United States v. Lee

• Court: Court of Appeals for the Third Circuit
• Decided: February 20, 2004
• Docket: 01-1629
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

2-20-2004

USA v. Lee Precedential or Non-Precedential: Precedential

Docket No. 01-1629

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Recommended Citation "USA v. Lee" (2004). 2004 Decisions. Paper 948. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/948

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UNITED STATES COURT OF GEORGE S. LEONE APPEALS Chief, Appeals Division FOR THE THIRD CIRCUIT MICHAEL M ARTINEZ (argued) Assistant U.S. Attorney U.S. Department of Justice No. 01-1629 970 Broad Street Newark, NJ 07102-2535

Counsel for Appellee UNITED STATES OF AMERICA

v. OPINION OF THE COURT ROBERT W. LEE, SR., Appellant

ALITO, Circuit Judge: ON APPEAL FROM THE UNITED This is an appeal by STATES DISTRICT COURT FOR THE defendant Robert W. Lee, Sr. (“Lee”) from DISTRICT OF NEW JERSEY a judgment in a criminal case. Lee was indicted on charges stemming from the (D. C. Criminal No. 99-640-1) alleged payment of bribes by boxing District Court Judge: John W. Bissell, Jr. promoters to Lee and other officials of the International Boxing Federation (“IBF”). After a jury trial, Lee was convicted of one count of conspiracy to engage in money Argued September 20, 2002 laundering, in violation of 18 U.S.C. § 1956(h); three counts of interstate travel in Before: SCIRICA, Chief Judge, and aid of racketeering, in violation of 18 ALITO, and MCKEE, Circuit Judges. U.S.C. § 1952 (the “Travel Act”) and 18 U.S.C. § 2; and two counts of filing false (Opinion Filed: February 20, 2004) tax returns, in violation of 26 U.S.C. § 7206. He was sentenced to a concurrent GERALD KROVATIN (argued) term of 22 months’ imprisonment on each Krovatin & Associates count and was fined $25,000. 744 Broad Street, Suite 1901Newark, NJ In this appeal, Lee argues (1) 07102

1 that video tapes that show him receiving championship committee, chaired by Don money from a confidential government “Bill” Brennan, and the ratings committee, informant violated his Fourth Amendment chaired by C. Douglas Beavers. rights and should have been suppressed, In May 1996, the Federal (2) that the District Court misinstructed the Bureau of Investigation received jury concerning the meaning of the “duty information that boxing promoters were of fidelity” under the New Jersey paying certain IBF officials in order to commercial bribery statute, N.J.S.A. receive more favorable IBF ratings for 2C:21-10, (3) that his Travel Act and their boxers. Beavers was questioned and, money laundering conspiracy convictions in May of 1997, chose to cooperate with must be reversed because they are the FBI. He told investigators that he had predicated upon the N ew Jersey solicited and received bribes from boxing commercial bribery statute, and there is an promoters and that these bribes had been insufficient nexus between his conduct and divided equally among himself, Brennan, New Jersey to permit the application of the Lee, and Lee's son, Robert W. Lee, Jr. New Jersey statute, (4) that his money ("Lee, Jr."). Beavers, who is based in laundering conviction should be reversed Portsmouth, Virginia, further testified that because the evidence at trial did not prove h e h a d h e l d r eg u l a r t e le p h o n e the existence of a single conspiracy, (5) conversations with Lee, who works out of that two of the Travel Act counts were the IBF headquarters in East Orange, impermissibly amended at trial, and (6) regarding strategies for maximizing that the District Court erred when it payment amounts, methods for laundering imposed concurrent sentences of 22 bribes that were received as checks1 , and months’ imprisonment on the tax counts. arrangements for Lee to travel from New We affirm. I. 1 Because of the difficulty of Lee was a cofounder and transporting large amounts of cash from president of the IBF, an organization that South America, bribes from South crowns international boxing champions American promoters were sometimes and publishes ratings of boxers within received in the form of checks. These different weight divisions. The ratings are were either hand delivered or mailed to published monthly from the IBF Beavers, who would then deposit the headquarters in East Orange, New Jersey. checks into a bank account belonging to The primary function of the ratings is to the Portsm outh Ath letic C lub, a determine which boxers will fight in gymnasium owned by Beavers. Once the upcoming IBF championship bouts. checks had cleared, Beavers would then During the period relevant to this appeal, retain his share and distribute the Lee served on the IBF Executive Board remainder of the bribe to Lee in the form and various IBF committees, including the of cash.

