United States v. Lopez

United States Court of Appeals
For the First Circuit

No. 01-1390

UNITED STATES OF AMERICA,
Appellee,

v.

AMADO LÓPEZ,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Torruella, Circuit Judge,

Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.

Peter E. Rodway, with whom Rodway & Horodyski was on brief,
for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
Appellate Chief, with whom Paula D. Silsby, United States Attorney,
were on brief, for appellee.

August 20, 2002
 TORRUELLA, Circuit Judge. Defendant-appellant, Amado

López ("López"), entered a conditional plea of guilty on charges of

conspiring to possess cocaine and cocaine base with intent to

distribute. See 21 U.S.C. §§ 841, 846. On appeal, López

challenges an adverse ruling below on his motion to suppress

evidence obtained pursuant to a wiretap warrant governed by Title

III of the Omnibus Crime Control and Safe Streets Act of 1968

("Title III"), 18 U.S.C. §§ 2510-22. For the first time on appeal,

the appellant also raises a constitutional challenge to the

sentence imposed by the district court. For the reasons set forth
below, we reject López's arguments and affirm the rulings of the

district court.

I. BACKGROUND

A. The conspiracy

In early April 1999, an agent of the Drug Enforcement

Administration ("DEA") received information from a confidential

source indicating that a cocaine distribution conspiracy was

operating in the area of Brunswick, Maine. With the help of the

confidential source, undercover DEA agents were able to contact

members of the conspiracy directly and arrange several controlled

purchases of cocaine. The DEA was also able to gain information
concerning the conspiracy through other investigative techniques,
including visual surveillance and pen-register analysis. In

addition, DEA agents obtained the assistance of at least one other

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confidential source who was able to identify other members of the

conspiracy.

On November 17, 1999, the government applied for
authorization to conduct wiretaps of two mobile telephones

allegedly used by members of the drug distribution ring. Along

with the application, DEA Agent Brian Boyle ("Boyle") submitted an
affidavit describing the investigation of the drug conspiracy to

date. Boyle detailed the progress of the investigation and various

investigative techniques that either had been tried previously or

were deemed unlikely to succeed. Based on the government's

application, Chief U.S. District Judge D. Brock Hornby granted the

wiretap application. The order issued by Chief Judge Hornby

provided:
Wherefore, it is hereby Ordered that special
agents of the United States Drug Enforcement
Administration and other investigative and law
enforcement officers, assisted, if necessary,
by qualified translators, pursuant to the
application of the Assistant United States
Attorney Jonathan A. Toof, are authorized to
intercept and record wire communications to
and from the cellular telephone . . . assigned
and billed to Orlando Santana, Jr. . . . .
The wiretap plant was operated for approximately twenty

days. As a result of certain subscriber changes, the order was

amended once during the course of the plant's operation. And on

November 29 and December 7, 1999, the government filed progress

reports with the court setting forth the number of calls

intercepted, samples of the types of conversations recorded, and

names of conspirators who had and had not been identified. See 18

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U.S.C. § 2518(6) (providing that the authorizing judge may require

the government to submit periodic progress reports).

Ultimately, the wiretap intercepted approximately 1700
telephone calls. Throughout the duration of the wiretap, the

government relied on the services of civilian monitors working

under contract with the government. The civilian monitors provided
some translation services; however, the majority of the civilians'

services consisted of monitoring all intercepted calls and

performing "minimization" -- that is, the implementation of

procedures established by the government to ensure that the fewest

number of non-pertinent (or "innocent") calls are intercepted. See

18 U.S.C. § 2518(5) (providing for a minimization requirement in

any order approving or extending a wiretap warrant).
Based on the information obtained through the wiretap,

the government was able to build a formidable case against the

conspiracy members. According to the appellant, a number of the
intercepted telephone calls were particularly incriminating to him.

B. Proceedings below

López was indicted and charged together with seventeen
other co-conspirators. Count I of the indictment charged López and

the other defendants with a conspiracy to possess with intent to
distribute cocaine and cocaine base in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846. The remaining counts of the

seven-count indictment pertained to conspirators other than López.
The case was assigned to U.S. District Judge Gene Carter.

