United States v. Charles

United States Court of Appeals
For the First Circuit
____________________

No. 98-2046

UNITED STATES,

Appellee,

v.

JOSEPH A. CHARLES, a/k/a SHIZ,

Defendant, Appellant.

____________________

No. 98-2180

UNITED STATES,

Appellee,

v.

ELIZABETH AHART,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

____________________

Before

Torruella, Chief Judge,

Cyr, Senior Circuit Judge,
and Stahl, Circuit Judge.

_____________________

-2-
 Kevin Reddington for appellant Joseph A. Charles and Frances L.
Robinson, by appointment of the Court, for appellant Elizabeth Ahart,
were on consolidated brief.
Thomas C. Frongillo, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, Dickens Mathieu, Assistant
United States Attorney, and Geline W. Williams, Special Assistant
United States Attorney, Plymouth County District Attorney's Office,
were on brief, for appellee.

____________________

May 24, 2000
____________________

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 TORRUELLA, Chief Judge. On April 24, 1997, a federal grand

jury returned a three-count indictment charging Joseph A. Charles,

Elizabeth Ahart, and Reynard Mason with violations of various federal

narcotics and firearms laws. After unsuccessfully litigating a motion

to suppress all evidence arising out of a wiretap authorized by a

Massachusetts court, see United States v. Charles, No. 97-10107-PBS,

1998 WL 204696 (D. Mass. Jan. 13, 1998), Ahart and Charles entered

conditional pleas of guilty. On July 17, 1998, after holding an

evidentiary hearing to determine the nature of the narcotics, the

district court sentenced Ahart and Charles to 168 months of

imprisonment. This appeal followed.1

For the reasons stated below, we affirm.

BACKGROUND

The district court aptly summarized the facts in this case.

See id. at 1-5. We see no need to duplicate that effort. Accordingly,

we reiterate the district court's findings of fact largely verbatim.

I. State Criminal Investigation and Proceedings

A. An Overview

From 1992 through 1995, the Massachusetts State Police

conducted an investigation of individuals based in the City of Brockton

who were suspected of engaging in the distribution of large quantities

of crack cocaine. On July 24, 1995, the police initiated a state-

1 Reynard Mason is not a party to this appeal.

-4-
court-authorized wiretap on the telephone located at 21 Field Street,

a single family home in Brockton where defendants Charles and Mason

were residing. A week-long wiretap investigation yielded over 800

interceptions, the majority of which pertained to the purchase and

distribution of crack cocaine. As a result of information gleaned from

the wiretap, state police executed consecutive search warrants at 21

Field Street and 26 Allen Street, the Brockton apartment of defendant

Ahart. From the latter search, the police seized approximately 221

grams of cocaine base, drug paraphernalia, an Uzi rifle, ammunition,

and $1,576 in U.S. currency. In August of 1995, a state grand jury

indicted Charles, Ahart, and Mason on various state drug and firearm

offenses.

B. Wiretap Warrant and Order

On July 18, 1995, the Plymouth County District Attorney's

Office secured authorization from an associate justice of the Superior

Court (Cowin, J.) to intercept communications into and out of 21 Field

Street. The application for the wiretap warrant was submitted with a

fifty-page affidavit of State Trooper Anthony Thomas, which formed the

basis of the court's probable cause determination that narcotics

transactions were being conducted by way of the telephone line into the

home.

In addition to the named targets of the investigation, the

application sought permission to intercept the calls of defendant

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Charles's attorney, John W. Kelley, though nothing in the accompanying

affidavit suggested that Kelley was suspected of criminal activity.

According to Trooper Thomas, he told Judge Cowin that the application

was unusual in that it sought to intercept phone calls between Charles

and Kelley in order to determine whether the conversations were

privileged.

The July 18 court order as initially drafted contained a

Minimization Notice which prohibited the interception of "privileged

communications." In accordance with the wiretap application, however,

it also provided that if any conversations with John W. Kelley of

Brockton were intercepted, the police could listen for 30 seconds to

determine whether the contents were privileged; if the wiretap monitor

on duty determined that the communications were not privileged, the

interception would be allowed to continue "an additional 30 seconds,

unless and until the conversations become privileged," at which time

the monitoring would cease.

On July 21, three days after issuing the order, the state

judge sua sponte amended her order. The "Amended Minimization Notice"

eliminated the 30-second window that allowed the police lead time to

determine whether the content of a phone call was privileged and

specifically prohibited the interception of communications with

Attorney Kelley. The order read as follows:

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 The officers executing this warrant shall not
intercept any conversations between persons at
the target telephone and incoming callers whom
the officers know, or have reason to believe,
have an attorney-client relationship with the
person to whom they are speaking. This order
shall include any telephone conversations between
Attorney John W. Kelley of Brockton and Joseph A.
Charles, if the intercepting officers know or
have reason to believe the speaker is the said
Attorney Kelley. There shall be no interception
of outgoing telephone calls to . . . the office
number of Attorney John W. Kelley . . . .

The amended order contained no information regarding Kelley's

residential telephone.

C. Intercepted Phone Calls

The wiretap ran from July 24, 1995 to July 30, 1995. At

issue in this appeal are the events of July 29. Trooper Paul Petrino

was the sole officer on monitoring duty in the State Police Middleboro

barracks from midnight on Friday, July 29 until 8 A.M. the following

morning. Petrino had experience in monitoring wiretaps and in

narcotics investigations generally, but had not played any part in the

Charles investigation prior to July 28, 1995.2 Instead, he had been

assigned to a highly publicized and intense investigation involving the

murder of a state trooper.

