspirators. Second, we
distribu tion of p rocee ds be tw een
look at the nature of the
themselves. For example, Lee held several
scheme to dete rmin e
conversations with Beavers regarding the
whether the agreement
risks of receiving bribes in the form of
contemplated bringing to
checks, and Beavers deposited checks that
pass a continuous result that
he had received from Fernandez into the
will not continue without
bank account belonging to the Portsmouth
the continuous cooperation
Athletic Club and then distributed part of
of the conspirators. Third,
the proceeds to Lee. Finally, there was
we examine the extent to
sufficient evidence to show that the
which the participants
participants overlapped in the various
overlap in the various
dealings, in satisfaction of the third Kelly
dealings.
factor. In establishing this third factor, the
Id. at 259 (citations and quotation marks government is not required to “prove that
omitted). each defendant knew all the details, goals,
or other participants in order to find a
Application of the Kelly inquiry
single conspiracy.” Id. at 260 (internal
shows that the jury had a reasonable basis
quotation marks and citations omitted).
for concluding that what Lee alleges were
Evidence was presented at trial that Lee
four separate conspiracies was in fact part
participated in each of the four supposedly
of the same overarching conspiracy to
separate schemes, Beavers was directly
launder the proceeds of the bribes paid to
implicated in three 9 , and Fernandez was
Lee and other IBF officials.8 The first step
conspiracies involved direct payments by
8
Two of the allegedly separate U.S. boxing promoters to Lee and Beavers.
conspiracies involved payments by
9
Colombian boxing promoters to Fernandez He either received money from
and then to Beavers. The two remaining Fernandez or directly from a boxing
14
directly implicated in two. Counts 21 and 23 of the indictment
included the following language:
In sum, there was sufficient
evidence, when viewed in the light most On or about the following
favorable to the government, from which dates, in the district of New
the jury could have concluded that there Jersey, and elsewhere, the
was a single conspiracy, as opposed to a below-named defendants
series of unrelated smaller agreements did knowingly and wilfully
between the participants. travel in interstate and
foreign commerce as
E.
described below, with intent
Lee contends that the two of the to promote, manage,
Travel Act counts of the indictment were establish, carry on and
improperly amended at trial. We exercise facilitate the promotion,
plenary review over a claim that an management, establishment
indictment was impermissibly amended. and carrying on of an
United States v. Asher, 854 F.2d 1483, unlawful activity, that is,
1497-98 (3d Cir. 1988). “In order to rise bribery, contrary to N.J.S.A.
to the level of an impermissible 2C:21–10(a)(4) and 2C:21-
amendment, a variance must act to modify 10(b), and therafter did
the indictment so that the defendant is perform, and cause the
convicted of a crime that involves performance of an act to
elements distinct from those of the crimes promote, manage, establish,
with which he was originally charged.” Id. carry on and facilitate the
at 1497. “Thus, where trial evidence [has] promotion, management,
amended the indictment by broadening the and carrying on of said
possible bases for conviction from that unlawful activity.
which appeared in the indictment, the
....
variance violates the defe ndan t’s
substantial right to be tried only on charges Count Date Defendants
returned by a grand jury.” Id. (citations From/To
and quotation marks omitted, emphasis
21 11/97 Lee, Sr.
and alteration in original). “If, on the
Colombia to
other hand, the variance does not alter the
Virginia
elements of the offense charged, [courts]
focus upon whether or not there has been 23 6/98 Lee, Sr.
prejudice to the defendant.” Id. (alteration Colombia to
in original). Virginia.
A pp e l l ee’s
Supp. App. at
promoter.
15
64-65 133 F.3d 246, 250 (3d Cir. 1998).10
(e m ph Accordingly, even though Counts 21 and
a s i s 23 of Lee’s indictment could perhaps have
added) been more carefully drafted, it is apparent
. that these counts apply both to travel in aid
of racketeering by Lee himself, acting as
principal, and to Lee’s aiding and abetting
In violation of Title 18, United the travel in aid of racketeering of another
States Code, Sections 1952 and 2. unnamed individual or individuals. The
evidence presented at trial showed that Lee
Appellee’s Supp. App. at 64-65
aided and abetted Fernandez’s travel to
(emphasis added).
and from Colombia but did not show such
Lee contends that his conviction travel by Lee. The elements of the offense
under these counts should be overturned charged in Lee’s indictment were therefore
because the government impermissibly narrowed at trial. Accordingly, we look to
amended the indictment by presenting whether Lee suffered any prejudice.
evidence at trial, not that he traveled from Asher, 854 F.2d at 1497. The indictment
“Colombia to Virginia” on or about charged Lee with aiding and abetting
“11/97" and “5/98,” as the indictment travel between Colombia and Virginia by
charged, but that Fernandez made those an unnamed individual on or about
trips. We disagree. November of 1997 and June of 1998.
Evidence at trial showed that Fernandez,
Lee’s argument ignores the fact that
the IBF’s South American representative
Counts 21 and 23 charge that the alleged
and Lee’s co-indictee, was the unnamed
conduct violated “Title 18, United States
individual that Lee had aided and abetted
Code, Sections 1952 and 2,” Appellee’s
in his travels between Colombia and
Supp. App. at 65 (emphasis added), and
Virginia during these months. We cannot
under 18 U.S.C. § 2 Lee could be held
believe Lee was prejudiced by this
liable as a principal for Fernandez’s travel
narrowing of the government’s theory at
in interstate or foreign commerce if Lee
trial.
aided, abetted, counseled, commanded,
induced, procured, or willfully caused F.
Fernandez to engage in that conduct. We
have previously noted that criminal
10
indictments are to be read “as a whole and Moolenar dealt w ith an
interpret[ed] in a common sense manner.” information, as opposed to an indictment,
Gov’t of the Virgin Islands v. Moolenar, but stressed that, for the purpose of
assessing the permissibility of amendments
at trial, an information and an indictment
should be treated in the same manner. 133
F.3d at 248.
16
Lee’s last argument is that the six counts. Id. at 3700. Because the
District Court erred when it sentenced him statutory maximum for Lee’s tax offenses,
to concurrent terms of 22 months’ 3 years, is not less than the minimum
imprisonment on the two tax counts, which guideline range of 21 months, and because
charged violations of 26 U.S.C. § 7206. there was no mandatory minimum term of
Because Lee did not raise this argument in imprisonment for those offenses, the
the District Court, we review for plain District Court did not commit plain error
error. United States v. Gricco, 277 F.3d when it imposed the same concurrent 22-
339, 350 (3d Cir. 2002). month sentence on all counts.
Title 26, United States Code III.
Section 7206 provides that any violation
For the reasons explained above,
may be punished by a fine of “not more
we affirm the judgment of the District
than $100,000 . . . or imprison[ment for]
Court.
not more than 3 years.” 26 U.S.C. § 7206.