-4-
 López, joined by most of the other defendants, moved to

suppress the evidence gathered by the wiretap. López argued below:

1) that there was no probable cause to issue the wiretap
authorization; 2) that the government failed to demonstrate in its

application for wiretap authorization that conventional

investigative techniques were ineffective; and 3) that the
government failed to properly minimize the interception of the

telephone calls. Judge Carter denied López's initial motion to

suppress, but raised concerns in his written decision about the

government's use of civilian monitors to conduct the minimization.

See United States v. López, No. Crim. 99-79-P-V, 2000 WL 761977

(D. Me. April 28, 2000). Judge Carter then invited all of the

defendants to file additional motions to suppress for the purpose
of addressing this issue. López did so and argued that the

government's use of civilian monitors exceeded the scope of the

original wiretap authorization and, as a consequence, resulted in
improper minimization of calls to the targeted phones. After this

additional round of briefing, Judge Carter denied the motion to

suppress. See United States v. López, 106 F. Supp. 2d 92 (D. Me.

2000).

Following the denial of the motion, López entered a

conditional plea of guilty, preserving for appeal the admissibility

of the wiretap evidence. Judge Carter then sentenced López to 240

months in prison. This timely appeal followed.

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 II. TITLE III

By enacting Title III, Congress sought to protect the

privacy of wire and oral communications while, at the same time,

authorizing the use of electronic surveillance evidence obtained by

law enforcement under specified conditions. See Bartnicki v.

Vopper, 532 U.S. 514, 523 (2001). In accordance with Congress's

concern for preserving privacy, Title III makes the interception of

electronic communications by law enforcement an extraordinary

investigative technique whose use "is to be distinctly the

exception -- not the rule." United States v. Hoffman, 832 F.2d
1299, 1306 (1st Cir. 1987). The statute thus imposes a number of

strict requirements on the issuance and use of wiretap warrants.
See United States v. Giordano, 416 U.S. 505, 515 (1974).

At the outset, a duly-authorized law enforcement officer

must obtain approval from the Attorney General of the United States
or a specially designated assistant attorney general in order to
apply to a federal judge for a wiretap. See 18 U.S.C. § 2516(1).

Once such approval is obtained, the officer must present a written
application for a wiretap to the judge. Before issuing the
wiretap, the judge must make certain enumerated findings and issue

an ex parte order containing specified elements. See 18 U.S.C.
§ 2518(1), (3)-(4).
In the application for the wiretap, the government must

make a detailed proffer including: (a) the identity of the
investigative or law enforcement officer making the application,

and the officer authorizing the application; (b) a full and

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complete statement of the facts and circumstances justifying the

applicant's belief that an order should be issued;1 (c) a full and

complete statement as to whether or not other investigative
procedures have been tried and failed or why they appear to be too

dangerous or unlikely to succeed if tried; (d) a statement of the

period of time for which the interception is required to be
maintained; and (e) a full and complete statement of the facts

concerning all previous applications involving any of the same

persons, facilities, or places specified in the application. See

18 U.S.C. § 2518(1)(a)-(e).

Finally, in the event the application is granted, Title

III provides numerous grounds upon which communications obtained

pursuant to a Title III warrant may be suppressed in any
proceeding. Specifically, the statute states:

Any aggrieved person in any trial, hearing, or
proceeding in or before any court, department,
officer, agency, regulatory body, or other
authority of the United States, a State, or a
political subdivision thereof, may move to
suppress the contents of any wire or oral
communication intercepted pursuant to this
chapter, or evidence derived therefrom, on the
grounds that -- (i) the communication was
unlawfully intercepted; (ii) the order or
authorization or approval under which it was
intercepted is insufficient on its face; or
(iii) the interception was not made in

1
The government's statement of the facts and circumstances
justifying its belief that an order should be issued must include:
details as to the particular offense that has been, is being, or is
about to be committed; a description of the nature and location of
the facilities from which the communication is to be intercepted;
a description of the type of communications sought to be
intercepted; and the identity of the person committing the offense
and whose communications are to be intercepted. See 18 U.S.C.
§ 2518(1)(b)(i)-(iv).

