Ricky Wahchumwah v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-30101
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-02035-
EFS-1
RICKY S. WAHCHUMWAH , AKA
Ricky Sam Wahchumwah,
Defendant-Appellant. ORDER AND
AMENDED
OPINION

Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding

Argued and Submitted
October 9, 2012—Seattle, Washington

Filed November 27, 2012
Amended March 4, 2013

Before: Alex Kozinski, Chief Judge, A. Wallace
Tashima and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.
2 UNITED STATES V . WAHCHUMWAH

SUMMARY*

Criminal Law

The panel affirmed in part and reversed in part a criminal
judgment in a case in which a jury convicted the defendant of
offenses relating to the sale of eagle parts.

The panel held that an undercover agent’s warrantless use
of a concealed audio-video device in a home into which he
has been invited by a suspect does not violate the Fourth
Amendment.

The panel held that Count 2 charging the defendant with
offering to sell Golden Eagle tails, in violation of the Bald
and Golden Eagle Protection Act, and Count 3 charging the
defendant with the subsequent sale of a Golden Eagle tail, in
violation of the Lacey Act, are multiplicitous because the
offer to sell is a lesser included offense. The panel held that
Count 4 charging the defendant with offering to sell a pair of
eagle plumes from a collection of plumes and Count 5
charging him with the subsequent sale of a pair of plumes,
both premised on a violation of the Bald and Golden Eagle
Protection Act, are likewise multiplicitous.

The panel rejected the defendant’s objection to the
admission of certain photographs of eagles and other bird
parts under Fed. R. Evid. 403.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V . WAHCHUMWAH 3

The panel held that the district court did not err under the
Confrontation Clause by permitting officers to testify to
receiving complaints from unnamed tribal members that the
defendant was selling eagle parts, when the complaints were
offered not to prove that the defendant was selling eagle
parts, but merely to explain why federal agents began
investigating him.

COUNSEL

Robert M. Seines (argued), Liberty Lake, Washington, for
Defendant-Appellant.

Michael C. Ormsby, United States Attorney, and Timothy J.
Ohms, Assistant United States Attorney (argued), United
States Attorney’s Office for the Eastern District of
Washington, Spokane, Washington; Katherine Wade Hazard,
Environmental and Natural Resources Division, United States
Department of Justice, Washington, D.C., for Plaintiff-
Appellee.

Hanni M. Fakhoury, Electronic Frontier Foundation, San
Francisco, California, for Amicus Curiae.

ORDER

The opinion filed November 27, 2012, and published at
2012 WL 5951624, is amended as follows:

In the third paragraph on page *3, add the following
footnote after the sentence ending with :
4 UNITED STATES V . WAHCHUMWAH

With this amendment, the panel has unanimously voted
to deny the petition for rehearing. Chief Judge Kozinski and
Judge M. Smith have voted to deny the petition for rehearing
en banc, and Judge Tashima so recommends.

The full court has been advised of the petition for
rehearing en banc and no judge of the court has requested a
vote on it. Fed. R. App. P. 35(f).

The petition for rehearing and the petition for rehearing
en banc (Docket No. 50) are therefore DENIED. No further
petitions for panel or en banc rehearing will be entertained in
this case.
 UNITED STATES V . WAHCHUMWAH 5

OPINION

M. SMITH, Circuit Judge:

Defendant-Appellant Ricky Wahchumwah appeals his
jury conviction for offenses relating to the sale of eagle parts.
He contends that his Fourth Amendment rights were violated
when an undercover agent used a concealed audio-video
device to record an illegal transaction Wahchumwah
conducted in his home. We reject this argument because the
Fourth Amendment’s protection does not extend to
information that a person voluntarily exposes to a government
agent, including an undercover agent. See Hoffa v. United
States, 385 U.S. 293, 302 (1966). We also reject
Wahchumwah’s Confrontation Clause challenge, and his
objection to the admission of certain photographs of eagles
and other bird parts at his trial under Federal Rule of
Evidence 403. However, we reverse Wahchumwah’s
conviction on Counts 2 or 3 and Counts 4 or 5 because those
counts are multiplicitous.1