Section 3D1.2 of the Sentencing
Guidelines directs a sentencing court to
McKee, Circuit Judge, dissenting.
group “[a]ll counts involving substantially
the same harm,” and Section 5G1.2(b) of
the Guidelines instructs a court to apply
“What a person knowingly exposes
the same sentence to each count in the
to the public, even in his own home or
same group, unless the statutorily
office, is not a subject of Fourth
authorized maximum for that count is less
Amendment protection.” Katz v. United
than the minimum of the guideline range
States, 389 U.S. 347, 351 (1967)
or the statutory minimum is greater than
(emphasis added). Today my colleagues
the maximum of the guideline range.
stretch that rule to include personal effects
U.S.S.G. § 5G1.2(b) (referring to §§
that a person unknowingly exposes to the
5G1.1(a) and (b)). A t t h e s e n t e n c i n g
public. Accordingly, I must respectfully
hearing, the District Court determined the
dissent from the majority’s rejection of
offense level for Lee’s money laundering
Lee’s Fourth Amendment claim.
and Travel Act offenses to be 16 and the
offense level for his tax convictions to be I. BACKGROUND
seven. Joint App. at 3646-48. The Court
The FBI rented a hotel suite for Lee
did not commit plain error when it grouped
in June and December of 1997. The suite
these offenses. The Court proceeded to
consisted of “a sitting room and
identify a guideline range of 21 to 27
kitchenette, from which one could walk
months, based on an offense level of 16
through a continuously open door, into a
and Lee’s criminal history category of I.
bedroom, which also had a bathroom in
Id. at 6. The Court then imposed
it.” A496-97. C. Douglas Beavers, the
concurrent sentences of 22 months on all
government’s cooperating witness, rented
17
the hotel suite in Lee’s name on behalf of malfunctioned and the FBI was only able
the government and kept a key for himself. to monitor and record audio transmissions
However, both Lee and Beavers treated the by utilizing the microphone and camera
suite as if it was exclusively Lee’s hotel hidden inside Lee’s suite. The audio and
room. video recordings that resulted from this
surveillance constituted the primary
With Beavers’ consent, the FBI
evidence for the only counts on which Lee
concealed a video camera and microphone
was convicted.
in the suite after Beavers rented it. The
camera could swivel 360 degrees and The Government argues that
transmit video images from the living “Beavers’ view of the room was
room area and part of the bedroom area of unobstructed, and he could look around the
Lee’s suite 24 hours a day. Special Agent room at will. Nothing was concealed from
Reilly of the FBI monitored the hidden Beavers that was visible to the camera.”
surveillance equipment from an adjacent See Appellee’s Br. at 28. However, that
hotel room the government had rented for claim is not supported by this record, and
that purpose. Reilly could remotely the district court did not focus on that
control the camera and equipment in Lee’s aspect of Lee’s argument. Instead, it
suite from her location in the adjoining found that Lee had no expectation of
room. The equipment in Lee’s room privacy in his hotel suite because he
continuously transmitted video and audio admitted Beavers to the room, and
to the receiving equipment operated by Beavers’ presence negated Lee’s Fourth
Agent Reilly although she could not Amendment expectation of privacy under
receive or record those transmissions Hoffa v. United States, 385 U.S. 293
unless her equipment was turned on. (1966). A498.
Agent Reilly testified without II. DISCUSSION
contradiction that she did not turn her
A. Katz and Hoffa
equipment on or monitor any of the
transmissions from Lee’s suite unless The Supreme Court first addressed
Beavers was in the suite with Lee. the tension between law enforcement’s use
However, the camera could scan and focus o f t e c h n o lo g y a n d th e F o u r t h
on different areas of Lee’s suite whether or Amendment’s guarantee of privacy in Katz
not Beavers was there. See Reply Br. at 4 v. United States. 389 U.S. 347 (1967).
n.1. There, FBI agents attached an electronic
device to the outside of a public telephone
When Beavers visited Lee, he also
booth that Katz was suspected of using for
wore a “body wire” capable of sending
gambling-related telephone calls. The
audio transmissions to the equipment in
device allowed the FBI to surreptitiously
Agent Reilly’s adjoining room. However,
listen to Katz’s end of telephone
Beavers’ body transmitter apparently
conversations. Based primarily upon
18
evidence obtained from monitoring those Wherever a man may be, he
calls, Katz was subsequently convicted of is entitled to know that he
using the telephone for interstate will remain free from
transmission of gambling information in unreasonable searches and
violation of 18 U.S.C. § 1084. Following seizures. The government
his conviction, Katz appealed the trial agents here ignored the
court’s denial of his motion to suppress procedure of antecedent
evidence derived from the electronic justification . . . that is
interception of his telephone central to the Fourth
conversations. Amendment, a procedure
that we hold to be a
The Supreme Court concluded that
constitutional precondition
Katz’s expectation of privacy in the
of the kind of electronic
content of his calls was reasonable even
surveillance involved in this
though he was standing in a public
case. Bec ause the
telephone booth in full view of everyone
surveillance here failed to
passing by, and that the electronic
meet that condition, and
interception of his telephone calls
because it led to the
constituted a “seizure” under the Fourth
petitioner’s conviction, the
Amendment even thou gh it was
judgment must be reversed.
accomplished without physically invading
the place where the monitoring occurred. 389 U.S. at 358-59 (internal quotation
Therefore, absent exigencies that were not marks and citations omitted).
present, the seizure was subject to the
The majority relies upon Hoffa v.
warrant requirement of the Fourth
United States, 385 U.S. 293 (1966), in
Amendment. The Court explained:
concluding that Lee’s expectation of
[B]ypassing a neutral privacy inside the intimacy of his hotel
predetermination of the suite was not reasonable. However, on
scope of a search leaves this record, that is an unjustified and
individuals secure from unsupportable extension of Hoffa and its
Fourth Amendment progeny.
violations only in the
The defendant in Hoffa was
discretion of the police.
convicted of jury tampering based
These considerations do not primarily upon the testimony of Edwin
vanish when the search in Partin, an official of a Teamsters Union
question is transferred from local in Nashville, Tennessee, where Hoffa
the setting of a home, an and other union officials were on trial for
office, or a hotel room to violating the Taft-Hartley Act. During the
that of a telephone booth. course of that trial, the government
19
became concerned that Hoffa and his co- . . The Fourth Amendment
defendants might attempt to bribe some of can certainly be violated by
the jurors. Unbeknownst to Hoffa, the guileful . . . intrusions into a
government recruited Partin to gather constitutionally protected
evidence of jury tampering. Partin was area. . . . And the
able to visit Hoffa’s hotel suite and Hoffa protections of the Fourth
spoke freely of attempting to bribe jurors Amendment are surely not
in his presence. Hoffa’s trial for Taft- limited to tangibles, but can
Hartley violations ended with a hung jury, extend as well to oral
but Hoffa was thereafter convicted of jury statements.
tampering based largely on Partin’s
testimony about statements Hoffa had
made in his hotel suite.11 Hoffa appealed Id. at 301. The Court explained:
arguing in part that Partin’s testimony
The Fourth Amendment
should have been suppressed because it
protects . . . the security a
was obtained in violation of the Fourth
man relies upon when he
Amendment. Hoffa argued that Partin’s
places himself or his
failure to disclose that he was “a
property within a
government informer vitiated the consent
constitutionally protected
that [Hoffa] gave to Partin’s repeated
area, be it his home or his
entries into the [hotel] suite, and that by
office, his hotel room or his
listening to [Hoffa’s] statements Partin
automobile. There he is
conducted an illegal ‘search’ for verbal
protected from unwarranted
evidence.” 385 U.S. at 300.
governmental intrusion.
The Hoffa Court began its analysis And when he puts
by conceding that the legal predicate of something in his filing
Hoffa’s argument rested on solid ground. cabinet, in his desk drawer,
or in his pocket, he has the
right to know it will be
A hotel room can clearly be
secure from an unreasonable
the obje ct of Fou rth
search or an unreasonable
Amendment protection as
seizure.
much as a home or office. .