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 conformity with the order of authorization or
approval . . . .
Id. § 2518(10)(a).

López makes sundry arguments as to why the incriminating

communications intercepted by the government must be suppressed.
He argues first that the government's application was inadequate on

its face to satisfy the so-called "necessity requirement" of Title

III. See id. § 2518(1)(c). López also argues that the government

neglected to disclose its intention to use civilian monitors and,

therefore, that its subsequent use of such monitors violates Title

III and compels the suppression of the intercepted calls. Lastly,

López raises challenges to the monitor's minimization efforts and
the supervision of the monitors by government agents. We address

each of López's arguments in turn.

A. The "necessity requirement"

Title III requires that a wiretap application include "a

full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they
reasonably appear to be unlikely to succeed if tried or to be too

dangerous." Hoffman, 832 F.2d at 1306 (quoting 18 U.S.C.

§ 2518(1)(c)); see also United States v. Kahn, 415 U.S. 143, 153
n.12 (1974) (noting that the necessity requirement was "designed to

assure that wiretapping is not resorted to in situations where
traditional investigative techniques would suffice to expose the
crime"). In order to satisfy this requirement of necessity, the

government must demonstrate that it has made "a reasonable, good

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faith effort to run the gamut of normal investigative procedures

before resorting to means so intrusive as electronic interception

of telephone calls." Hoffman, 832 F.2d at 1306-07. However, the
necessity requirement is not tantamount to an exhaustion

requirement. See United States v. Edwards, 69 F.3d 419, 429 (10th

Cir. 1995) ("[L]aw enforcement officials are not required to
exhaust all other conceivable investigative procedures before

resorting to wiretapping.") (citations and quotations omitted); see

also United States v. David, 940 F.2d 722, 728-29 (1st Cir. 1991)

(holding that necessity was shown even though government had not

attempted to use search warrants, pen registers, or undercover

agents). Consequently, Title III does not "force the government to

run outlandish risks . . . before seeking a wiretap." Hoffman, 832
F.2d at 1306.

In reviewing the sufficiency of the government's showing

of necessity, the "'appeals court role is not to make a de novo

determination of sufficiency as if it were [the issuing judge], but

to decide if the facts set forth in the application were minimally

adequate to support the determination that was made.'" United

States v. Ashley, 876 F.2d 1069, 1074 (1st Cir. 1989) (quoting

United States v. Scibelli, 549 F.2d 222, 226 (1st Cir. 1977)).

That is, "[t]he sufficiency of the affidavit is to be upheld where

the appellate court determines that the issuing court could have

reasonably concluded that normal investigatory procedures

reasonably appeared to be unlikely to succeed." Id.

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 López argues that the government's application was

insufficient on its face. He characterizes the government's

affidavit in support of the application as largely composed of
conclusory assertions devoid of factual specificity. He also

contends that the application reveals that the government failed to

utilize some investigative avenues that still remained open.
To be sure, the government's affidavit must show with

specificity why ordinary means of investigation will fail;

conclusory statements without factual support are not sufficient.

See 18 U.S.C. § 2518(1)(c) (requiring a "full and complete

statement"); see also United States v. Castillo-García, 117 F.3d

1179, 1194 (10th Cir. 1997) ("[G]eneralities, or statements in the

conclusory language of the statute, are insufficient to support a
wiretap application."). But in this case, we are satisfied that

the government's application was more than minimally adequate to

persuade the issuing judge that the warrant was reasonably
necessary. It would be de trop for us to reiterate the analysis of

Judge Carter in the court below, which we find to be both thorough

and well reasoned, so we shall confine ourselves to some key

observations.