2 There is some confusion in the record regarding whether Petrino
served as a monitor on July 28 as well as July 29. The government's
trial brief stated he was a monitor only once, on July 29; however,
both the duty log and testimony before the district court indicated
that Petrino served on July 28 as well.

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 As required of all monitoring officers, Petrino signed the

minimization order on July 25, 1995, when he was first assigned

monitoring duties in this case. He did not, however, re-sign or review

the order prior to July 28 or July 29, when he actually began working

on this case. Prior to his monitoring assignment, Petrino had never

discussed the particulars of the Charles investigation with Trooper

Thomas, the officer in charge of the wiretap; nor did he have any

knowledge of any role Attorney Kelley played in the investigation,

including any suspicions harbored by Thomas of Kelley's involvement.

Specifically, Petrino had no knowledge that Kelley had been included in

the original minimization order and was later removed by amendment; and

he had no recollection of ever having met or spoken with Kelley.3

At the evidentiary hearing, Trooper Petrino explained the

process of how calls were monitored from the Middleboro listening post

in some detail. For each call made to and from the 21 Field Street

telephone line, the monitoring equipment would display the number that

was dialed and begin recording. Upon a determination that a call was

non-privileged, monitors would enter information into a computer

identifying the parties, nature, and substance of each call in order to

create a log of all interceptions. Upon a determination that a call

3 Kelley testified at the state suppression hearing that he had "met"
Petrino prior to the date of the hearing. When pressed on
cross-examination, however, Kelley admitted to having no specific
memory of ever being introduced to Petrino or ever having directly
spoken to Petrino in any capacity.

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was a privileged communication, monitors were instructed to minimize

the call by turning the tape off, signified in the log by the notation

"TTO" (Turn Tape Off). In the event that a series of calls were made

in rapid succession, or when the noise of the pen register made it

difficult to hear the conversations, monitors were instructed to jot

down the gist of each of the calls in handwritten notes and later play

back the tapes to make complete entries into the log. Monitors were

also instructed to contact Trooper Thomas directly upon intercepting

any incriminating phone calls.4 While two monitors were ordinarily

assigned to the listening post on any given shift throughout the course

of the wiretap, Petrino served as the lone monitor during his

eight-hour shift on July 29 because all other law enforcement personnel

were needed to execute the search warrant that was anticipated for that

night.

Within the first two hours of his shift, between 1:20 and

1:55 A.M., Petrino intercepted seven calls in quick succession; these

calls mainly involved Mason reassuring callers that Charles would soon

be returning home from a short trip to New York City. This period was

followed by a fifty minute break without any incoming or outgoing

calls. From approximately 2:46 A.M., upon returning home from his

4 That a call was designated incriminating versus nonincriminating
would be reflected in the log by the notations "I" or "N." Other
columns within the log reflect the time the call was dialed, the number
dialed, and whether the call was incoming or outgoing, signified by the
notations "I" or "O."

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trip, Charles made a series of six calls within eight minutes. During

the first of this series, Petrino's entries in the log reflect Charles

reporting to an unidentified male, "it was a good night got 6 keys,"

inquiring "how much to bring," and instructing him to call his "boy"

and have him bring "12 g's." This series of calls and the previous

series had been in such rapid succession that Petrino had to play back

the tapes to make his log entries. Petrino immediately paged Thomas

and informed him of the incriminating interception.

At approximately 3:12 A.M., the police entry team executed

a search warrant at 21 Field Street. Expecting to find the cocaine

referred to in the intercepted calls, the police found no drugs at all,

recovering only a handgun and $4,500 in cash from a car registered to

defendant Ahart. Charles was not arrested and the police left the

premises just before 5:00 A.M. Because it was a dry run, Thomas told

Petrino that the phones were likely to be active. The primary

objective was to identify the location of the narcotics.

Immediately following the search, from 4:59 to 5:05 A.M.,

Charles made a series of five phone calls relating the events that had

just taken place. Petrino described this six minute monitoring period

as "extremely busy." At 5:05 A.M., Charles dialed a number that was

neither listed in the amended minimization notice nor known to Trooper

Petrino. When a man answered, Charles said, "Hello, Mr. Kelley, I'm

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sorry for calling the house so late. This is Joseph. Yo, I got some

problems, man." Describing the police search, he continued:

Mr. Tony Thomas and them just ran up in my
fucking house . . . [t]hey ain't found nothing,
though. The only thing they found was a firearm,
but he didn't charge me with that. But he took
my money out of the trunk of my car.

The conversation lasted approximately four minutes. Charles

and Kelley discussed the possibility of recovering the seized money in

court on Monday and suing the police, and the two agreed to speak again

after the weekend. As the call was being recorded, Petrino did not

hear the words "Mr. Kelley" and did not minimize the conversation.

Following standard procedure for the interception of nonprivileged

calls, Petrino initially jotted down notes and later played back the

tape several times to enter into the computer the substance of the

conversation and other pertinent information. "Mr. Kelley" was

Charles' attorney, John W. Kelley, so named in the minimization order.

The call was to Kelley's home in Easton rather than his office in

Brockton.