Id. (footnote omitted). However, the Court
11
The government’s evidence at the rejected the balance of Hoffa’s argument
jury tampering trial consisted primarily of because Hoffa’s disclosures resulted from
Partin’s testimony about statements he his relationship with Partin, not any
heard Hoffa make while in Hoffa’s hotel reliance on the privacy of his hotel suite.
room during the first trial.
20
Thus, there was no reasonable expectation reasonable expectation of privacy and Katz
of privacy in the contents of the statements becomes irrelevant. I disagree.
made to Partin, and no Fourth Amendment
Hoffa teaches that one’s expectation
privacy interest prevented Partin from
of privacy is compromised, and therefore
testifying about Hoffa’s “confidential”
unreasonable, to the extent that he or she
statements. The Court explained:
confides in a confederate because the
It is obvious that [Hoffa] speaker is assuming the risk that the
was not relying on the confederate may subsequently betray the
security of his hotel suite speaker’s trust and repeat anything
when he made the communicated in “private.” The same
incriminating statements to logic dictates that one has no reasonable
Partin or in P artin’s expectation in the privacy of anything
presence. Partin did not he/she knowingly allows the confederate to
enter the suite by force or by see in the presumed privacy of a home or
stealth. He was not a hotel room, or elsewhere.12 As noted
surreptitious eavesdropper. above, the government concealed a
Partin was in the suite by microphone and video camera in the sitting
i n v i t a t i o n , a n d e v e ry room area inside Lee’s hotel suite. From
conversation which he heard that vantage point, the government was
was either directed to him or capable of monitoring Lee’s activity inside
knowingly carried on in his his suite 24 hours a day by way of audio
presence. The petitioner, in and video transmissions to Agent Reilly in
a word, was not relying on the adjoining room.
the security of the hotel
The government maintains that it
room; he was relying upon
took steps to insure Lee’s privacy and to
his misplaced confidence
guarantee that its actions were consistent
that Partin would not reveal
with the pronouncements in Hoffa. It
his wrongdoing.
argues that Agent Reilly did not start
monitoring the transmissions from Lee’s
suite until Beavers arrived, that she turned
Id. at 302.
The same is true here, but only to a
point, and it is this limitation that the 12
This has been referred to as the
majority ignores in allowing Hoffa to
“invited informant” doctrine. See, e.g.,
swallow Katz on this record, and gulp
United States v. Nerber, 222 F.3d 597, 605
down the Fourth Amendment in the
n.10 (9th Cir. 2000). For convenience, I
process. Under the majority’s Hoffa
will use that phrase throughout my
analysis, once Lee allowed Beavers to
discussion.
enter the suite, Lee no longer had a
21
the equipment off when Beavers left, and conversations in the public telephone
that she did not turn it on in Beavers’ booth. The Court reasoned:
absence. My colleagues conclude that this
[T]he inescapable fact is
restraint was consistent with Lee’s
that this restraint was
expectation of privacy under Hoffa, and
imposed by the agents
therefore no Fourth Amendment violation
themselves, not by a judicial
occurred. In doing so, my colleagues
officer. They were not
ignore the fact that the Court in Katz
required, before
rejected that very argument.
commencing the search, to
The Court in Katz began its analysis present their estimate of
by noting the restrained manner in which probable cause for detached
the government had obtained the evidence scrutin y to a neutra l
there. magistrate. They were not
compelled, during the
[T]he surveillance was
conduct of the search itself,
limited, both in scope and in
to observe precise limits
duration, to the specific
established in advance by a
purpose of establishing the
specific court order. Nor
contents of petitioner’s
were they directed, after the
u n la w fu l t e l e p h o n ic
search had been completed,
com munications. The
to notify the authoring
agen ts confined the
magistrate in detail of all
surveillance to the brief
that had been seized. In the
periods during which he
absence of such safeguards,
used the telephone booth
this Court has never
and they took great care to
sustained a search upon the
overhear only the
sole ground that officers
c o n v e r s a ti o n s o f th e
reasonably expected to find
petitioner himself.
evidence of a particular
crim e and volun tarily
confined their activities to
389 U.S. at 354 (footnotes omitted).
the least intrusive means
Accordingly, there, as here, the actual
consistent with that end.
surveillance had been conducted “in an
entirely defensible manner[.]” Id. There,
as here, “[i]t [was] apparent that the agents
Id. at 356-57 (emphasis added).
. . . acted with restraint” Id. at 356.
Nevertheless, the Court concluded that this Accordingly, I fail to see the
self-imposed restraint could not legitimize significance of the government’s self-
the warrantless seizure of Katz’s imposed restraint here. Despite those self-
22
imposed limitations, the fact remains that The government attempts to negate
Agent Reilly had the ability to manipulate the reasonableness of Lee’s expectation of
a video camera to see and hear practically privacy by suggesting that, since Lee knew
everything that Lee did in the privacy of Beavers paid for the room and retained a
his hotel suite throughout the day and key, “Lee’s expectation of privacy in the
night. The limitations of that Orwellian room was relatively diminished.”
capability were not subject to any court Appellee’s Br. at 21. However, as noted
order. Rather, they were defined by the above, both parties regarded the suite as
curiosity and scruples of a single agent. Lee’s and the government does not
That is simply not adequate given the seriously argue to the contrary. Everyone
importance of Fourth Amendment involved apparently knew that Lee was to
guarantees. remain in the suite overnight, and there is
nothing to suggest that anyone ever
If subjective good faith
expected Beavers to remain in the suite for
alone were the test, the
any length of time. “From the overnight
protections of the Fourth
guest’s perspective,” the expectation of
Amendment would
privacy in a hotel room is entitled to the
evaporate, and the people
same respect as afforded one’s actual
would be secure in their
home under the Fourth Amendment.
persons, houses, papers and
Minnesota v. Olson, 495 U.S. 91, 99
e f f e c t s , o n l y i n th e
(1990). Thus, “[n]o less than a tenant of a
discretion of the police.
house, or an occupant of a room in a
boarding house, . . . a guest in a hotel
room is entitled to constitutional protection
Terry v. Ohio, 392 U.S. 1, 22 (1068)
against unreason able searches and
(internal quotation marks and citation
seizures.” Stoner v. California, 376 U.S.
omitted).
483, 490 (1964).
Moreover, the agents in Katz did
Accordingly, the fact that Beavers
not even initiate their electronic
rented the suite for Lee and retained a key
monitoring “until investigation of the
to Lee’s suite before surrendering
[defendant’s] activities established a
possession to Lee for the latter’s sole
strong probability that he was using the
occupancy is little more than a technicality
telephone in question [for interstate
of convenience that the government
gambling purposes].” 389 U.S. at 354.
devised to fortify this intrusion against the
Here, there is no such representation. In
expected suppression motion. It is entitled
fact, it is clear that Lee was not using the
to no more consideration than that.
hotel suite for illegal purposes before the
government installed microphones and [I]t is unnecessary and ill-
cameras there and arranged for him to advised to import into the
occupy it. l a w surrounding th e
23
constitutional right to invitation, and every conversation which
be free from he heard was either directed to him or
unreasonable knowingly carried on in his presence.” Id.
searches and seizures
subtle distinctions,
It is now clear that the Fourth
developed and
Amendment does not protec t “a
r e f i n ed by th e
wrongdoer’s misplaced belief that a person
common l aw in
to whom he voluntarily confides his
evolving the body of
wrongdoing will not reveal it.” Id.
private property law
How ever, this means that Lee’s
which, more than
e xpe c ta t i o n o f p r i v a cy is o n ly
almost any other
unreasonable insofar as he actually made
branch of law, has
statements in Beavers’ presence, or
been shaped b y
allowed Beavers to see the effects inside
distinctions whose
his suite. It does not mean that Lee’s
validity is largely
expectation of privacy in things beyond
historical. (W)e
Beavers’ earshot or line of sight was
ought not to bow to
unreasonable. Indeed, that expectation
them in the fair
remained reasonable and should be
administration of the
protected under the Fourth Amendment.
criminal law.