The affidavit of DEA Agent Boyle described several

alternative investigative techniques that had been tried and

failed, appeared unlikely to succeed, might alert the conspirators,

or were too dangerous to pursue.2 Although several of the

2
Specifically, Agent Boyle listed six such techniques: 1)
physical surveillance; 2) grand jury subpoenas; 3) undercover drug
purchases; 4) pen registers; 5) trap-and-trace devices; and 6)

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techniques (such as physical surveillance, interrogation of

informants, pen-register analysis, and controlled buys by

undercover agents) had proven valuable in the past, the utility of
those tools was exhausted or greatly diminished by the time the

government sought its warrant.

As the details of Agent Boyle's affidavit demonstrate,
the traditional techniques employed by the DEA over the course of

several months had failed to establish the identity of some

conspirators, particularly those at the top of the distribution

chain. See United States v. Díaz, 176 F.3d 52, 110-11 (2d Cir.

1999) (holding that necessity for wiretap was shown because

traditional techniques were not adequate to reveal sources of drug

supply and location of drug proceeds); United States v. Cooper, 868
F.2d 1505, 1509-10 (6th Cir. 1989) (holding that necessity for

wiretap was shown because wiretap followed lengthy investigation in

which normal investigative procedures were used extensively but had
not identified customers and agents of prescription drug ring).

Moreover, the affidavit documents specific incidents suggesting

that the further use of surveillance and undercover operations

risked revealing the investigation and placing law enforcement

officers in harm's way. For example, one conspirator expressed

search warrants. Cf. United States v. VanMeter, 278 F.3d 1156,
1153-64 (10th Cir. 2002) (noting that normal investigative
procedures subject to 18 U.S.C. § 2518(1)(c) include: 1) standard
visual and aural surveillance; 2) questioning and interrogation of
witnesses or participants (including the use of grand juries and
the grant of immunity if necessary); 3) use of search warrants; 4)
infiltration of conspiratorial groups by undercover agents; and 5)
use of pen registers and trap-and-trace devices).

-11-
concern to an undercover agent about the "heat" in the area.

Months later, the same conspirator refused to speak to or deal with

the agent. One of the government's cooperating witnesses was also
questioned by conspiracy members as to whether he was in league

with the authorities. And the affidavit points to other instances

where the conspirators engaged in counter-surveillance designed to
avoid detection by law enforcement. See United States v. Williams,

124 F.3d 411, 418 (3d Cir. 1997) (necessity shown because

government had been unable to use a confidential informant without

high risk of discovery, and co-conspirators used evasive techniques

such as electronic detection equipment); United States v.

Carrazana, 921 F.2d 1557, 1564-65 (11th Cir. 1991) (necessity for

wiretap shown because other investigative methods were unsuccessful
due to drug ring's counter-surveillance protection).

Other investigative techniques that were not tried by the

government were also inadequate because they might have revealed
the ongoing investigation. The execution of a search warrant or

issuance of grand jury subpoenas would have likely alerted other

conspiracy members to law enforcement's investigation. Also,

although López suggests that a handful of cooperating sources

(including two active conspiracy members who had been arrested

during the course of the investigation) could have provided useful

grand jury testimony, we think the issuing judge would have been

justified in doubting the efficacy of such action. As Agent Boyle

states in his affidavit, two of the cooperating sources had limited

information concerning the full scope of the conspiracy, and

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calling other cooperating sources before the grand jury could

arouse the suspicions of others.

Viewed as a whole, the information contained in the
government's application for the Title III warrant was not, as

López suggests, mere boilerplate. Nor were the circumstances

surrounding the government's investigation of the drug conspiracy
so commonplace or generic that our approval of the issuance of the

warrant in this case would assure that a warrant could be issued in

virtually any drug investigation. The government provided the

issuing judge with specific factors -- particularly the DEA's

inability to identify key conspiracy members and the conspiracy's

growing awareness of law enforcement activity -- that militated in

favor of using a more drastic investigative tool. We therefore
affirm the district court's ruling that the government's warrant

application satisfied Title III's necessity requirement.

B. Civilian monitors

López argues next that the communications must be

suppressed because the government violated Title III by failing to
disclose to the issuing judge that civilian monitors would be
utilized during the interception process. Although we agree with

López that the government must disclose its intention to use
civilian monitors, we do not find the failure to do so in this case
to be sufficient grounds to suppress the communications.