Upon completion of his shift at 8:00 A.M., Petrino went home

and went to bed. According to his testimony before the district court,

he was oblivious to the fact that he had failed to comply with the

wiretap order. Later that morning, Thomas returned to the Middleboro

barracks to check the log from Petrino's shift. Thomas testified that

in reviewing Petrino's entries, he noticed the 5:05 interception, and

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that Charles had spoken with "a male named Kelley." Thomas recognized

that the number dialed was an Easton number and knew that Attorney

Kelley resided in Easton. Upon tracing the number and verifying that

it was indeed the home telephone line of Attorney Kelley, Thomas called

Petrino at home to inquire about the intercepted phone call. While

Petrino recalled the interception, Petrino told Thomas he did not know

that the person he identified in his log as "a male named Kelley" was,

in fact, Charles' attorney, John Kelley. Thomas believed it was a good

faith mistake.

Thomas immediately informed his supervisor, Sergeant Nagle,

of the interception. Nagle was located at the listening post at the

time he received the call from Thomas, and responded to the news by

writing in large script across the chalkboard in the monitoring room,

"No Attorney Calls." Thomas also notified his commander, Lt. Bruce

Gordon, who in turn notified the case prosecutor on Sunday, July 30,

after the wiretap and investigation had been terminated. Thomas's

actions conformed with the Amended Minimization Notice, which required

that "[a]ny inadvertent interception of a privileged communication must

be reported forthwith to the officer in charge, Trooper Anthony E.

Thomas, Jr., and the supervising Assistant District Attorney, Geline W.

Williams." The police did not inform the Superior Court of the

violation of the minimization order because they believed they were not

required to do so once the wiretap terminated.

-12-
 That same day, subsequent to the interception of the

conversation between Charles and Kelley, the police intercepted two

incriminating conversations between Charles and Ahart at approximately

9:24 A.M. and 9:55 A.M., which resulted in the execution of the Allen

Street search warrant and the subsequent arrests of defendants Charles,

Ahart, and Mason. All subsequent, post-arrest calls to Kelley and

other counsel were properly minimized.

II. Federal Criminal Proceedings

A. Dismissal of the State Court Indictment & Initiation of
Federal Proceedings

The defendants were initially indicted by a Plymouth County

Grand Jury in August 1995 for narcotics-related offenses. On March 18,

1997, after a hearing,5 an associate justice of the Superior Court

(DelVecchio, J.) issued a memorandum and order suppressing the entire

wiretap and all physical evidence derived therefrom based on Trooper

Petrino's interception of the July 29, 1995 privileged Charles/Kelley

phone call. See Commonwealth v. Charles, Nos. 96995-96997,

96998-97000, slip op. at 13-14 (Plymouth Super. Ct., Mar. 18, 1997).

The state court found that "the government deliberately attempted to

intercept a private communication between Kelley and Charles in direct

contravention of the attorney-client privilege" and that "in light of

this finding, an across-the-board suppression of all evidence derived

5 The transcript of that hearing was submitted to the district court
and is part of the record in this case.

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from the wiretap is appropriate." Id. at 13. On March 19, 1997, the

Commonwealth filed a notice of appeal.

That same day, the Plymouth County District Attorney's Office

contacted the United States Attorney's Office to review the case with

the Federal Bureau of Investigation (FBI) for possible federal

prosecution. The United States Attorney's Office decided to file

federal charges based upon the FBI's recommendation and the following

factors: (1) the large quantity of drugs allegedly involved; (2) the

dangerous nature of crack cocaine; (3) the large number of unindicted

members of the suspected drug organization, as indicated by intercepted

phone conversations; (4) the defendants' alleged use of firearms,

including an Uzi semi-automatic firearm with an obliterated serial

number; (5) the criminal records of defendants Ahart and Mason; (6)

defendant Mason's apparent propensity for violence; (7) evidence that

the drug conspiracy dated back to at least 1992; (8) the broad scope of

the enterprise, including evidence of a drug supplier in New York City

and confederates in Boston and Brockton; (9) the likelihood that

defendants would continue to engage in drug trafficking if acquitted on

state charges; and (10) the significant problems that Brockton had

suffered in recent years due to narcotics trafficking and related

violence. John Woudenberg, a Special Agent with the FBI, said that the

possibility of a New York supply connection for the crack was

particularly significant.

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 On March 21, 1997, a federal magistrate issued complaints

charging defendants Charles, Mason, and Ahart with conspiracy to

distribute cocaine base in violation of 21 U.S.C. § 846 (Count 1);

charging Charles and Ahart with possession of cocaine base with intent

to distribute in violation of 21 U.S.C. § 841(a)(1) (Count 2); and

charging Ahart with being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1) (Count 3). A grand jury indictment

followed on April 24, 1997. The Commonwealth terminated its

prosecution by filing a Notice of Nolle Prosequi.

B. Appellants' Motions for Suppression of the Evidence and
Dismissal of the Indictment

Proceeding before the federal district court, Charles and

Ahart filed motions to dismiss the indictment based on the doctrines of

abstention, collateral estoppel, and prosecutorial vindictiveness; to

suppress the wiretapped conversations and all evidence derived

therefrom, pursuant to federal and state wiretap law and the Fourth

Amendment to the United States Constitution; and to suppress all

physical evidence, on the ground that the relevant search warrants were

invalid. After a three-day evidentiary hearing held on September 2, 4,

and 8, 1997, the district court granted defendants' motion to suppress

the Charles-Kelley phone conversation on grounds that it was protected

by the attorney-client privilege and subject to a minimization order,

but denied the motion to suppress with respect to all other evidence

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derived from the wiretapped conversations. See Charles, 1998 WL

204696, at *22. As a corollary to this ruling, the court denied the

motion to dismiss. See id.