However, the concealed camera
was capable of sweeping the hotel suite at
Id. at 488. To the extent the Fourth a 360-degree angle, thereby displaying for
Amendment has any vitality in an era of the FBI all of Lee’s effects inside the suite
increasingly sophisticated electronic whether or not Beavers would have been
eavesdropping, it surely protects the able to see them. Neither Hoffa nor any
privacy of someone in the intimacy of a other legal precedent supports such an
hotel suite from the potential of abrogation of the fundamental right of
warrantless 24-hour video surveillance. privacy.
As noted above, the majority B. Lee’s Right of Privacy
concludes that the Supreme Court’s
The Fourth Amendment states that
analysis in Hoffa negates Lee’s claim of
“[t]he right of the people to be secure in
privacy. Lee, like Hoffa, “was not relying
their persons, houses, papers, and effects,
on the security of his hotel suite when he
against unreasonable searches and
made incriminating statements to
seizures, shall not be violated. . . .” U.S.
[Beavers] or in [Beavers’] presence.”
C ONST. Amend. IV. At the very core of
Hoffa, 385 U.S. at 302. Beavers, like the
the Fourth Amendment “stands the right of
confederate in Hoffa, “was in the suite by
a [person] to retreat into [his or her] own
24
home and there be free from unreasonable Katz, 389 U.S. 347).
governmental intrusion.” Silverman v.
C. Video Surveillance Under Hoffa
United States, 365 U.S. 505, 511 (1961).
In United States v. Felton, 753 F.2d
It has often been said that “the
256 (3d Cir. 1985), we explained the
Fourth Amendment protects people, not
invited informant rule in the context of a
places.” Katz, 389 U.S. at 351. However,
monitored telephone conversation. There,
my colleagues appear to assume that since
we stated:
Lee admitted Beavers to his suite (the
place), Lee (the person) lost all Insofar as the Fourth
constitutional protection. That conclusion Amendment is concerned,
would be warranted if Lee had allowed one party to a telephone
Beavers’ unlimited access to everything conversation assumes the
that was within the 360-degree field of risks that the other party (a)
vision of the video camera. However, will permit a third party to
despite its assertion to the contrary, the eavesdrop on an extension
government has not established that he did. telephone, for the purpose
“[T]he capacity to claim the protection of of communicating what he
the Fourth Amendment depends . . . upon heard to the police, or (b)
whether [Lee] has a legitimate expectation may be a police informer
of privacy” in those portions of his hotel who will relate or record or
room that were beyond the gaze of transmit a conversation to
Beavers. Minnesota v. Olson, 495 U.S. 91, the authorities, or (c) may
95 (1990) (ellipsis in original; internal record the conversation and
citation and quotation marks omitted). deliberately turn it over.
Unlike my colleagues, I conclude
that Lee’s expectation of privacy in
Id. at 260. We then stated: “the
anything inside the suite that he did not
expectation of privacy is not measured by
knowingly let Beavers see was reasonable,
what takes place during or after the
and entitled to Fourth Amendment
conversation, it is measured by what is
protection.
expected before the conversation begins.”
Moreover, the government was able Id. As then-Chief Judge Aldisert so
to peer into Lee’s hotel room even after plainly explained, “[w]hen you pick up
Beavers left. “When [the informant] that phone and talk, you can’t trust
leaves [the] premises, [the subject] is left nobody, nohow, nowhere!” Id.
with the expectation of privacy in his
Hoffa’s reliance on the Court’s
surroundings which is not only actual but
earlier decision in Lopez v. United States,
justifiable. . . .” United States v. Padilla,
373 U.S. 427 (1963) clearly demonstrates
520 F.2d 526, 527 (1st Cir. 1975) (citing
this. Lopez is even more relevant to Lee’s
25
claim here because in Lopez, unlike in farther and substitute its own electronically
Katz, the government concealed a enhanced senses for the mortal senses of
transmitter and recorder on a government the informant. Putting aside for a moment
agent. That agent then interviewed the the ability to monitor Lee’s suite when
defendant in the latter’s office after being Beavers left, absent a showing that
invited in. The defendant was convicted Beavers and Agent Reilly were limited to
of offering the agent a bribe based on the identical observations while Beavers was
ensuing conversation, and thereafter in Lee’s suite, the g overnment’s
argued that the trial court had erred in surveillance simply goes too far. The
refusing to suppress recordings of problem is only exacerbated by the fact
conversations with the agent. The Lopez that Agent Reilly had the capability of
Court began by noting that “it [was] plain monitoring Lee at all hours of the day and
that [the agent] could properly testify night even though Beavers was not in the
about his conversation with Lopez;” thus, suite. As noted above, it is clear under
“the constitutional claim relating to the Katz that the fact that Agent Reilly did not
recording of that conversation emerge[d] peek is not relevant to this invasion of
in proper perspective.” 373 U.S. at 438. Lee’s privacy under the Fou rth
The Court concluded that the recordings Amendment.
were properly admitted at trial because
My colleagues note that they “are
“[t]he Government did not use an
satisfied that the tapes [here] do not depict
electronic device to listen in on
anything material that Beavers himself was
conversations it could not otherwise have
not in a position to hear or see while in the
heard.” Rather, “the device was used only
room.” Maj. Op. at 13. Again, putting
to obtain the most reliable evidence
aside the intrusion that occurred when
possible of a conversation in which the
Beavers was not even in the suite, I must
Government’s own agent was a participant
still respectfully disagree with the
and which that agent was fully entitled to
majority’s analysis. T h e g o v e r n m e n t
disclose.” Id.13 However, neither Lopez
concedes that the camera continued to
nor Hoffa allow the government to go
transmit video surveillance of Lee’s room
on occasion when Beavers left Lee’s
presence to go to the bathroom, and there
13
The Court likened Lopez’ is no showing that, in Beavers’ absence,
position to an argument that he had “a Agent Reilly could only see objects that
constitutional right to rely on possible Beavers had already seen, or would see
flaws in the agent’s memory, or to when he returned to the sitting area where
challenge the agent’s credibility without Lee remained. Similarly, there has been
being beset by corroborating evidence that absolutely no finding here that Agent
is not susceptible to impeachment.” Lopez, Reilly was only able to see what Lee
373 U.S. at 439. That position was, of knowingly allowed Beavers to see while
course, untenable.