There is no doubt that the use of civilian monitors for
the execution of a wiretap cannot constitute a per se violation of

Title III, since the statute explicitly contemplates the assistance

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of civilian personnel. Specifically, Title III provides, in

relevant part: "An interception under this chapter may be conducted

in whole or in part by Government personnel, or by an individual
operating under a contract with the Government, acting under the

supervision of an investigative or law enforcement officer

authorized to conduct the interception." 18 U.S.C. § 2518(5).
Nevertheless, Title III generally places a burden of "full and

complete" disclosure on the government in its application for a

wiretap, see id. § 2518(1)(b),(c) & (d), and the issuing judge is

obliged to craft the order approving the wiretap with specificity,

see id. § 2518(4). These provisions necessitate candor on the part

of the government -- a candor that, in our view, would generally be

undermined if the government could withhold important information
about the manner in which the wiretap will be conducted.

The government's failure to disclose its plans to use

civilian monitors frustrates the objectives of other provisions of
Title III as well. For example, the statute mandates that the

issuing judge include in any order a provision requiring that the

wiretap be conducted in such a way as to minimize nonpertinent

communications. See id. § 2518(5). If the issuing judge is kept

ignorant of the manner in which the government intends to execute

the wiretap, this diminishes the judge's ability to craft an order

that is sufficiently protective of the minimization requirement.

In addition, the statute permits the issuing judge to require

status reports showing "what progress has been made toward

achievement of the authorized objective and the need for continued

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interception." Id. § 2518(6). Yet, without information on how the

calls are being intercepted, and by what personnel, the judge's

impression of the progress of the wiretap may be mistaken.
In light of these considerations, we hold that the

government must disclose, as a part of its application for a

wiretap warrant, any intention to utilize the services of civilian
monitors in the execution of the warrant. To hold otherwise would,

in our view, run counter to the general duty of candor the statute

imposes on the government and impair the issuing judge's ability to

preserve important privacy interests protected by Title III.

Having established that Title III requires the government

to provide the issuing judge with information on any plans to

employ civilian monitors, we turn to the question of whether the
government's conduct in this particular case requires the

suppression of the communications that incriminate López. Title

III sets out a broadly-worded statutory exclusion rule that, on its
face, prohibits the use at trial of any evidence "derived from" a

wiretap "if the disclosure of that information would be in

violation of this chapter." Id. § 2515. The government's failure

to disclose its intention to use civilian monitors, which violates

an obligation under Title III, thus lays the foundation for a

motion to suppress.3

3
The district court separated its analysis of suppression into
two categories, reasoning that the failure to disclose provided
grounds for suppression 18 U.S.C. § 2518(10)(a)(i) (providing for
suppression of communications that are "unlawfully intercepted"),
while the resulting failure of the warrant to authorize civilian
monitors might give rise to a suppression motion under 18 U.S.C.
§ 2518(10)(a)(iii) (providing for suppression where "the

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 Despite the broad language of § 2515, "it is well-settled

that not every failure to comply fully with any requirement

provided in Title III necessitates suppression." United States v.

Escobar-De Jesús, 187 F.3d 148, 171 (1st Cir. 1999); see United

States v. Donovan, 429 U.S. 413, 432-34 (1977); United States v.

Chavez, 416 U.S. 562, 571-79 (1974). A court evaluating a
suppression motion must consider whether the underlying violation

of Title III frustrated the protective purpose of that statute in

a particular case. Thus, "violations of even . . . central

requirements do not mandate suppression if the government

demonstrates to the court's satisfaction that the statutory purpose

has been achieved despite the violation." United States v.

Cunningham, 113 F.3d 289, 293-94 (1st Cir. 1997) (quoting United

States v. Johnson, 696 F.2d 115, 121 (D.C. Cir. 1982)). Without

trivializing the nature of the violation in this case, we find that

the wiretap was conducted in manner that preserved the core
protective purposes of Title III.