2 Jersey to Virginia to collect his share of Fernandez on 35 counts related to the the bribes. receipt of bribes from boxing promoters. As noted, Lee Sr. was convicted on six With Beavers’ cooperation, counts but acquitted on the rest. Lee, Jr. the FBI made audio and video recordings was acquitted on all counts. The case of three meetings between Beavers and against Brennan was dismissed because of Lee that took place in Portsmouth, his ill health and age, and Fernandez Virginia, on June 9, 1997, December, 18, remains a fugitive outside the United 1997 and October 21, 1998. The meetings States. were held in a hotel suite rented by Beavers for Lee in the Portsmouth Holiday II. Inn and were electronically monitored and A. recorded using equipment installed in the living room of the suite by the FBI prior to Lee challenges the District Lee’s arrival. This equipment consisted of Court’s admission into evidence of tapes a concealed camera and microphone that of meetings in his hotel suite. Lee transmitted video and audio signals to a contends that the monitoring and recording monitor and recorder located in an of these meetings violated his Fourth adjacent room. The FBI did not obtain a A m e n d m e n t r i g ht s b e c a us e t h e warrant authorizing the installation or use government did not obtain a warrant. of the equipment but instead relied on Lee’s argument, however, is inconsistent Beavers’ consent. The government agents with well-established Fourth Amendment located in the room next to Lee’s suite precedent concerning the electronic were instructed to monitor activity in the monitoring of conversations with the corridor to determine whether or not consent of a participant. Beavers had entered Lee’s rooms. The In United States v. Hoffa, agents were further instructed to switch on 385 U.S. 293 (1967), a confidential the monitor and recorder only when government informant named Partin met Beavers was in the suite and that, at all with the defendant in the defendant’s hotel other times, the monitor and recorder were suite and elsewhere and testified about to be switched off. During the December those conversations at trial. The defendant 1997 meeting, Beavers was recorded argued that Partin had conducted an illegal handing Lee cash that had originated as a search for verbal evidence and that, bribe paid to the IBF’s South American because the defendant was unaware of representative, Francisco “Pancho” Partin’s role as an informant, the defendant Fernandez, by a Colombian boxing had not validly consented to his entry into promoter, Billy Chams. the suite. Id. at 300. The Supreme Court On November 4, 1999, a rejected this argument, holding that the federal grand jury in the District of New defendant had “no interest legitimately Jersey indicted Lee, Lee, Jr., Brennan and protected by the Fourth Amendment.” Id.

3 at 301-02. The Court concluded that the equipment which Fourth Amendment does not protect “a simultaneously transmits the wrongdoer’s misplaced belief that a person conversations either to to whom he voluntarily confides his recording equipment located wrongdoing will not reveal it.” Id. at 302. elsewhere or to other agents monitoring the transmitting Although Hoffa involved testimony frequency . . . . about conversations and not electronic recordings of conversations, the Supreme 440 U.S. at 750-51 (quoting United States Court in later cases drew no distinction v. White, 401 U.S. 745, 749 (1971)) between the two situations. See United (citation omitted)). The Court added that States v. Caceres, 440 U.S. 741, 744 it had “repudiated any suggestion that [a] (1979); United States v. White, 401 U.S. defendant had a ‘constitutional right to rely 745, 752 (1971) (plurality). As the Court on possible flaws in the agent’s memory, in Caceres put it, or to challenge the agent’s credibility without being beset by corroborating Concededly a police agent evidence that is not susceptible of who conceals his police impeachment.’” Id. at 750 (quoting Lopez connections may write down v. United States, 373 U.S. 427, 439 f o r o f f i c ia l u s e h is (1963)). In short, the Court adopted the c o n v e r s a ti o n s w i t h a principle that, if a person consents to the d e f en d a n t a n d t e stify presence at a meeting of another person concerning them, without a who is willing to reveal what occurred, the warrant authorizing his Fou rth A m e n d m en t p e rm its th e encounters w i t h the government to obtain and use the best defendant and without available proof of what the latter person otherwise violating the could have testified about. This principle latter’s Fourth Amendment appears to doom Lee’s argument here. rights. Hoffa v. United States, 385 U.S., at 300-303. Lee argues, however, that neither For constitutional purposes, the Supreme Court nor our court has no different res ult is e x t e n d e d t h is p r i n c i p l e t o t h e required if the agent instead circumstances present in this case. He of immediately reporting points to three factors: (1) the agents used a n d t r a n s c r ib i n g h i s video rather than audio equipment; (2) the c o n v e r s a ti o n s wit h recording occurred in Lee’s hotel room, a d e f e n d a n t , e it h e r ( 1 ) place where a person has a heightened simultaneously records them expectation of privacy; and (3) the with electronic equipment monitoring equipment remained in the which he is carrying on his room when Beavers was not present. person; (2) or carries radio