26
Beavers was in Lee’s presence. Despite its quoted Judge Kozinski’s concurring
claim that Reilly only saw what Beavers opinion in United States v. Koyomejia, 970
saw, the government concedes that any F.2d 536, 551 (9th Cir. 1992). There,
such limitation on its surveillance would Judge Kozinski stated: “every court
be extremely impractical if not impossible. considering the issue has noted [that]
video surveillance can re sult in
D. Audio Surveillance Is
extraordinarily serious intrusions into
Dis tingu ishab le F r om Video
personal privacy. . . .”
Surveillance
This distinction between video and
My colleagues concede that video
audio surveillance is dismissed by my
surveillance “may involve a greater
colleagues. They conclude that “[t]he
intrusion on privacy than audio
difference is not nearly as great as the
surveillance.” Id. at 10-11. Indeed, they
difference between testimony about a
could hardly do otherwise. As the Court
conversation and audio recordings of
of Appeals for the Ninth Circuit has
conversation.” Maj. Op. at 11. My
observed, in the case of video surveillance:
colleagues then correctly note that “the
[t]he governmental intrusion Supreme Court has not drawn any
[is] severe. Hidden video distinction between those two types of
surveillance is one of the evidence,” and they therefore find “no
most intrusive investigative cons titutionally releva nt distinc tion
mechanisms available to law between audio and video surveillance in
enforcement. . . . [W]e the present context.” Id. I must again
[have] pointed out . . . [that] respectfully disagree.14
the defendant ha[s] a
The government correctly states
reasonable expectation to be
that it would be extremely impractical to
free from hidden video
create a situation where the camera’s view
surveillance because the
would be limited to the view of an
video search was directed
straight at him, rather than
being a search of property
14
he did not own or control .... The majority does not state
[and] the silent, unblinking whether the Supreme Court has been
lens of the camera was called upon to decide if there is a
intrusive in a way that no distinction between video and audio
temporary search of the surveillance under the Fourth Amendment.
office could have been. My research did not reveal any such case.
Therefore, the Supreme Court’s failure to
draw a distinction is irrelevant. The Court
United States v. Nerber, 222 F.3d 597, has never been presented with the
603 (9th Cir. 2000). The court in Nerber question.
27
informant. We all know that we can not such factors as the sensitivity of the
see around corners although we can hear microphone, transmitting and receiving
around corners. Everyday experience equipment, as well as the presence of any
teaches enough physics to know that electronic interference in Lee’s room or
observers with different lines of sight will Reilly’s.15 Nevertheless, since no court
have different fields of vision and has yet addressed the impact of such
therefore see different things or the same variables as the sensitivity of the
thing from different angles. One need not equipment on an invited informant
study Gestalt theory to appreciate that two analysis under Hoffa, I will assume
observers who see the same object from arguendo that Agent Reilly could only
different angles may “see” two entirely hear what Beavers heard. However, as I
different objects. The observer at point A have explained, the same can not be said
in a given space may not see the same of the video transmission. This distinction
thing as an observer at point B in the same between audio transmissions and video
space. Moreover, no two observers can transmissions is crucial to any analysis
possibly occupy the exact same space at under Hoffa and its progeny if the Fourth
the same time, and the extent to which Amendment is to withstand the increasing
their observations may differ increases sophistication of electronic surveillance
with the distance between the two equipment.
observers as well as the increase in the
The government argues that unless
angle formed by their location and the
we ignore this technicality “video
location of the objects they are observing.
surveillance would be limited to
The amount of discrepancy in their circumstances where an informant is
observations may also depend on the wearing eyeglasses containing mini-video
presence of objects in the space between recorders[,]” and the government
them and the object they are viewing. emphasizes that “[s]uch a requirement is
There is nothing on this record to support impractical.” Appellee’s Br. at 28.
a conclusion that Agent Reilly could only However, we can not condone a
see what Beavers could see at any given constitutional violation merely because
instance and I think it fair to say that complying with the Constitution would be
proposition is a virtual impossibility given “impractical.” Nor is the government’s
the configuration of the usual hotel suite, sarcastic observation that it “is unaware of
the number of objects inside it, and the fact the existence of such James Bond-like
that Beavers and the video camera could gadgets[,]” id., a satisfactory reply. If the
not possibly have been looking at any
given object from exactly the same place.
15
See The Physics of Sound,
However, Agent Reilly may well
http://interface.cipic.ucdavis.edu/CIL_tut
have been only able to hear the same
orial/3D_phys/3D_phys.htm (viewed on
sounds that Beavers heard depending on
Jan. 22, 2004).
28
government wishes to engage in this kind could capture (albeit at a different angle).”
of invasive surveillance it need only visit Appellee’s Br. at 20. As noted above, the
a neutral magistrate; it need not impose majority accepts this premise, stating that
upon “Q.” 16 it is “satisfied that the tapes do not depict
anything material that Beavers himself
Things that Lee did not knowingly
was not in a position to hear or see while
disclose to Beavers remain within Lee’s
in the room. . . .” Maj. Op. at 13 (emphasis
expectation of privacy so long as that
added). However, that is supported only
expectation is reasonable, and society is
by the government’s unsuppo rted
willing to accept the expectation as such.
assertion. The district court never found
“The test of legitimacy is not whether the
that the camera’s transmissions were no
individual chooses to conceal assertedly
greater than Beavers’ observations. In
‘private’ activity, but w hether the
fact, the district court found this was
government’s intrusion infringes upon the
specifically not the case; it noted that
personal and societal values protected by
“[t]here were instances . . . where
the Amendment.” Oliver v. United States,
perfection was not achieved” such as when
466 U.S. 170, 182-83 (1984).17
Agent Reilly monitored the sitting room
The government maintains that “no while Beavers visited the bathroom. A497.
part of the meeting rooms was obstructed The district court dismissed this
from Beavers’ line of sight, and thus, “imperfection” stating: “[t]he brief
Beavers could see whatever the camera exceptions do not warrant suppression of
any or all of the evidence taken on that
16
ground,” and the court noted the
Those familiar with the James government’s offer to edit out the images
Bond series will recognize “Q” as the recorded while Beavers was in the
bureau chief charged with outfitting Bond bathroom. A498. However, the right of
with all kinds of unimaginable gadgets. privacy can not be quantified in this
17 manner. .
“Since Katz v. United States, 389
U.S. 347 (1967), the touchstone of As the Court explained in Kyllo v.
[Fourth] Amendment analysis has been the United States, 533 U.S. 27, 37 (2001),
question whether a person has a “[i]n the home, our cases show, all details
constitutionally protected reasonable are intimate details, because the entire area
expectation of privacy. The Amendment is held safe from prying government eyes.”
does not protect the merely subjective Thus, everything and anything inside Lee’s
expectation of privacy, but only those hotel suite was an intimate detail meriting
expectations that society is prepared to Fourth Amendment protection to the
recognize as reasonable.” Oliver v. United extent that Lee did not knowingly allow
States, 466 U.S. 170, 177 (1984) (internal Beavers to see it. All such details “were
citations, quotation marks and parentheses intimate details because they were details
omitted).
29
of the home. . . .” Id. at 38. “It matters not Lee’s motion to suppress the video
that the search uncovered nothing of any tapes should have been granted not
great personal value to [Lee] . . . A search because of the materiality of evidence that
is a search, even if it happens to discloses the governmental intrusion disclosed, but
nothing [of value].” Arizona v. Hicks, 480 simply because the government’s actions
U.S. 321, 325 (1987). violated Lee’s reasonable expectation of
privacy in his hotel suite.