The restrictions in Title III aim to limit the use of
wiretapping to those situations where it is truly justified, and to

protect privacy as mush as reasonably possible when wiretapping is

used. See Escobar-De Jesús, 187 F.3d at 171. The undisclosed use

of civilian monitors did not affect the likelihood that the wiretap

would be authorized in the first place, nor did it increase the

interception was not made in conformity with the order of
authorization or approval"). See López, 106 F. Supp. 2d at 97-98.
Because our suppression analysis evaluates the same factors and
reaches the same conclusion on both of these arguably distinct
grounds, we consider them together.

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wiretap's intrusion on privacy interests. The principal purposes

of Title III were not frustrated by the violations here.

In addition, the district court's unchallenged findings
demonstrate that, aside from the failure to disclose the use of

civilian monitors, the wiretap was conducted in an admirably

professional manner. Privacy concerns were protected to the
greatest extent possible. Suppression is less likely to be

necessary when the violation of Title III represents an isolated

flaw in "a process that in all other important respects complied

with the statute." Cunnignham, 113 F.3d at 294.

Finally, there is no indication that the government's

violations of Title III were willful or knowing. We are the first

court of appeals to hold that Title III requires the government to
disclose any plans to employ civilian monitors; indeed, we appear

to be the first court that has been squarely presented with the

issue. Thus, the law enforcement in this case presumably did not
realize that their undisclosed use of civilian monitors could

constitute a violation of the statute. The district court

determined that, although the used of civilian monitors departed

from the precise terms of the order authorizing the wiretap, "the

violation was inadvertent, as opposed to a conscious decision by

the Government or law enforcement officers to take action they knew

to be contrary to an intercept order." López, 106 F. Supp. 2d at

100.

In sum, Title III imposes an obligation on the government

to disclose to the issuing judge any plans to use civilian monitors

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in the execution of a wiretap warrant. In the case at hand,

however, the government's failure to make that disclosure, along

with the government's seeming violation of an order that did not
permit the use of civilian monitors, does not provide a valid basis

for suppressing the intercepted communications.

C. Miscellaneous issues

López offers two remaining arguments as to why the

intercepted communications should be suppressed. We think both

arguments lack merit and address them only briefly.

First, López contends that the government violated the
requirement that civilian monitors conducting an interception must

be "supervis[ed]" by an "investigative or law enforcement officer
authorized to conduct the interception." 18 U.S.C. § 2518(5).
Even assuming that a violation of this requirement could

conceivably provide the basis for a motion to suppress, López's
argument in this case is sunk by the findings of the district
court.

According to the opinion below, the civilian monitors,
who worked sixteen-hour shifts every day for twenty days, were
supervised at all times by a shift supervisor. The one apparent

exception was a single instance where the supervising agent left
the plant for ten to fifteen minutes to conduct routine
surveillance. López does not appear to challenge Judge Carter's

findings as clearly erroneous. See United States v. Hawkins, 279

F.3d 83, 85 (1st Cir. 2002) ("[W]e review the factual findings of

the district court for clear error."). Instead he argues that, as

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a matter of law, the single lapse of supervision taints all of the

intercepted communications. We disagree, and think that such a de

minimis departure from the supervision standard is no basis for
excluding the communications. This is especially so where, as

here, López makes no attempt to identify any prejudice arising from

the interception of communications that might have occurred during
the brief unsupervised period.

Second, López argues that the civilian monitors were

ineffective at minimizing non-pertinent calls, as is required by

18 U.S.C. § 2518(5). The minimization requirement "spotlights the

interest in confining intrusions as narrowly as possible so as not

to trench impermissibly upon the personal lives and privacy of

wiretap targets and those who, often innocently, come into contact
with such suspects." Hoffman, 832 F.2d at 1307. When fulfilling

its obligation to minimize unauthorized communications, "'[t]he

government is held to a standard of honest effort; perfection is
usually not attainable, and is certainly not legally required.'"