4 In making this argument, Lee relies usable conversations with on the First Circuit’s decision in United agents would occur. States v. Padilla, 520 F.2d 526, 527-28 (1st Id. at 528. See also United States v. Cir. 1975), which held that the defendant’s Shabazz, 883 F.Supp. 422 (D.Minn. 1995) Fourth Amendment rights were violated (audio and video recording). when agents placed an audio recording device in the defendant’s hotel room and In contrast to the First Circuit, the recorded conversations between the Second and Eleventh Circuits have held defendant and another person who that the Fourth Amendment is not violated consented to the recordings. In reaching by the use of a fixed electronic device to this conclusion, the First Circuit expressed record a meeting between a defendant and concern that if law enforcement officers a person who consents to the recording. were permitted to leave a monitoring or United States v. Yonn, 702 F.2d 1341, recording device in a hotel for a lengthy 1346-47 & n. 5 (11th Cir. 1983); United period of time the officers would be States v. Myers, 692 F.2d 823 (2d Cir. tempted to monitor or record conversations 1982). In Myers, a defendant was that occurred when no consenting videotaped during a meeting with a participant was present. Id. As the Court government informant at a townhouse put it, maintained by the FBI. Id. at 832. Rejecting the defendant’s Fourth [t]he government’s position Amendment argument, the Court stated would turn on its head the that the defendant’s “conversations with carefully tailore d undercover agents in whom he chose to [consenting party] exception confide were not privileged, and to . . . one’s expectation of mechanical recordings of the sights and privacy. Electronic devices sounds to which the agents could have could be installed for testified were proper evidence.” Id. at lengthy periods of time 859. with out antecedent authority, so long as only a In Yonn, the Eleventh Circuit suspect’s conversations with likewise held that the Fourth Amendment police agents were offered was not violated when agents placed a in e vidence and th e microphone in a motel room and e n f o r c e m e n t o f f i c ia l s monitored and recorded the defendant’s alleged that nothing else conversations when a person who was recorded. Under this consented to the surveillance was present. approach a room or an entire The Court held that “[t]he location of the hotel could be bugged electronic equipment does not alter the permanently with impunity irrefutable fact that Yonn had no and with the hope that some justifiable expectation of privacy in his