FACTUAL AND PROCEDURAL BACKGROUND

United States Fish and Wildlife Service agents began an
undercover investigation of Wahchumwah based on
anonymous complaints that he was selling eagle parts. As
part of this investigation, Special Agent Robert Romero
began developing a rapport with Wahchumwah in April 2008,
at a powwow in Missoula, Montana. Romero claimed to have
an interest in eagle feathers, and showed Wahchumwah a

1
The claims of Victoria Jim, W ahchumwah’s co-defendant, are
addressed in a memorandum disposition filed contemporaneously with this
opinion.
6 UNITED STATES V . WAHCHUMWAH

Golden Eagle tail he had brought with him. Later that
evening, Romero bought a set of eagle wings from
Wahchumwah for $400.

The following month, Romero sent Wahchumwah a text
message asking if Wahchumwah had any immature Golden
Eagle tail feathers. Wahchumwah responded in the
affirmative, and sent Romero photos depicting three Golden
Eagle tails. The exchange culminated in Romero’s
purchasing a Golden Eagle tail from Wahchumwah.

On October 7, 2008, Romero sent Wahchumwah a text
message stating that he would be visiting family who lived
near Wahchumwah the following week and would like to stop
by Wahchumwah’s home. Wahchumwah, agreed, and a week
later Romero visited Wahchumwah in his residence wearing
a concealed audio-video recording device. During the visit,
Wahchumwah showed Romero a blue spiral notebook
containing a number of eagle plumes. Romero examined the
plumes and purchased a pair for $100. During the visit,
Wahchumwah mentioned to Romero that Wahchumwah had
previously bought eagle tails from a friend.

On March 11, 2009, a team of Fish and Wildlife Service
agents executed a search warrant on Wahchumwah’s home
and its outbuildings. Wahchumwah was arrested.

Count 1 of the Superseding Indictment charged
Wahchumwah with conspiracy in violation of 18 U.S.C.
§ 371. Count 2 charged him with offering to sell Golden
Eagle tails in violation of the Bald and Golden Eagle
Protection Act, 16 U.S.C § 668(a). Count 3 charged
Wahchumwah with the sale of a Golden Eagle tail in
violation of the Lacey Act, 16 U.S.C. §§ 3372(a)(1) and
 UNITED STATES V . WAHCHUMWAH 7

3373(d)(1)(B). Both Counts 4 and 5 charged him with
violating the Bald and Golden Eagle Protection Act,
16 U.S.C. § 668(a)—Count 4 for offering to sell eagle plumes
and Count 5 for the subsequent sale of the plumes.

The jury ultimately convicted Wahchumwah on all
counts, and the district court sentenced him to 30 days in
prison, followed by two years of supervised release.
Wahchumwah timely appealed his conviction. We have
jurisdiction under 28 U.S.C. § 1291.

STANDARDS OF REVIEW

We review de novo the district court’s decision regarding
Wahchumwah’s claim that the audio-video recording violated
his Fourth Amendment rights. United States v. Nerber,
222 F.3d 597, 599 (9th Cir. 2000). We similarly review
Wahchumwah’s claims of multiplicity de novo. United
States v. McKittrick, 142 F.3d 1170, 1176 (9th Cir. 1998).

We review the district court’s denial of Wahchumwah’s
motion in limine regarding the admission at his trial of eagle
photographs and photographs of other migratory birds, for
abuse of discretion. United States v. Merino-Balderrama,
146 F.3d 758, 761 (9th Cir. 1998).

Finally, we review Wahchumwah’s Confrontation Clause
claim de novo, subject to harmless error analysis. United
States v. Bridgeforth, 441 F.3d 864, 868 (9th Cir. 2006).
8 UNITED STATES V . WAHCHUMWAH

DISCUSSION

1. The Fourth Amendment and audio-video recordings

Wahchumwah contends that the warrantless audio-video
recording of an illicit sales transaction inside his home by
Special Agent Romero violated his Fourth Amendment rights.