In reaching this determination, the district court

specifically found that Petrino's interception of the Charles-Kelley

phone call was inadvertent and unintentional, albeit negligent. See

id. at 4. The court also found that overall the state law enforcement

officials managed the implementation of the minimization order in good

faith and in an objectively reasonable manner. See id.

DISCUSSION

I. Standard of Review

In this Circuit, appellate review of a suppression motion is

bifurcated. "In reviewing a denial of a suppression motion, the

district court's ultimate legal conclusion, including the determination

that a given set of facts constituted probable cause, is a question of

law subject to de novo review." E.g., United States v. Khounsavanh,

113 F.3d 279, 282 (1st Cir. 1997). The trial court's findings of

facts, in contrast, must be upheld unless they are clearly erroneous.

See, e.g., id.; United States v. Young, 105 F.3d 1, 5 (1st Cir. 1997).

"A clear error exists only if, after considering all of the evidence,

we are left with a definite and firm conviction that a mistake has been

made." United States v. McCarthy, 77 F.3d 522, 529 (1st Cir. 1996).

This deference to the district court's findings of facts "reflects our

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awareness that the trial judge, who hears the testimony, observes the

witnesses' demeanor and evaluates the facts first hand, sits in the

best position to determine what actually happened." Young, 105 F.3d at

5. As a corollary, "we will uphold a district court's decision to deny

a suppression motion provided that any reasonable view of the evidence

supports the decision." McCarthy, 77 F.3d at 529.

II. Motion to Suppress the Wiretap Evidence

Appellants raise two arguments in support of their motion to

suppress the wiretapped conversations and the evidence arising

therefrom: (1) the evidence gleaned from the wiretap of the 21 Field

Street phone line is not admissible pursuant to the Federal Wiretap

Statute, 18 U.S.C. §§ 2510 et seq., and (2) the state court's

suppression ruling collaterally estops the government from using the

wiretap evidence. Neither argument prevails. Instead, we hold that

the district court's limited suppression of the Charles/Kelley phone

call was an appropriate remedy for the state police's violation of the

amended minimization order.

A. 18 U.S.C. § 2516(2)

In support of their argument for suppression appellants cite

18 U.S.C. § 2516(2), which provides authority for receipt in federal

court of state authorized wiretaps. The statute provides, in relevant

part:

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 The principal prosecuting attorney of any State,
or the principal prosecuting attorney of any
political subdivision thereof, if such attorney
is authorized by a statute of that State to make
application to a State court judge of competent
jurisdiction for an order authorizing or
approving the interception of wire, oral, or
electronic communications, may apply to such
judge for, and such judge may grant in conformity
with section 2518 of this chapter and with the
applicable State statute an order authorizing, or
approving the interception of wire, oral, or
electronic communications by investigative or law
enforcement officers having responsibility for
the investigation of the offense as to which the
application is made . . . .

18 U.S.C. § 2516(2). According to appellants, § 2516(2) requires

federal courts to defer to state law in circumstances where, as here,

the federal prosecution attempts to make use of wiretap evidence

obtained through use of a state court warrant. If state law applies,

appellants reason, the district court was required to suppress the

evidence arising out of the 21 Field Street wiretap because the state

court had done so in the prior state proceeding. Appellants

misconstrue the statute.

The district court correctly ruled that federal law governs

the admissibility of evidence in federal prosecutions. See, e.g.,

United States v. Wilson, 36 F.3d 205, 208 (1st Cir. 1994); United

States v. Mitro, 880 F.2d 1480, 1485 n.7 (1st Cir. 1989). As a result,

"[e]vidence obtained in violation of neither the Constitution nor

federal law is admissible in federal court proceedings without regard

-18-
to state law." United States v. Sutherland, 929 F.2d 765, 769 (1st

Cir. 1991) (quoting United States v. Little, 753 F.2d 1420, 1434 (9th

Cir. 1984)). This is true even when the evidence "is obtained pursuant

to a state search warrant or in the course of a state investigation."

Mitro, 880 F.2d at 1485 n.7. Considering a question closely related to

the one we face today, the Supreme Court has squarely affirmed this

principle:

In determining whether there has been an
unreasonable search and seizure by state
officers, a federal court must make an
independent inquiry, whether or not there has
been such an inquiry by a state court, and
irrespective of how any such inquiry may have
turned out. The test is one of federal law,
neither enlarged by what one state court may have
countenanced, nor diminished by what another may
have colorably suppressed.

Elkins v. United States, 364 U.S. 206, 223-24 (1960).

Against this background, we turn to three decisions that are

directly on point and foreclose appellants' argument. In United States

v. Miller, 116 F.3d 641, 662-64 (2d Cir. 1997), the defendants relied

on a prior state court suppression order to argue that the district

court improperly denied their motion to suppress all evidence gleaned

from a state-court-authorized wiretap. The Second Circuit rejected the

argument, stating:

[T]he state court's suppression order did not
foreclose consideration of the wiretap evidence
by the grand jury, and it was not binding on the
district court. The latter court properly held

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 an evidentiary hearing on defendants' suppression
motion and considered the motion on its merits.