5 conversation with [the person who constitutiona l distinction between consented].” 702 F.2d at 1347. The Court consensual audio and video surveillance. also specifically rejected the reasoning of The principle underlying the governing Padilla, stating that it saw “no reason to Supreme Court cases is that if a defendant suppress the recording of a clearly consents to the presence of a person who unprotected conversation merely because could testify about a meeting and is willing the monitoring technique employed poses to reveal what occurs, the defendant a hypothetical risk that protected relinquishes any legitimate expectation of conversations may be intercepted.” Id. at privacy with respect to anything that the 1347 n.5. testimony could cover. Thus, just as Lee gave up any expectation of privacy in the We have considered the concern things that he allowed Beavers to hear, Lee expressed by the Padilla Court, but we also gave up any expectation of privacy in remain convinced that the present case is the things that he allowed Beavers to see. governed by the well-established principle Although video surveillance may involve that a person has no legitimate expectation a greater intrusion on privacy than audio of privacy in conversations with a person surveillance, the difference is not nearly as who consents to the recording of the great as the difference between testimony conversations. None of the three factors about a conversation and audio recordings on which Lee relies appears to us to be of conversations. As noted, however, the sufficient to take this case beyond the Supreme Court has not drawn any reach of this principle. distinction between those two types of First, we cannot distinguish this evidence, and we similarly see no case on the ground that the recorded cons titutionally relevant distin ction meetings occurred in a hotel suite. What is between audio and video surveillance in significant is not the type of room in which the present context. the surveillance occurred but Lee’s action Finally, we do not agree with the in admitting Beavers to the room. First Circuit that it is appropriate to Although Lee had an expectation of suppress recordings of meetings between privacy in the hotel suite so long as he was a defendant and a cooperating individual alone there, when Lee allowed Beavers to simply because the recording device was enter, any expectation of privacy vis-a-vis placed in the room rather than on the Beavers vanished. We note that in Hoffa cooperating individual’s person. To be many of the conversations also occurred in sure, there are three circumstances in a hotel suite, but the Court nevertheless which this distinction would matter for held that the case did not involve any Fourth Amendment purposes. First, if the legitimate Fourth Amendment interest. defendant had an expectation of privacy in 385 U.S. at 296. the premises at the time when the device Second, we cannot draw a was installed, the entry to install the device

6 would constitute a search. Second, the Court feared. Nor is it intuitively obvious cases involving consensual monitoring do that there is much risk of such abuse. As not apply if recordings are made when the noted, the Padilla Court feared that law cooperating individual is not present. enforcement agents would install Third, the logic of those cases is likewise electronic devices in a hotel rooms and inapplicable if the placement of the monitor what occurred “in the hope that recording device permits it to pick up some usable conversations with agents evidence that the cooperating individual would occur.” 520 F.2d at 527-28. could not have heard or seen while in the However, there are numerous reasons to room. Unless one of these circumstances doubt whether law enforcement is likely to is present, however, it does not matter for find this an alluring strategy. Fourth Amendment purposes whether the First, a person who illegally device is placed in the room or carried on intercepts wire, oral, or electronic the person of the cooperating individual. communicates is subject to criminal and In either event, the recording will not civil penalties, see 18 U.S.C. §§ 2511, gather any evidence other than that about 2520, and a federal agent who violates the which the cooperating witness could have Fourth Amendment may be sued under testified. Bivens v. Six Unknown Fed. Narcotics As the government argues, the Agents, 403 U.S. 388 (1971). Second, in decision in Padilla appears to be based, not order to install a monitoring device, law on the conclusion that the recordings in enforcement authorities or a person that case had been obtained in violation of cooperating with them must acquire a right the Fourth Amendment, but on a to enter the premises, such as by obtaining prophylactic rule designed to stamp out a a warrant or renting the premises in which law enforcement technique that the Court the device is to be installed. Thus, the viewed as creating an unacceptable risk of Padilla Court’s fear that agents might bug abuse. Even assuming for the sake of “an entire hotel,” 520 F.2d at 528, and the argument that we have the authority to fear of the District Court in Shabazz that adopt such a rule 2 , however, we would not devices could be placed in a person’s do so. Although Padilla was decided more home, see 883 F.Supp. at 425, seem than a quarter century ago and has not misplaced. Third, it is not clear that law been followed in any other circuit, we are enforcement would have much to gain not aware of evidence that the installation from monitoring conversations that occur of recording devices to monitor meetings when a cooperating individual is not attended by a cooperating individual has present. A video tape of a conversation led to the sort of abuse that the Padilla generally reveals whether a cooperating individual is present, and without proof of the presence of the cooperating individual, 2 But see United States v. Payner, the tape is inadmissible. We do not go so 447 U.S. 727, 735-36 & n.8 (1980).