“Our Fourth Amendment analysis . . . ask[s] whether the
individual . . . has exhibited an actual expectation of privacy
. . . [and] whether the individual’s expectation of privacy is
‘one that society is prepared to recognize as reasonable.’”
Bond v. United States, 529 U.S. 334, 338 (2000) (quoting
Smith v. Maryland, 442 U.S. 735, 740 (1979)). However, that
expectation of privacy does not extend to “[w]hat a person
knowingly exposes to the public, even in his own home or
office.” Katz v. United States, 389 U.S. 347, 351 (1967)
(citations omitted).

The Supreme Court has also determined that a defendant
generally has no privacy interest in that which he voluntarily
reveals to a government agent. Hoffa, 385 U.S. at 300–02.
A government agent may also make an audio recording of a
suspect’s statements, and those audio recordings, made with
the consent of the government agent, do not require a warrant.
United States v. White, 401 U.S. 745, 749–51 (1971)
(plurality opinion); see also 18 U.S.C. § 2511(2)(c)
(expressly authorizing audio recordings with one party’s
consent).

We are not the first circuit to address the Fourth
Amendment implications of an undercover government agent
using an audio-video device to collect evidence in a home. In
United States v. Brathwaite, 458 F.3d 376, 380–81 (5th Cir.
 UNITED STATES V . WAHCHUMWAH 9

2006), the Fifth Circuit held that a confidential informant’s
use of a hidden audio-video device to record meetings at the
defendant’s residence was not a “search” within the meaning
of the Fourth Amendment. See also United States v. Davis,
326 F.3d 361, 366 (2d Cir. 2003) (same); United States v.
Lee, 359 F.3d 194, 199, 203 (3d Cir. 2004) (use of an audio-
video recording device in the defendant’s hotel room did not
violate the Fourth Amendment, while consenting informant,
who had rented the room for the defendant, was present).

We are persuaded that it is not “constitutionally relevant”
whether an informant utilizes an audio-video device, rather
than merely an audio recording device, to record activities
occurring inside a home, into which the informer has been
invited. Brathwaite, 458 F.3d at 380. When Wahchumwah
invited Agent Romero into his home, he forfeited his
expectation of privacy as to those areas that were “knowingly
expose[d] to” Agent Romero. Katz, 389 U.S. at 351; see also
Davis, 326 F.3d at 366. Wahchumwah cannot reasonably
argue that the recording violates his legitimate privacy
interests when it reveals no more than what was already
visible to the agent. “If the conduct and revelations of an
agent operating without electronic equipment do not invade
the defendant’s constitutionally justifiable expectations of
privacy, neither does a simultaneous recording of the same
conversations made by the agent or by others from
transmissions received from the agent to whom the defendant
is talking and whose trustworthiness the defendant
necessarily risks.” White, 401 U.S. at 751.

Wahchumwah relies on United States v. Nerber, 222 F.3d
597 (9th Cir. 2000), where we noted that “we suspect an
informant’s presence and consent is insufficient to justify the
warrantless installation of a hidden video camera in a
10 UNITED STATES V . WAHCHUMWAH

suspect’s home.” 222 F.3d at 604 n.5. Wahchumwah’s
reliance on Nerber is unavailing because the dicta in that case
addressed the warrantless installation of a hidden video
camera, where the hidden camera was attached to the
suspect’s property and could continuously record activities in
the suspect’s home without the presence of an agent to
personally observe what the camera shows. Id. at 599. In
contrast, Agent Romero did not install any video cameras in
Wahchumwah’s home and only wore the audio-video device
on his own clothing during his visit. Wahchumwah also
claims that the buttonhole audio-video device worn by Agent
Romero uses technology not generally available to the public,
and is more intrusive than mere audio surveillance. On this
point, Wahchumwah relies on Kyllo v. United States, in
which the Supreme Court held unconstitutional the
warrantless use of a thermal imaging device to gather
information from a location outside the suspect’s home
regarding the interior of that home. 533 U.S. 27, 29 (2001).
This case is distinguishable from Kyllo because
Wahchumwah invited Romero inside his home, voluntarily
exposing its contents to Romero, whereas the suspect in Kyllo
did not invite the government to survey the interior of his
home and had no reason to suspect that such an inspection
was even possible.