United States v. Charles, 213 F.3d 10, 22 (1st Cir.) (quoting

United States v. Uribe, 890 F.2d 554, 557 (1st Cir. 1989)), cert.

denied, 531 U.S. 915 (2000). In examining the government's

adherence to this standard, we look at several factors, including:

1) the nature and complexity of the suspected crimes; 2) the

thoroughness of the government's precautions to bring about

minimization; and 3) the degree of judicial supervision over the

surveillance process. See United States v. London, 66 F.3d 1227,

1236 (1st Cir. 1995).

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 Judged by these criteria, the government's minimization

efforts in this case far exceeded what was required; indeed, its

performance bordered on perfection. The wiretap intercepted
approximately 1700 calls. Of that large number, López and his co-

defendants could identify only six calls that arguably were

unrelated to the drug conspiracy. This amounts to only 0.35% of
the total number of calls intercepted. Furthermore, the district

court analyzed the six challenged calls and found as a fact,

unchallenged in this appeal, that only two of them were improperly

minimized. Thus, the sum total of impermissibly intercepted calls

was a mere 0.11% of the total calls. López, 2000 WL 761977, at *9.

Although "blind reliance on the percentage of

nonpertinent calls intercepted is not a sure guide" to determining
whether the minimization was proper, Scott v. United States, 436

U.S. 128, 140 (1978), the nearly flawless performance of the

government in this case carries significant weight. Cf. United

States v. Bennett, 219 F.3d 1117, 1124 (9th Cir.) (minimization

requirement met where improperly intercepted calls accounted for

only 3.65% of 7322 total intercepted calls), cert. denied, 531 U.S.

1056 (2000). Plus, the findings of the district court support the

conclusion that the government established and observed thorough

precautions to bring about minimization and that there was a

significant degree of judicial supervision over the surveillance

process. See London, 66 F.3d at 1236. Finally, as the district

court found, López was not prejudiced in any way by the improper

minimization of the two calls. The district court's decision not

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to suppress the communications was therefore justified in all

respects.

III. SENTENCING

Forging ahead pro se, López challenges the 240-month

sentence imposed by the district court as violative of the Supreme

Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).4

Because we conclude that López voluntarily relinquished his

Apprendi arguments below, we affirm the sentence imposed by the
district court.

The indictment under which López was charged alleged that
he was subject to the penalty provisions of 21 U.S.C. § 841

(b)(1)(A) (providing for a maximum sentence of life). However, the
indictment, which was issued pre-Apprendi, did not specify a drug

quantity. After Apprendi was decided, the government agreed not to

seek a new indictment that alleged a drug amount and to limit
López's sentence exposure to 20 years.
The flawed indictment became a well-worn topic in the

district court during the sentencing proceedings. On October 3,
2000, after hearings and rulings on suppression motions, López
appeared, with counsel, to enter a plea of guilty. When asked

whether he was pleading guilty because he was guilty and for no

4
The central teaching of Apprendi is that the Fourteenth
Amendment right to due process and the Sixth Amendment right to
trial by jury require that "'any fact (other than prior conviction)
that increases the maximum penalty for a crime must be charged in
an indictment, submitted to a jury, and proven beyond a reasonable
doubt.'" 530 U.S. at 476 (quoting Jones v. United States, 526 U.S.
227, 243 n.6 (1999)).

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other reason, López responded, "I have another reason . . . [t]he

Apprendi case." At this point, defense counsel interjected, "What

I have told [López] . . . is that it is my belief that . . .
Apprendi can only allow for a sentence up to 20 years . . . ."

Judge Carter conceded the irregularity but noted that the

government stood ready to re-charge López under an indictment that
specified a drug quantity. Judge Carter also pointed out that a

superceding indictment could increase the maximum sentence exposure

beyond 240 months. Defense counsel then admitted that he had

advised López "from a strategic standpoint" that it was in his best

interest to plead guilty before the government could take such

action.

After this discussion, the court again asked López if he
was pleading guilty because he was guilty. López replied that he

was. The court then asked, "Is the only other reason you have to

tender this plea, your desire to limit exposure to the length of
the period of incarceration?" López replied, "yes." After

explaining to López the rights that he surrendered by pleading

guilty, Judge Carter ascertained that López understood and waived

these rights. López was then sentenced to 240 months in prison.