The district court’s minimization of
the “imperfection” that occurred, and the E. Bond v. United States
majority’s failure to insure that Agent
Although the case arises in a very
Reilly could see nothing more than
different context, Bond v. United States,
Beavers could see, undermines their entire
529 U.S. 334 (2000), demonstrates the
analysis of Lee’s Fourth Amendment
extent to which society recognizes the
claim. The problem is that Lee’s
reasonableness of a residuum of privacy
reasonable expectation of privacy was
even when some privacy has been
violated, not that the violation may not
surrendered. The defendant there sought
have revealed anything that was “material”
to suppress evidence obtained when his
or of evidentiary significance. “The
carry-on luggage was searched by Border
Fourth Amendment’s protection of the
Patrol Agents who had boarded a bus in
home has never been tied to measurement
Texas to check on the immigration status
of the quality or quantity of information
of passengers. As an agent walked
obtained.” Kyllo, 533 U.S. at 38. Thus,
through the bus he squeezed the soft
“any physical invasion of the structure of
luggage which passengers had placed in an
the home, ‘by even a fraction of an inch,’
overhead storage space. Upon squeezing
[is] too much.” Id. at 37 (quoting U.S. v
the defendant’s bag the agent felt a “brick-
Silverman, 365 U.S. at 512). 18
like” object, which the agent assumed to
be drugs. That search resulted in a
18 warrantless seizure of drugs inside the
The Court also noted in Kyllo that
defendant’s bag. The defendant moved to
“any information regarding the interior of
suppress the evidence. The government
the home that could not otherwise have
argued that the defendant could not have a
been obtained without physical ‘intrusion
reasonable expectation of privacy in
into a constitutionally protected area’. . .
luggage in an overhead compartment on a
constitutes a search.” 533 U.S. at 34.
bus because “matters open to public
Thus, a search of Lee’s suite occurred to
the extent that Agent Reilly was able to see
anything that Beavers was unable to see,
notwithstanding the application of the remained behind. See Katz, 389 U.S. at
invited informant doctrine. Obviously, an 356 (as noted above, the “restraint was
even greater intrusion occurred once imposed by the agents themselves, not by
Beavers left and the government’s camera a judicial officer.”).
30
observation are not protected by the Fourth the Seventh Circuit has explained,
Amendment.” 529 U.S. at 337. The Court “[e]lectronic interception, being by nature
concluded that, although bus passengers a continuing rather than one shot invasion,
expect that their bags may be handled, they is even less discriminating than a physical
do not expect that “other passengers or bus search, because it picks up private
employees will, as a matter of course, feel conversations. . . over a long period of
the bag in an exploratory manner.” Id. at time.” United States v. Torres, 751 F.2d
338-39. Accordingly, although the actual 875, 884 (7th Cir. 1984). This situation is
observation of the defendant’s bag in the exponentially exacerbated where, as here,
overhead luggage compartment was not the government’s ability to see intimate
protected by the Fourth Amendment, details of a defendant’s daily activities as
contents which could only be revealed by he/she goes about his/her business in the
manipulation of the bag were subject to a presumed intimacy of a hotel suite depends
reasonable expectation of privacy. This solely on the discre tion of the
was true even though police only unsupervised agent controlling the
manipulated the outside of the bag while it monitoring equipment.
remained in place in the luggage rack.
[A]lthough we may spend
Although Bond’s carry-on luggage “was
all day in public places,
not part of his person,” the Court was
when we cannot sleep in our
concerned that carry-on luggage is
own home we seek out
generally used to transport “personal items
another private place to
that, for whatever reason, [individuals]
sleep, whether it be a hotel
prefer to keep close at hand.” Id. at 338.
room, or the home of a
Accordingly, the Court recognized the
friend. Society expects at
defendant’s expectation of privacy in the
least as much privacy in
contents of the bag was reasonable.19
these places as in a
In referring to electronic te lephone booth – a
interception of telephone conversations, temporarily private place
whose momentary
occupants’ expectations of
19
Although Bond involves the freedom from intrusion are
“plain view” doctrine, not the “invited recognized as reasonable. . .
informant” doctrine of Hoffa, it is .
nevertheless instructive as it clearly
supports the conclusion that Lee’s
expectation of privacy in the contents of Minnesota v. Olson, 495 U.S. 91, 99
his hotel room was reasonable to the (1990) (internal citation and quotation
extent that he did not allow Beavers to see marks omitted).
his effects.
Absent a pronouncement from the
31
Supreme Court, or controlling precedent Yonn does not involve video surveillance
from this court, I simply can not accept the and is therefore of extremely limited value
idea that a society that defines privacy as a to the discussion here for all the reasons I
fundamental freedom can tolerate the have explained. Myers is also of very
warrantless intrusion that occurred here.20 l i m it e d a p p l i ca tion be caus e th e
conversations there were not recorded in
Myers’ hotel room, nor was he an
F. Myers, Yonn and Padilla
overnight guest in the room where the
In affirming the district court, the conversations were recorded.
majority adopts the analysis in United
Myers went to a townhouse to meet
States v. Myers, 692 F.2d 823 (2d Cir.
with individuals who turned out to be
1982) and United States v. Yonn, 702 F.2d
government agents. The court’s analysis
1341 (11th Cir. 1983) and rejects the
of Myers’ privacy interest consumes only
analysis of the Court of Appeals for the
a single sentence in the lengthy opinion.
First Circuit in United States v. Padilla,
The court states: “[the defendant]’s
520 F.2d 526 (1st Cir. 1975). However,
conversations with undercover agents in
whom he chose to confide were not
privileged, and mechanical recordings of
20
I can not help but wonder if my the sights and sounds to which the agents
colleagues would be as complacent about could have testified were proper
this situation if presented with a male evidence.” 692 F.2d at 859. The court
agent capable of remotely viewing a then cites to United States v. White, 401
female suspect in her hotel suite at any U.S. 745 (1971).
hour of the day or night with only self-
White involved a defendant who
imposed limitations shielding the female
was convicted based upon evidence police
suspect from the wandering eye of the
obtained by using a “radio transmitter” to
male agent. Clearly, given the analysis of
transmit and secretly record incriminating
my colleagues that situation would not
conversations between the defendant and
violate the female suspect’s privacy as
the government informant. Inasmuch as
long as, at some point in the day, she
White involved audio transmissions rather
allowed an informant to enter the sitting
than video transmissions, and the Myers
area of her hotel suite.
Court failed to discuss why the video
I admit that realistic considerations
transmissions had no more impact on a
of taste as well as concerns over a jury’s
subject’s privacy than the audio
reaction to such an intrusion may preclude
transmissions in White, I am remain
that situation from ever occurring. But
unpersuaded.
Katz seeks to insure that privacy
protections be rooted in stronger stuff than On the other hand, Padilla involved
the judgment of a given agent or concerns video surveillance inside a residence and is
about trial tactics.