Finally, we reject amicus Electronic Frontier
Foundation’s contention that the audio-video recording here
was similar to the prolonged visual surveillance in United
States v. Jones, 132 S. Ct. 945 (2012). The Jones Court
rested its holding on the government’s physical trespass on
Jones’s property, rather than the government’s prolonged
 UNITED STATES V . WAHCHUMWAH 11

surveillance.2 Id. at 949. Moreover, the GPS device in Jones
enabled constant surveillance of a vehicle over a period of
twenty-eight days, id. at 948, whereas the recording by Agent
Romero lasted for only a few hours and for no longer than
Romero remained an invited guest in Wahchumwah’s home.

We hold that an undercover agent’s warrantless use of a
concealed audio-video device in a home into which he has
been invited by a suspect does not violate the Fourth
Amendment. Accordingly, the district court did not err in
denying Wahchumwah’s motion to suppress the evidence
obtained by use of the concealed audio-video device.

2. Multiplicitous counts

Wahchumwah next asserts that Counts 2 and 3 and
Counts 4 and 5 of his indictment are multiplicitous. An
indictment is multiplicitous if it charges a single offense in
multiple counts. United States v. Rude, 88 F.3d 1538, 1546
(9th Cir. 1996).

In order to assess whether the statutory provisions under
which Wahchumwah was charged are really one offense, we

2
Although amicus Electronic Frontier Foundation argues that
W ahchumwah can show a Fourth Amendment violation under the trespass
theory articulated in Jones, W ahchumwah did not raise this argument in
the briefs he filed with our court. Generally, arguments not raised in a
party’s opening brief are deemed waived, Smith v. Marsh, 194 F.3d 1045,
1052 (9th Cir. 1999), and the court will not consider arguments raised only
in amicus briefs. See Chaker v. Crogan, 428 F.3d 1215, 1220 (9th Cir.
2005). Because W ahchumwah has not argued that a Fourth Amendment
violation under the trespass theory articulated in Jones occurred in this
case, that issue is not properly before us, and we express no opinion
concerning it.
12 UNITED STATES V . WAHCHUMWAH

apply the test articulated in Blockburger v. United States,
284 U.S. 299 (1932). Under that test, “where the same act or
transaction constitutes a violation of two distinct statutory
provisions,” we ask “whether each provision requires proof
of a fact which the other does not.” United States v. Overton,
573 F.3d 679, 691 (9th Cir. 2009) (quoting Blockburger,
284 U.S. at 304) (internal quotation marks omitted). “If two
different criminal statutory provisions . . . punish the same
offense or one is a lesser included offense of the other, then
conviction under both is presumed to violate congressional
intent.” United States v. Davenport, 519 F.3d 940, 943 (9th
Cir. 2008) (citation omitted). “[T]he Court’s application of
the test focuses on the statutory elements of the offense. If
each requires proof of a fact that the other does not, the
Blockburger test is satisfied, notwithstanding a substantial
overlap in the proof offered to establish the crimes.”
Albernaz v. United States, 450 U.S. 333, 338 (1981) (quoting
Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975)).

A. Counts 2 and 3

We begin by comparing the text of each statutory
provision under which Wahchumwah was charged in Counts
2 and 3. Davenport, 519 F.3d at 944. Count 2 charged
Wahchumwah with offering to sell Golden Eagle tails in
violation of the Bald and Golden Eagle Protection Act, which
provides that an individual shall not knowingly sell or offer
to sell any Golden Eagle. 16 U.S.C. § 668(a). Under Count
2, the government must prove that Wahchumwah: (1)
knowingly; (2) sold or offered to sell; (3) Golden Eagle tails;
(4) without legal permission to do so.

Count 3 of Wahchumwah’s indictment charged him with
the subsequent sale of a Golden Eagle tail in violation of the
 UNITED STATES V . WAHCHUMWAH 13

Lacey Act, which provides that “[i]t is unlawful for any
person to . . . sell . . . any fish or wildlife or plant taken . . . in
violation of any law . . . of the United States.” 16 U.S.C.
§ 3372(a)(1). Section 3373(d)(1)(B) of the Lacey Act
additionally provides that any person who:

violates any provision of this chapter . . . by
knowingly engaging in conduct that involves
the sale or purchase of, the offer of sale or
purchase of, or the intent to sell or purchase,
fish or wildlife or plants with a market value
in excess of $350, knowing that the fish or
wildlife or plants were taken, possessed,
transported, or sold in violation of, or in a
manner unlawful under, any underlying law,
treaty or regulation, shall be fined not more
than $20,000, or imprisoned for not more than
five years, or both. Each violation shall be a
separate offense . . . [.]