For the first time on appeal, López now argues that his

sentence violated Apprendi because the government was derelict in

its duty to charge a drug quantity in the indictment. Finding that

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this case presents one of the clearest examples of waiver

imaginable, we reject López's entreaty.5

A party's mere forfeiture, or failure to timely assert a
right, does not preclude appellate review for "plain error" under

Federal Rule of Criminal Procedure 52(b), but a waiver of a right

bars even this highly deferential form of scrutiny. See United

States v. Olano, 507 U.S. 725, 733 (1993); see also United States

v. Lemmerer, 277 F.3d 579, 591 n.4 (1st Cir. 2002). In order for

us to find waiver, the party must have made an "'intentional

relinquishment or abandonment'" of a known right. United States v.

Mitchell, 85 F.3d 800, 807 (1st Cir. 1996) (quoting Olano, 507 U.S.

at 733).

In this case, there is no doubt that López was well aware
that Apprendi carried implications for his case. As López stated

during the plea colloquy, his attorney had advised him to plead

guilty under the present indictment precisely because of the effect
of Apprendi. Judge Carter also apprised López of the potential

Apprendi issue. Indeed, Judge Carter guaranteed that the sentence

5
López also appears to argue that absence of a drug quantity
element in the indictment deprived the district court of
jurisdiction and requires the vacatur of his sentence. This
argument is foreclosed by the Supreme Court's recent decision in
United States v. Cotton, 122 S. Ct. 1781 (2002). Addressing a
defendant's conviction under of 21 U.S.C. §§ 846 and 841(a)(1), the
Court in Cotton unanimously held that the failure of the government
to include a drug quantity in the indictment was not a
jurisdictional defect that deprived a federal court of the power to
impose a sentence. See 122 S. Ct. at 1785. Instead, the Court
found that a sentence based on an indictment lacking a specific
drug quantity would be reviewed for "plain error." Id. Since we
find no valid claim of error to review, López's jurisdictional
argument is a non-starter.

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imposed would be consistent with Apprendi, and stated that he would

allow López to withdraw his guilty plea and proceed to trial if a

sentence in excess of 20 years were handed down.6 When the 20-year
sentence was announced, López did not object or seek to withdraw

his plea.

Furthermore, López gained a valuable benefit by
acquiescing to the charges in the original indictment. As noted

above, the government was prepared to seek a superseding indictment

with a specific drug quantity. Had the government done so, López

would have doubtlessly faced a harsher sentence. For this reason,

López's counsel recognized that, "from a strategic standpoint,"

López was better off pleading guilty to the original indictment.

López also admitted that his plea was based in part on his desire
to limit his exposure for purposes of sentencing. López cannot now

appeal what he earlier used as a pawn to better his situation.

Because López knowingly and voluntarily relinquished any
appeal stemming from the Supreme Court's decision in Apprendi (and

6
The sentence imposed by the district court insured that, even if
López's belated Apprendi arguments could be reviewed for "plain
error," see Fed. R. Crim. P. 52(b), there is simply no "error" to
correct. The "default" or "catchall" provision of the statute
under which López was charged, 21 U.S.C. § 841(b)(1)(C), prescribes
that a 240-month maximum sentence may be imposed for trafficking
even the smallest quantity of cocaine. United States v. López-
López, 282 F.3d 1, 22 (1st Cir.), cert. denied, 122 S. Ct. 2642
(2002). Thus, Judge Carter's sentence, set at the upper limit of
what is permitted by 21 U.S.C. § 841(b)(1)(C), did not violate
Apprendi, which "applies only when the disputed 'fact' enlarges the
applicable statutory maximum and the defendant's sentence exceeds
the original maximum." United States v. Caba, 241 F.3d 98, 101
(1st Cir. 2001).

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thereby gained a valuable benefit), we cannot review his claims of

error.

IV. CONCLUSION

The district court handled this case in praiseworthy

fashion. We find nothing in López's appeal that would compel any

alteration of the rulings below.

Affirmed.

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