Id. at 663. The Miller Court reasoned that "'state court rulings in a

criminal trial are not binding on a federal court'" because "'state and

national sovereignty are separate and distinct from one another.'" Id.

(quoting United States v. Miller, 14 F.3d 761, 763 (2d Cir. 1994)).

An identical result was reached in United States v. Williams,

124 F.3d 411, 426-28 (3d Cir. 1997). In Williams, the Third Circuit

rejected the argument that § 2516(2) required the district court to

suppress state wiretap evidence where communications intercepted

pursuant to a state statute were subsequently disclosed to federal

authorities in violation of state law. See id. at 426. Instead, the

court applied federal law and held that it did not require suppression.

See id. at 427-28.

Finally, in United States v. Padilla-Peña, 129 F.3d 457, 464

(8th Cir. 1997), the defendants unsuccessfully argued that state

wiretap evidence was inadmissible in a federal trial because the

wiretap minimization procedures applied by the local police violated

state law. The court concluded that the state officers had complied

with 18 U.S.C. § 2518(5) and emphasized that "evidence obtained in

violation of a state law is admissible in a federal criminal trial if

the evidence was obtained without violating the Constitution or federal

law." Id.

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 Miller, Williams, and Padilla-Peña foreclose appellants'

argument that § 2516(2) requires a federal court to apply state law in

determining the admissibility of state wiretap evidence. While we need

look no further, we find additional support for our conclusion in

United States v. Sutherland, 929 F.2d 765 (1st Cir. 1991), a decision

that does not directly address the reach of § 2516(2).

In Sutherland, state law enforcement personnel utilized an

informant to procure incriminating tape recordings without a warrant.

See id. at 769. Under Massachusetts law, warrantless interception of

oral and wire communications is prohibited absent consent of all the

parties, except in two circumstances which did not apply to the case.

See Mass. Gen. Laws ch. 272, § 99. The Commonwealth conceded that the

tape recordings had been obtained in violation of state law and

consequently that testimony derived therefrom could not be used as

substantive evidence in a Massachusetts prosecution. The Commonwealth,

however, moved in limine for a determination that it would be allowed

to use the tapes as impeachment evidence. The question was presented

to the Supreme Judicial Court, which held that the recorded

conversations were not admissible for any purpose. See Sutherland, 929

F.2d at 769 (citing Commonwealth v. Fini, 531 N.E.2d 570, 574 (Mass.

1988)). As a result of this ruling, the Commonwealth dismissed the

case.

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 A federal indictment followed. Prior to trial, the

defendants moved to suppress on the ground that the tape recordings

were obtained by state law enforcement personnel in violation of the

Massachusetts wiretap law. The district court denied the motion and

this Court affirmed, stating "we hold that in federal criminal

prosecutions, the admissibility of wiretap evidence is a question of

federal law." Id. at 771. Today, we reaffirm the holding of

Sutherland and apply it with equal force to this case.

In so doing, we once again leave open the possibility that

"in an extreme case of flagrant abuse of the law by state officials,

where federal officials seek to capitalize on that abuse, this court

might choose to exercise its supervisory powers by excluding ill-gotten

evidence." Id. at 770. Here, however, the district court found that

"overall, the state law enforcement officials managed the

implementation of the minimization order in good faith and in an

objectively reasonable manner." Charles, 1998 WL 204696, at *4. This

determination is not clearly erroneous; to the contrary, it is amply

supported by the record and therefore we decline to overturn it. See

Khounsavanh, 113 F.3d at 282.

Finally, in rejecting appellants' § 2516(2) argument, we

recognize that several courts have concluded that § 2516(2) may require

the application of state law where the state wiretap statute contains

standards that are more protective of privacy than the corresponding

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provisions of the Federal Wiretap Statute. See, e.g., United States v.

McNulty, 729 F.2d 1243, 1264 (10th Cir. 1983) (en banc); Unites States

v. Marion, 535 F.2d 697, 702 (2d Cir. 1976). In Marion, for example,

the court stated:

[W]hether the proceedings be federal or state,
interpretation of a state wiretap statute can
never be controlling where it might impose
requirements less stringent than the controlling
standard of Title III. If a state should set
forth procedures more exacting than those of the
federal statute, however, the validity of the
interceptions and the orders of authorization by
which they were made would have to comply with
that test as well.

Marion, 535 F.2d at 702 (footnote omitted). This rule of law, however,

is not applicable to this case. As the district court stated,

"[b]ecause the state court's suppression order in this case was not

based upon the application of more stringent standards governing

authorization procedures for wiretap orders under Massachusetts law,

this line of cases is inapposite to defendants' claim, which hinges on

the appropriate remedy for violation of a minimization order."

Charles, 1998 WL 204696, at *10 (footnote omitted).

In other words, appellants' reliance on the Marion line of

cases is misplaced. The Massachusetts wiretap statute does not contain

a higher standard for assessing minimization violations. To the

contrary, the state statute does not contain any express minimization

provisions. Instead, Massachusetts courts consult federal law in

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ruling on violations of minimization orders. See, e.g., Commonwealth

v. Vitello, 327 N.E.2d 819, 842 n.22 (Mass. 1975); Commonwealth v.