7 far as to say that there is no risk of the type Lee next contends that the District of abuse that worried that Padilla Court, Court misinstructed the jury regarding the but the risk is not great enough to justify elements of commercial bribery under the the holding of the Padilla Court. New Jersey Commercial bribery statute, N.J.S.A. § 2C:21-10, which figured in four In the present case, there was no of the counts on which Lee was convicted, violation of Lee’s Fourth Amendment i.e., the three counts of interstate travel in rights. The monitoring devices were aid of racketeering and the money installed in the suite’s living room at a laundering conspiracy count. 3 Our time when Lee had no expectation of “[r]eview of the legal standard enunciated privacy in the premises. There is no in a jury instruction is plenary,” United evidence that conversations were States v. Yeaman, 194 F.3d 442, 452 (3d monitored when Beavers was absent from Cir. 1999), “but review of the wording of the room, and Beavers was plainly there at the instruction, i.e., the expression, is for the time of the incriminating meetings abuse of discretion.” Id. “This Court shown on the tapes that were introduced at reviews jury instructions to determine Lee’s trial. We are satisfied that the tapes whether, ‘taken as a whole, they properly do not depict anything material that apprized the jury of the issues and the Beavers himself was not in a position to hear or see while in the room. Finally, we reject Lee ’s sug gestio n that t he 3 government was required, before resorting The Travel Act counts charged that to video surveillance, to demonstrate that he traveled in interstate commerce with the less intrusive investigative techniques intent to promote, manage, establish, carry were unlikely to succeed. Although this on and facilitate the promotion, requirement applies to m onitorin g management, establishment and carrying governed by the federal wiretapping on of commercial bribery in violation of statute, 18 U.S.C. § 2518(3)(c), that statute the New Jersey bribery statute. The does not apply to electronic surveillance relevant part of the money laundering conducted with the prior consent of a party conspiracy count charged that Lee and the to the communication. Similarly, judicial other alleged conspirators conspired to d e c i s io n s c o nside ring a s imil a r commit the offense of engaging in requirement in cases involving silent video financial transactions involving proceeds surveillance conducted without a derived from violations of the New Jersey participant’s consent, see United States v. commercial bribery statute while knowing Williams, 124 F.3d 411, 416 & n.5 (3d that these proceeds were derived from Cir. 1997), are inapplicable in this context. such violations and that the financial We therefore reject Lee’s argument that transactions were designed at least in part the tapes should have been suppressed. to conceal and disguise the nature, location, source, ownership, and control of B. the proceeds.

8 applicable law.’” Id. (quoting Dressler v. an officer, a director, a Busch Entertainment Corp., 143 F.3d 778, manager or other participant 780 (3d Cir. 1998)). in the direction of the affairs of an incorporated or The New Jersey commercial bribery unincorporated association. statute provides in relevant part as follows: A person commits a Joint App. at 3788. This was a crime if he solicits, accepts straightforward and accurate statement of or agrees to accept any the elements of N.J.S.A. § 2C:21-10a. benefit as consideration for The Court further instructed the kno wingly violating or jury as to the meaning of a “duty of agreeing to violate a duty of fidelity,” stating: fidelity to which he is subject as . . . An officer, A person who owes a director, manager or other duty of fidelity or loyalty participant in the direction may not engage in self- of the affairs of an dealing or otherwise use his incorporated or or her position to further unincorporated association . personal interests rather than .... those of the beneficiary. For example officers and N.J.S.A. § 2C:21-10a (emphasis added). directors have a duty not to The District Court instructed the engage in self-dealing to jury that the three elements needed in further their own personal order to establish a violation of the New interests rather than the Jersey commercial bribery statute are: interests of the corporation. First, that th e .... d e f e n d a n t s o l ic i t ed , The duty of loyalty or accepted or agreed to accept fidelity may also arise based a benefit; on the existence of a Second, that the contractual relationship defendant did so in between a defendant such as consideration for knowingly Mr. Lee, Sr. and the violating or agreeing to corporation such as the IBF. violate a duty of fidelity; A contract creates a duty between the contracting Third, that th e parties to adhere to the defendant owed that duty of terms of the contract, and fidelity because he is either those terms may include or

