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
-2-
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
-3-
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.
-5-
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
-6-
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).
-7-
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
-8-
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.
-9-
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)
-10-
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
-12-
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
-13-
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
-14-
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
-15-
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.
-16-
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
-17-
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
-18-
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).
-19-
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
-20-
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)).
-21-
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
-22-
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.
-23-
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).
-24-
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.
-25-