32
much closer to the situation here, but the retained a privacy interest, no Fourth
court’s analysis reads as though partly Amendment violation occurred.” 326 F.3d
influenced by a concern for the potential at 366. As I note above, no such showing
abuses of emerging surveilla nce has been made here, and the district court
technology. My colleagues criticize those found to the contrary on at least two
concerns noting: “Although Padilla was occasions when Beavers was in the suite.
decided more than a quarter century ago Yet the court in Davis was careful to limit
and has not been followed in any other is holding to only those things that the
circuit, we are not aware of evidence that informer could see w hile in the
the installation of recording devices to defendan t’s presence. The court
monitor mee tin gs atten de d b y a specifically stated: “We . . . extend the rule
cooperating individual has led to the sort of White and Lopez to video recordings
of abuse that the Padilla Court feared.” that capture images visible to the
Maj. Op. at 12. There are several reasons consensual visitor. . . .” Id. at 363.
why that criticism is less than convincing.
G. Dangers Inherent in Warrantless
Initially, I note that the issue of Video Surveillance
whether this technology has been abused
Although sensory enhancement has
was never raised here and there is
not displaced the guarantees of the Fourth
absolutely no record one way or the other
Amendment, “[i]t would be foolish to
as to the extent of government any abuses
contend that the degree of privacy secured
of sophisticated surveillance technology.
to citizens by the Fourth Amendment has
In addition, very few cases have addressed
been entirely unaffected by the advance of
the problem of video surveillance
technology.” Kyllo, 533 U.S. 27, 33-34
involving an invited informant. In one that
(2001). However, given the evolving
has, a miniature camera was carried in the
sophistication of technology, it is
informant’s jacket and transmitted video
inc r e asingly i m p erative th at th e
images to a nearby agent. See United
fundamental liberties guaranteed under the
States v. Davis, 326 F.3d 361, 363 (2d Cir.
Fourth Amendment not be eroded by the
2003). 1 3 The court rejected the
warrantless use of devices that allow the
defendant’s Fourth Amendment argument
government to see through curtains, walls
stating: “[b]ecause the hidden camera did
and doors.
not capture any areas in which Davis
In Kyllo, the Court addressed the
tension between law enforcement’s
13
Since the camera was in the innovative use of technology, and the right
informant’s jacket, there is a stronger basis to privacy. The Court stated:
to assume that the informant’s field of
While it may be difficult to
vision closely approximated that of the
refine Katz when the search
monitoring agent than exists on this
of areas such as telephone
record.
33
booths, automobiles, increasingly sophisticated technology. In
or even the curtilage doing so, the Court expressed concerns
and uncovered very similar to the concerns in Padilla that
portio ns of my colleagues dismiss. Writing for the
residences is at issue, Court, Justice Scalia states: “[r]eversing
in the case of the [the approach outlined in Katz] would
search of the interior leave the homeowner at the mercy of
of homes . . . there is advancing technology . . . that could
a ready criterion, discern all human activity in the home.”
with roots deep in 533 U.S. at 35-36. The Court also
the common law, of mentioned that “[t]he ability to ‘see’
the minimal through walls and other opaque barriers is
e x p e c t a ti o n o f a clear, and scientifically feasible, goal of
privacy that exists, l a w enforcement rese arch an d
and that is development.” Id. at 36 n.3 (citing The
acknowledged to be N a t i o n a l L a w E n f o r c e m e n t a nd
reasonable. To Corrections Technology Center website,
withdraw protection www.nlectc.org/techproj/, as visited on
of this minimum May 3, 2001).
expectation would be
In Silverman, the Court also
to perm it police
mentions electronic devices that, according
technology to erode
to the defendant there, warranted revisiting
the privacy
prior cases including Katz. The Court
guaranteed by the
explains its refusal to do so as follows:
Fourth Amendment.
We are told that re-
examination of the rationale
of those cases . . . is now
533 U.S. at 34 (emphasis in original). 14 essential in the light of
recent and pro jecte d
The Court was careful to reaffirm
developments in the science
Katz in the face of challenges presented by
of electronics. We are
f a vor e d (sic) w ith a
14 description of a device
Although the Court there focused
known as the parabolic
on “the interior of homes,” I have already
microphone which can pick
explained that no distinction can be drawn
up a conversation three
for our purposes between homes, and the
hundred yards away. We
interior of Lee’s hotel suite, Olson, 495
are told of a still
U.S. at 99, and the majority does not
experi me ntal technique
suggest the contrary.
34
whereby a room is At the risk of appearing alarmist, I
flooded with a think it important to note that, in rejecting
certain type of sonic defendant’s invitation to reexamine Court
wave, which, when precedent because of the evolving
perfected, will make technology, the Court explained: “We need
it possible to not here contemplate the Fou rth
overhear everything Amendment implications of these and
said in a room other frightening paraphernalia which the
without ever entering vaunted marvels of an electronic age may
it or even going near visit upon human society.” 365 U.S. at
it. We are informed 509.
of an instrument
The majority lists three reasons for
which can pick up a
rejecting the concerns reflected in Padilla
conversation through
and doubting that “law enforcement [is]
an open offic e
likely to find” abuse of technology “an
window on th e
alluring strategy.” Maj. Op. at 12. My
opposite side of a
colleagues rely upon the possibility of a
busy street.
civil penalty under Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388
Silverman, 365 U.S. at 508 (internal
quotation marks and citation omitted). 15
situation here not only because it involves
only audio monitoring, but also because
the Court’s ruling was based on the fact
15
In Silverman, the owner of a that the defendant did not consent to the
vacant hou se had granted p olice intrusion that resulted from the spike mike
permission to use that property to conduct contacting the heating duct in his property.
a surveillance of an attached property “[T]he officers overheard the petitioners’
whe re police suspected ga mb ling conversations only by usurping part of the
operations were being conducted. They petitioners’ house or office – a heating
conducted the surveillance by means of a system which was an integral part of the
long “spike microphone” which they premises occupied by the petitioners, a
passed through the properties’ joint wall usurpation that was effected without their
until it made contact with a heating duct in knowledge and without their consent.” Id.
the target property. That “duct became in at 511. Here, Beavers’ consent to the
effect a giant microphone, running though placing of the camera limits Silverman’s
the entire house occupied by appellants.” applicability. However, as explained
365 U.S at 506-07 (internal citation above, there remains an issue of Lee’s
omitted). reasonable expectation of privacy under
The case is distinguishable from the Hoffa and its progeny.
35
(1971), the need to acquire a warrant or warrant was never even discussed with
permission of a cooperating individual to Agent Reilly. Moreover, Lee clearly did
enter the premises to install a monitoring not consent to the FBI installing a camera
device, and skepticism th at law that could potentially broadcast some
enforcement has anything to gain because images of his bedroom and bathroom
“[a] video tape . . . generally reveals activities throughout the day and night. As
whether a cooperating individual is explained above, we can not rely upon
present, and without proof of the presence technicalities of consent as found in
of the cooperating individual, the tape is property law to stretch Beavers’ consent
inadmissible.” Maj. Op. at 13. that far. See Stoner v. California, 376 U.S.