Wallace, 493 N.E.2d 216, 221 n.10 (Mass. App. Ct. 1986). This case is

no exception: the state court expressly relied on federal case law in

determining the appropriate remedy for the violation of the

minimization order. See Commonwealth v. Charles, slip op. at 7 ("Since

there appears to be no Massachusetts case directly on point, this court

must be guided by federal law.").

As indicated, "in federal criminal prosecutions, the

admissibility of wiretap evidence is a question of federal law."

Sutherland, 929 F.2d at 771. It follows that § 2516(2) does not

require a federal court to defer to a state court's application of

federal standards for a violation of a minimization order.

B. Collateral Estoppel

Appellants next allege that the state court suppression

ruling should collaterally estop the federal government from using the

wiretap evidence. This argument was not presented to the district

court. Instead, appellants took the position before the lower court

that collateral estoppel should bar the entire prosecution. Appellants

apparently now recognize, as the district correctly observed in its

astute opinion, that even if collateral estoppel applied, it

nevertheless would not operate to require dismissal of the indictment.

See Charles, 1998 WL 204696, at *6. Because appellants failed to

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present this argument to the district court, it is waived. See, e.g.,

United States v. Slade, 980 F.2d 27, 31 (1st Cir. 1992) ("[A] party is

not at liberty to articulate specific arguments for the first time on

appeal simply because the general issue was before the district

court.").

Moreover, even if appellants' collateral estoppel argument

were properly before this Court, we see no merit in it. "In this

circuit it is well established that a ruling in a state prosecution

will collaterally estop the federal government only if federal

authorities substantially controlled the state action or were virtually

represented by the state court prosecutor." Sutherland, 929 F.2d at

771; see also United States v. Land at 5 Bell Rock Road, Freetown,

Mass., 896 F.2d 605, 610 (1st Cir. 1990); United States v. Bonilla

Romero, 836 F.2d 39, 43 (1st Cir. 1987). The record in this case

conclusively shows that the federal government was not a party to any

aspect of the state investigation or the state court proceedings.

Appellants concede as much, but point out that the state prosecutor,

Assistant District Attorney Geline W. Williams, was appointed Special

Assistant United States Attorney in order to assist in the subsequent

federal prosecution. This argument has been considered and rejected by

at least two other circuits. See United States v. Perchitti, 955 F.2d

674, 677 (11th Cir. 1992); United States v. Safari, 849 F.2d 891, 893

(4th Cir. 1988). We join these circuits in holding that the

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appointment of a state prosecutor as a special federal prosecutor,

subsequent to the state court action, "does not retroactively make the

federal government a party to an earlier state court proceeding."

Safari, 849 F.2d at 893. Consequently, appellants' collateral estoppel

argument fails.

C. Limited Suppression

In the alternative, appellants argue that the district

court's remedy for the violation of the amended minimization order was

inadequate. We reject this argument.

The district court ruled that the interception of the July

29 Charles/Kelley phone call was in clear violation of the amended

minimization order, entitling appellant Charles to a suppression remedy

under § 2518(1)(a)(iii). See Charles, 1998 WL 204696, at *12. The

district court, however, declined to invalidate the entire wiretap.

Instead, the court ruled that the appropriate remedy was the limited

suppression of the Charles/Kelley call because the totality of the

circumstances demonstrates that the state police's minimization efforts

were reasonably managed. See id. at 13-14. The district court's

ruling is amply supported by both the law and the record.

The Federal Wiretap Statute requires the government to

conduct electronic surveillance "in such a way as to minimize the

interception of communications not otherwise subject to interception."

18 U.S.C. § 2518(5). In Scott v. United States, 436 U.S. 128, 137-39

-26-
(1978), the Supreme Court adopted a standard of "objective

reasonableness" for assessing minimization violations. Under Scott,

the critical inquiry is whether the minimization effort was managed

reasonably in light of the totality of the circumstances. See United

States v. Hoffman, 832 F.2d 554, 557 (1st Cir. 1989); see also United

States v. Uribe, 890 F.2d 554, 557 (1st Cir. 1989) ("The touchstone in

assessing minimization is the objective reasonableness of the

interceptor's conduct."). In making this determination, we are mindful

that the reasonableness of the monitor's conduct must be viewed "in the

context of the entire wiretap as opposed to a chat-by-chat analysis."

Hoffman, 832 F.2d at 1308. Equally important, "[t]he government is

held to a standard of honest effort; perfection is usually not

attainable, and is certainly not legally required." Uribe, 890 F.2d at

557. Although compliance determinations are necessarily fact-specific,

three factors are often crucial in measuring the reasonableness of the

government's conduct: (1) the nature and complexity of the suspected

crimes, (2) the thoroughness of the government precautions to bring

about minimization, and (3) the degree of judicial supervision over the

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

1236 (1st Cir. 1995); Uribe, 890 F.2d at 557; United States v. Angiulo,

847 F.2d 956, 979 (1st Cir. 1988). Finally, we note that where an

investigation involves a drug ring of unknown proportion, as in this

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case, "the need to allow latitude to eavesdroppers is close to its

zenith." Hoffman, 832 F.2d at 1308.