16 U.S.C. § 3373(d)(1)(B). Accordingly, under Count 3, the
government must prove that Wahchumwah: (1) knowingly;
(2) engaged in conduct that involved the sale or the offer to
sell; (3) wildlife; (4) with a market value in excess of $350;
(5) knowing that the wildlife was taken in an unlawful
manner.

Counts 2 and 3 prohibit the same offense. Both statutes
require the knowing sale of a protected species. The Bald and
Golden Eagle Protection Act’s requirement that an eagle be
sold is subsumed under the Lacey Act’s requirement that fish,
wildlife, or plants be sold.
14 UNITED STATES V . WAHCHUMWAH

It is true that Count 3 (the Lacey Act) requires proof of
additional facts that Count 2 (the Bald and Golden Eagle
Protection Act) does not. For example, the Lacey Act
requires that the wildlife have a market value in excess of
$350. See 16 U.S.C. § 3373(d)(1)(B). Blockburger demands,
however, that Count 2 also require proof of at least one
additional fact that Count 3 does not. See Blockburger,
284 U.S. at 304. Here, Count 2 requires proof of the same
facts as Count 3, and no additional facts. Wahchumwah’s
conviction for the sale under Count 3 necessarily includes
proof of the elements required for conviction of the offer to
sell under Count 2. Thus, the offer to sell is a lesser included
offense, and the counts are multiplicitous.

Having concluded that Counts 2 and 3 fail the
Blockburger test, we next consider whether “congressional
intent nonetheless mandates that we uphold the multiplicitous
conviction.” Davenport, 519 F.3d at 946. There is no
indication within the text of either statute that Congress
intended to authorize multiple punishments for a single sale.
The Lacey Act merely provides that “[e]ach violation shall be
a separate offense,” 16 U.S.C. § 3373(d)(2), meaning that
distinct violations may be charged separately. Accordingly,
the district court erred when it denied Wahchumwah’s motion
to dismiss or merge Counts 2 and 3. One of Wahchumwah’s
convictions on Counts 2 and 3 must be vacated. We leave the
determination of which count should be vacated to the district
court.

B. Counts 4 and 5

Wahchumwah additionally challenges Counts 4 and 5 of
the indictment as multiplicitous. Count 4 charged
Wahchumwah with offering to sell a pair of eagle plumes
 UNITED STATES V . WAHCHUMWAH 15

from a collection of plumes, and Count 5 charged him with
the subsequent sale of a pair of plumes. Both counts were
premised on a violation of the Bald and Golden Eagle
Protection Act, 16 U.S.C. § 668(a).

The Bald and Golden Eagle Protection Act provides that
one may not knowingly “take, possess, sell, purchase, barter,
offer to sell, purchase or barter, transport, export or import”
a Bald or Golden Eagle. 16 U.S.C. § 668(a). Under Count 4,
the government had to prove that Wahchumwah: (1)
knowingly; (2) offered to sell; (3) a Bald or Golden Eagle; (4)
without legal permission to do so. Count 5 differed only in
that the government had to prove that Wahchumwah sold a
Bald or Golden Eagle.

Here, Wahchumwah offered to sell a pair of plumes,
charged under Count 4, which led to the sale that serves as
the basis for Count 5. Generally speaking, a “sale” is nothing
more than an offer followed by an acceptance. Because the
elements of the statutory provision are the same for Counts 4
and 5, and the offer to sell requires no separate proof of fact
that the actual sale does not, the offer to sell is a lesser
included offense of the completed sale. There is no evidence
that Congress intended a single completed sale to serve as the
basis for multiple charges under the Bald and Golden Eagle
Protection Act. Thus, Wahchumwah cannot be convicted for
both the sale and the offer to sell.