483, 489 (1964). Thus, I do not think the
I must respectfully characterize the
legal analysis in Padilla can be dismissed
majority’s trivialization of the potential for
because the opinion might be construed as
abuse as naive. Operation of the
“alarmist.” Rather, the court there
technology mentioned in Silverman and
expressed the very concerns the Fourth
Kyllo requires neither entry nor permission
Amendment was intended to protect;
to enter an area of expected privacy. In
concerns that the Supreme Court also
Kyllo, Justice Scalia mentions several
expressed in Silverman and Kyllo.
technological innovations that require
neither physical entry nor consent. These The majority does concede that it is
“include a ‘Radar-Based Through-the- not willing to go “so far as to say that there
Wall Surveillance System,’ ‘Handheld is no risk of the type of abuse that worried
U ltrasound Through the Wall the Padilla Court,” but concludes that “the
Surveillance,’ and a ‘Radar Flashlight’ that risk is not great enough to justify the
‘will enable law enforcement officers to holding of the Padilla Court.” Maj. Op. at
detect individuals through interior building 13. However, the holding in Padilla rests
walls.’” 533 U.S. at 36 n.3. not upon the risks the court properly
identified, but on a proper reading of
In addition, though my colleagues
Supreme Court precedent. The court
contend that, absent consent, the warrant
explained: “We do not read either White or
requirement can be relied upon to prevent
its predecessors, Katz v. United States, and
abuse of such technology, the facts before
Hoffa v. United States, to go farther than to
us should readily dispose of that notion. It
say that a person has no justifiable
is clear that none of the agents involved in
expectation that one with whom he
monitoring Lee’s hotel suite decided to err
converses will not tell the authorities of the
on the side of caution and obtain a warrant
conversation, and that accurate recordings
prior to installing a video camera that
of the conversation are therefore
could transmit video of his living area, as
permissible.” 520 F.2d 526, 527 (citations
well as parts of the bedroom and bathroom
omitted). See also United States v.
throughout the day and night. In fact, the
Shabazz, 883 F. Supp. 422 (D. Minn.
record shows that the possibility of a
36
1995) (relying upon Padilla to suppress individual is present, and “without proof
audio a n d v i d e o r e co r d i n g s of of the presence of the cooperating
conversations in the defendant’s hotel individual, the tape is inadmissible.” Maj.
room). Op. at 13. However, that misses the point
on several fronts as I have already
M y coll e a g u e s ’ r e m a i n ing
explained. The informant’s presence does
justifications for dismissing the concerns
not guarantee that he/she sees the same
expressed in Padilla are eq ually
thing that the government transmits and
unpersuasive. The “remedy” of a Bivens
records and it is therefore not tantamount
action is often no remedy at all. The
to consent. More importantly, however, as
Fourth Amendment is intended to afford a
the Court clearly noted in Kyllo, it is the
right of privacy, not to compensate
intrusion, not the evidence that is the
individuals whose privacy has been
problem. The suppression of the evidence
violated. Moreover, limitations that arise
is only important because of its impact on
under the doctrine of qualified immunity
police behavior. 17
may make it exceedingly difficult to
establish the predicate showing of III. Conclusion
unreasonableness required to sustain an
The Constitution’s primary bulwark
action under Bivens. where the alleged
against arbitrary intrusions into our privacy
transgression involves the innovative
is the warrant requirement of the Fourth
application of new technology. See
16 Amendment. “The [Fourth Amendment]
Saucier v. Katz, 533 U.S. 194 (2001).
reflects the recognition of the Framers that
Lastly, my colleagues doubt that certain enclaves should be free from
“law enforcement would have much to arbitrary government interference.” Oliver
gain from monitoring conversations that v. United States, 466 U.S. 170, 178 (1984).
occur when a cooperating individual is not
present. A video tape of a conversation
The presence of a search
generally reveals whether a cooperating
warrant serves a high
function. Absent some
grave emergency, the Fourth
16
Under Saucier, a Bivens plaintiff Amendment has interposed
must first establish that legal requirements a magistrate between the
in a given situation would have been clear citizen and the police. This
to a reasonable officer. Bennett v. Murphy, was done not to shield
274 F.3d 133, 136-37 (3d Cir. 2001). The criminals nor to make the
speed of technology’s advance will often
make that an insurmountable hurdle to a
17
B i v e ns plaintiff challengin g th e For a general discussion of the
government’s warrantless use of a new purposes of the exclusionary rule, see
technology. Terry v. Ohio, 392 U.S. 1, 13 (1968).
37
home a safe haven constitutional.” Kyllo, 533 U.S. at 39
for illegal activities. (internal quotation marks omitted). “[A]
It was done so that search which is reasonable at its inception
an objective mind may violate the Fourth Amendment by
might weigh the need virtue of its [subsequent] intolerable
to invade that intensity and scope.” Terry, 392 U.S. at 17.
privacy in order to
Katz was not the first time that the
enforce the law. The
Court has declared that liberties protected
right of privacy was
by a warrant requirement can not be left to
deemed too precious
the discretion of law enforcement officers
to entrust to the
absent exigent circumstances not involved
discretion of those
here. More than half a century ago, the
whose job is the
Supreme Court declared:
detection of crime
and the arrest of T]he point of the Fourth
criminals. Amendment, which is often
not grasped by zealous
officers, is not that it denies
McDonald v. United States, 335 U.S. 451, law enforcement the support
455-56 (1948). of the usual inferences
which reasonable men draw
I believe the government’s end run
from evidence. Its
around that “high function” here requires
protection consists in
that we reverse the district court’s ruling
requ iri n g t h a t those
on Lee’s Fourth Amendment claim. I have
inferences be drawn by a
already explained that, although Agent
n e u t r a l a n d d e t a c h ed
Reilly’s restraint may be commendable
magistrate instead of being
and demonstrate the government’s good
judged by the officer
faith, that is not sufficient given these
engaged in the o ften
facts. Rather, as I explained above, a
competitive enterprise of
warrant is required to insure that such
ferreting out crime.
invasions are warranted and conducted in
an appropriate manner. The invited
informant doctrine only increases the need
Johnson v. United States, 333 U.S. 10, 13-
to obtain a warrant in advance of this type
14 (1948). That is why the warrant
of video surveillance. “No police officer
requirement applies in situations such as
would be able to know in advance whether
his through-the-wall surveillance picks up
intimate details – and thus would be
unable to know in advance whether it is
38
the one before us here.18 right of privacy to law enforcement’s
discretion. Accordingly, I must
I can not endorse my colleague’s
respectfully dissent from my colleagues’
willingness to entrust the fundamental
analysis of Lee’s Fourth Amendment
claim.
18
In arguing that the
government was obligated to obtain a
warrant for this kind of electronic
surveillance, I realize that the authority of
the federal courts to issue search warrants
authorizing video surveillance is uncertain
under Title III of the Omnibus Crime
Control and Safe Streets Act of 1968. See
18 U.S.C. § 2511 (a section of Title III).
We have never determined whether
Title III authorizes federal courts to issue
warrants for video surveillance, and there
is considerable authority that it doesn’t.
See United States v. Falls, 34 F.3d 674,
679 (8th Cir. 1994); United States v.
Koyomejian, 970 F.2d 536, 539 (9th Cir.
1992); United States v. Torres, 751 F.2d
875, 880 (7th Cir. 1984). However,
although these courts have concluded that
Title III does not give federal courts that
authority, courts have consistently found
that authority under Fed. R. Crim. P. 41(b),
as well as under the inherent supervisory
powers of federal courts, so long as any
warrant that may issue contains the
safeguards of the restrictions embodied in
Title III. See, e.g., In the Matter of the
Application of the United States of
America for an Order Directing X to
Provide Access to Videotapes, 03-MC-89,
2003 U.S. Dist. LEXIS 15227 at *4, *5
n.1, *9 n.3 (D. Md. Aug. 22, 2003); see
also Falls, 34 F.3d 678-79; Koyomejian,
970 F.2d at 542; Torres, 751 F.2d at 877-
78.
39