Our opinion in Hoffman, which involved a minimization

violation far more significant than the one in this case, is

instructive. In Hoffman, federal agents monitoring a wiretap in a

narcotics investigation intercepted 22 calls between a suspect's wife

and her attorney. The defendants moved to suppress the entire wiretap

on the ground that the agents had flagrantly disregarded both federal

law, see 18 U.S.C. § 2518(5), and the district court's minimization

order. The district court denied the motion, electing instead to

suppress only the offending calls. This Court affirmed on the basis

that "[t]he minimization effort, assayed in light of the totality of

the circumstances, was managed reasonably." Hoffman, 832 F.2d at 1307-

08. In reaching this conclusion, the Hoffman Court rejected the

"suggestion that total suppression must be ordered to forestall future

misconduct," but left open the possibility that "in a particularly

horrendous case, total suppression may be . . . an 'appropriate'

remedy." Id. at 1309.

Here, the record is replete with evidence supporting the

district court's findings that the state police managed the wiretap in

an objectively reasonable manner, took due precautions not to

overreach, and minimized non-pertinent calls as soon as practicable.

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Accordingly, we pause only briefly to highlight some of the more

salient facts.

As in Hoffman, this was a lengthy and complex investigation

involving a significant number of drug traffickers engaged in

interstate narcotics activity. During the seven days that the wiretap

was active, the state police intercepted over 800 telephone calls, most

of which involved drug activity. They minimized 62 calls, including

four calls involving attorneys. The inadvertent interception of the

July 29 Charles/Kelly call was the only minimization error that

occurred; notably, the monitors correctly minimized all other calls

involving attorneys. In addition, the state police terminated the

wiretap after achieving their objective and did not rely on any

information gleaned from the Charles/Kelley call during any aspect of

the investigation. Equally important, judicial supervision over the

wiretap was pervasive. First, the wiretap application was supported by

a detailed, fifty-page affidavit of Trooper Thomas. Second, the

Superior Court carefully reviewed the application and issued an amended

minimization order three days after issuing the initial order. Third,

the court order was limited to a single telephone for a period of 15

days.

As indicated, given this record we see no error in the

district court's determination that "the electronic surveillance was

managed reasonably." Charles, 1998 WL 204696, at *15 (internal

-29-
quotation marks and citation omitted). Accordingly, "there was no

taint upon the investigation as a whole sufficient to warrant the

sweeping relief which [the appellants] urge[]." Hoffman, 832 F.2d at

1307. To the contrary, the district court correctly limited

suppression to the July 29 Charles/Kelley phone call only. See id.

III. Abstention

In yet another iteration of their argument that the state

court decision should have precluded the government from using the

wiretap evidence, appellants invoke the abstention doctrine. This

argument misses the mark, and we need not discuss it in depth.

There are several well-known doctrines of abstention. See

Bath Mem'l Hosp. v. Maine Health Care Fin. Comm'n, 853 F.2d 1007, 1012-

13 (1st Cir. 1988) (discussing the various abstention doctrines); see

also 17A Charles Alan Wright et al., Federal Practice and Procedure §

4241 (1998) (same). In this case, however, appellants do not cite a

specific theory of abstention. Instead, appellants quote the following

passage in support of their contention that the district court should

have dismissed the indictment: "A federal court, by abstaining, may

avoid having to decide a uniquely difficult question of state law of

great local impact and uniquely important local concern." Bath, 853

F.2d at 1012 (citing Louisiana Power & Light Co. v. Thibodaux, 360 U.S.

25 (1959)). As we have already indicated, the district court properly

ruled that "federal law governs the admissibility of evidence in

-30-
federal proceedings, regardless of whether that evidence may have been

obtained in violation of state law." Charles, 1998 WL 204696, at *6

(citing Sutherland, 929 F.2d at 769). Consequently, contrary to

appellants' assertion, the district court simply did not "decide a

uniquely difficult question of state law." Bath, 853 F.2d at 1012.

Moreover, it is equally clear that none of the recognized

doctrines of abstention apply in this case. First, Pullman abstention

is inapplicable because this case did not involve a federal

constitutional issue that would be mooted or placed in a different

posture upon construction of a state law. See Pullman Comm'n of Texas

v. Pullman Co., 312 U.S. 496, 501 (1941). Second, the Burford doctrine

does not apply, as there is no complex state regulatory scheme. See

Burford v. Sun Oil Co., 319 U.S. 315, 333-34 (1943). Finally, because

ongoing state court proceedings are a necessary prerequisite to both

Younger abstention and Colorado River principles, these doctrines are

likewise inapplicable. See Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800, 881 (1976); Younger v. Harris, 401 U.S.

37, 40 (1971). In short, appellants have failed to raise a colorable

argument in support of federal abstention.

IV. Franks Violation

Appellants allege that the evidence seized at Allen Street

must be suppressed because the state police intentionally omitted

material information from the warrant affidavit in order to mislead the

-31-
magistrate judge. Appellants cite Franks v. Delaware, 438 U.S. 154,

171-72 (1978), in support of this argument.

In Franks, the Supreme Court held that a defendant was

entitled to a hearing at which he could challenge the truthfulness of

statements made in an affidavit supporting a search warrant if the

defendant made a substantial showing that (1) a statement in the

affidavit was knowingly and intentionally false, or made with reckless

disregard for the truth, and (2) the falsehood was necessary to the

finding of probable cause. See id. In this Circuit, material

omissions by an affiant are sufficient to constitute the basis for a

Franks hearing. See United States v. Parcels of Land, 903 F.2d 36, 46

(1st Cir. 1990); United States v. Rumney, 867 F.2d 714, 720 (1st Cir.

