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Precedential or Non-Precedential: Precedential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