The government asserts that the counts are not
multiplicitous since Count 4 is premised on the offer of a pair
of eagle plumes from a notebook containing about fifteen
pairs of plumes, while Count 5 is premised on the sale of only
one of those pairs of plumes. This argument fails to show
how the counts are not multiplicitous, since the plumes
16 UNITED STATES V . WAHCHUMWAH

offered for sale differ from the actual plumes sold only in that
it was unclear prior to the “closing” which pair or pairs of
plumes Agent Romero was going to buy. Additionally, “[t]he
Blockburger test focuses on the statutory elements of each
offense, not on the actual evidence presented at trial.” United
States v. Kimbrew, 406 F.3d 1149, 1151–52 (9th Cir. 2005)
(citing Illinois v. Vitale, 447 U.S. 410, 416 (1980)).

Accordingly, one of Wahchumwah’s convictions on
Counts 4 and 5 must be vacated. We leave the determination
of which count to vacate to the district court.

3. Admission of photographs

Wahchumwah contends that the district court erred in
admitting into evidence redundant photographs of eagle
feathers, as well as photos of feathers of birds other than
eagles that Wahchumwah was legally allowed to possess.
“The decision to admit potentially prejudicial evidence under
Rule 403 is ‘committed to the sound discretion of the trial
court.’” Boyd v. City & Cnty. of S.F., 576 F.3d 938, 948 (9th
Cir. 2009) (quoting United States v. Blitz, 151 F.3d 1002,
1008 (9th Cir. 1998)). Federal Rule of Evidence 403 was
properly applied “‘[a]s long as it appears from the record as
a whole that the trial judge adequately weighed the probative
value and prejudicial effect of proffered evidence before its
admission.’” United States v. Verduzco, 373 F.3d 1022, 1029
n.2 (9th Cir. 2004) (quoting United States v. Sangrey,
586 F.2d 1312, 1315 (9th Cir. 1978)).

The record reflects that the district court carefully
considered the photographs at issue, and balanced their
probative value against the likelihood of unfair prejudice.
The transcript of the pretrial hearing reveals that the district
 UNITED STATES V . WAHCHUMWAH 17

court scrutinized each photograph, finding some needlessly
redundant, and others not so. Additionally, the district court
instructed the jury on the very limited purpose for which they
could consider the “non-eagle migratory bird evidence,” and
the jury was told which photos depicted an alternate view of
the same bird. In light of these facts, we conclude that the
district court did not abuse its discretion by admitting the
photos.

4. Confrontation Clause

The district court permitted two law enforcement officers
to testify at trial to receiving complaints from unnamed tribal
members that Wahchumwah was selling eagle parts. The
government also referenced the complaints in its closing
statement. Wahchumwah claims his Sixth Amendment rights
were violated because he was not given an opportunity to
cross-examine the unidentified tribal members who made the
complaints. He relies on Crawford v. Washington, which
permits the admission of “[t]estimonial statements of
witnesses absent from trial . . . only where the declarant is
unavailable, and only where the defendant has had a prior
opportunity to cross-examine.” 541 U.S. 36, 59 (2004).

Wahchumwah’s reliance is misplaced. Crawford applies
only to testimonial hearsay, and “does not bar the use of
testimonial statements for purposes other than establishing
the truth of the matter asserted.” Id. at 59 n.9. The
anonymous complaints were not offered to prove that
Wahchumwah was selling eagle parts, but merely to explain
why the federal agents began investigating him. See United
States v. Whitman, 771 F.2d 1348, 1352 (9th Cir. 1985).
18 UNITED STATES V . WAHCHUMWAH

Additionally, the district court properly instructed the jury
on two separate occasions that the statements were being
considered “not for the[ir] truth. . . but only to establish why
this witness did what he did.” Accordingly, the district court
did not err in admitting the testimony.

CONCLUSION

For the foregoing reasons, Wahchumwah’s conviction as
to Count 1 is affirmed. With respect to the remaining counts,
we remand with instructions that the district court vacate
Wahchumwah’s conviction under either Count 2 or Count 3,
and either Count 4 or Count 5.

AFFIRMED in part and REVERSED AND
REMANDED in part.