1989). However, a district court's determination that the requisite

showing has not been made will be overturned only if clearly erroneous.

See Parcels of Land, 903 F.2d at 46; Rumney, 867 F.2d at 720; United

States v. Southard, 700 F.2d 1, 10 (1st Cir. 1983).

Here, appellants allege that Trooper Thomas's failure to

include information pertaining to the violation of the amended

minimization order was a material omission in the affidavit for the

Allen Street search warrant. We disagree. The district court

correctly ruled that interception of the Charles/Kelly telephone call

did not invalidate the entire wiretap and warranted only suppression of

that one call. Further, Thomas did not include any information from

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the Charles/Kelley call in the affidavit. The magistrate judge,

therefore, did not rely on any evidence that was obtained due to the

state police's failure to comply with the minimization order.

Consequently, we conclude that the omission was immaterial to the

validity of the search warrant. This conclusion is fatal to

appellants' argument.

V. The District Court's Ruling that the Narcotic Involved in this Case
Constitutes Crack Cocaine

Appellants argue that the cocaine base involved in this case

is not crack cocaine for the purposes of the sentencing guidelines.

See U.S.S.G. § 2D1.1(c). In support of this argument, appellants cite

the low purity of the cocaine and complain that the government produced

no evidence regarding the melting point or water solubility of the

seized narcotic. In the First Circuit, whether contraband is crack is

a question of fact which, once found, is reviewed only for clear error.

See United States v. Robinson, 144 F.3d 104, 109 (1st Cir. 1998). We

see no error in this case.

First, appellants' allegations regarding water solubility and

melting point have been squarely rejected by this Circuit. See United

States v. Ferreras, 192 F.3d 5, 11 (1st Cir. 1999); United States v.

Martínez, 144 F.3d 189, 190 (1st Cir. 1998); Robinson, 144 F.3d at 109.

In Martínez, for example, we stated:

[O]nce the government laid a proper foundation
"by introducing a chemical analysis . . . proving

-33-
 that, chemically, the contraband was cocaine
base," no further scientific evidence was needed.
Instead, the government could bridge the
evidentiary gap between cocaine base and crack
cocaine by presenting lay opinion evidence (or an
opinion proffered by an expert who possessed
practical as opposed to academic credentials)
from "a reliable witness who possesses
specialized knowledge" (gained, say, by
experience in dealing with crack or familiarity
with its appearance and texture).

144 F.3d at 190 (quoting Robinson, 144 F.3d at 108-09) (alteration in

original). In this case, the government produced competent scientific

evidence from two chemists to prove that the 221 grams of contraband

seized at the time of appellants' arrest was cocaine base. Once the

government introduced this testimony, no additional scientific evidence

was needed. From that point forward, competent lay testimony, such as

that of Trooper Thomas, remarking on the substance's distinctive

appearance and texture and identifying it as crack, completed the

necessary link in the evidentiary chain. See Ferreras, 192 F.3d at 11;

Martínez, 144 F.3d at 190; Robinson, 144 F.3d at 109.

Appellants' drug purity argument is also contrary to well

established law. In Chapman v. United States, 500 U.S. 453 (1991), the

Supreme Court held that unless otherwise specified, the purity of a

controlled substance is not a factor in sentencing under 21 U.S.C. §

841(b). See id. at 459-68. The Court explained: "Congress adopted a

'market-oriented' approach to punishing drug trafficking, under which

the total quantity of what is distributed, rather than the amount of

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pure drug involved, is used to determine the length of the sentence."

Id. at 461. The Court further explained:

Congress clearly intended the dilutant, cutting
agent, or carrier medium to be included in the
weight of [cocaine] for sentencing purposes.
Inactive ingredients are combined with pure
heroin or cocaine, and the mixture is then sold
to consumers as a heavily diluted form of the
drug. In some cases, the concentration of the
drug in the mixture is very low. . . .

By measuring the quantity of the drugs according
to the "street weight" of the drugs in the
diluted form in which they are sold, rather than
according to the net weight of the active
component, the statute [21 U.S.C. § 841] and the
Sentencing Guidelines increase the penalty for
persons who possess large quantities of drugs,
regardless of their purity. That is a rational
sentencing scheme.

Id. at 460, 465. As the Chapman Court indicated, the Sentencing

Guidelines explicitly adopt this approach:

Unless otherwise specified, the weight of a
controlled substance set forth in the table
refers to the entire weight of any mixture or
substance containing a detectable amount of the
controlled substance. If a mixture or substance
contains more than one controlled substance, the
weight of the entire mixture or substance is
assigned to the controlled substance that results
in the greater offense level.

U.S.S.G. § 2D1.1(c) note A. Consequently, we conclude that the

district court properly based appellants' sentence on the total weight

of the narcotic without regard to the purity of the cocaine base. See

-35-
Chapman, 500 U.S. at 460-65; U.S.S.G. § 2D1.1(c); see also United

States v. Cartwright, 6 F.3d 294, 303 (5th Cir. 1993).
CONCLUSION

For the reasons stated above, we AFFIRM appellants'

convictions and the corresponding sentences imposed by the district

court.

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