9 encompass a duty of the ratings of boxers) any failure to draw fidelity. A director the fine distinction suggested by Lee or officer’s failure to (between “specific” and “generic” abide by the terms of corporate duties) was harmless. his contract with a Lee next maintains that the corporation could, if instructions regarding the “duty of you so find, be a fidelity” were flawed because the jury breach of his duty of could have interpreted them to mean that l o ya lty to th e proof that he breached this duty was alone corporation. sufficient to establish that he violated Joint App. at 3790-91. N.J.S.A. § 2C:21-10a. Lee’s argument is not convincing. The Court’s discussion of Pointing to these latter instructions, the meaning of a “duty of fidelity” was Lee contends that the District Court erred delivered immediately after its careful by telling the jury (1) that a person can explanation of the three elements that were breach a “duty of fidelity” merely by necessary for the jury to convict Lee of engaging in self-dealing and (2) that a violating N.J.S.A. § 2C:21-10a, and one of breach of an employment contract is a per these elements was that “the defendant se breach of a duty of fidelity. We [received a benefit] in consideration for disagree. Lee first argues that the District knowingly violating or agreeing to violate Court went astray in instructing the jury a duty of fidelity.” Joint App. at 3788. that any act of self-dealing by a corporate Thus, the District Court did not read the officer constitutes a breach of a duty of element of consideration out of the statute. loyalty. According to Lee, the New Jersey commercial bribery statute reaches only “those specific duties of the actor ‘to Finally, Lee suggests that the which he is subject’ as a director, manager, District Court told that jury that a breach etc. of the specific corporation at issue, not of contract is per se a breach of a duty of to generic, vague, undefined corporate fidelity, Appellant’s Br. at 33, but the duties, such as a duty to refrain from ‘self- District Court said no such thing. Rather, dealing.’” Appellant’s Br. at 32 (emphasis the Court said only that a duty of loyalty or added). However, Lee cites no New fidelity “may . . . arise based on the Jersey case law that supports this existence of a contractual relationship interpretation of N.J.S.A. § 2C:21-10a; we between a defendant such as Mr. Lee, Sr. are not aware of any such authority; and and the corporation such as the IBF” and the jury instruction in question seems to be that “[a] director or officer’s failure to an accurate interpretation of the statutory abide by the terms of his contract with a language. Moreover, in light of the nature corporation could, if you so find, be a of the breach alleged in this case breach of his duty of loyalty to the (accepting bribes in exchange for rigging corporation.” Joint App. at 3791

10 (emphasis added). We are convinced that Appellant’s Br. at 39. Lee contends that the jury instructions, read in their entirety, “the vast majority of the conduct “properly apprized the jury of the issues constituting ‘commercial bribery’ took and the applicable law.” Yeaman, 194 place outside the state of New Jersey in F.3d at 452. states that either do not consider such conduct a crime, or do not consider it as C. serious a criminal offense as New Jersey Lee next contends that his does.” Appellant’s Br. at 36. He notes convictions for interstate travel in aid of that the bribe money was handed to him by racketeering and for conspiracy to engage in money laundering violated his rights to due process.4 Asserting that those to permit that state to regulate that conduct convictions were predicated on violations without violating the federal Constitution. of the New Jersey commercial bribery The state-law question of whether the statute, Lee argues that “the connections conduct at issue is sufficiently tied to the between the conduct underlying [those state to bring the conduct within the scope counts] and the State of New Jersey [were] of the state commercial bribery statute has tenuous at best” and that the application of not been developed in Lee’s briefs, and we the New Jersey statute to the conduct at do not regard that question as before us in issue would violate due process. 5 this appeal. Lee’s brief does refer to the New Jersey statute that specifies the 4 At one point in his brief, Lee territorial reach of the state’s criminal claims that the application of the New laws, N.J.S.A. 2C1-3, but Lee makes no Jersey commercial bribery statute to the attempt to argue that the conduct at issue conduct charged in the counts at issue also here does not fall within this provision. In violated his right to the equal protection of particular, Lee does not explain why the the laws, but his brief makes no attempt to conduct at issue in this case does not fall explain what this invocation of the Equal within N.J.S.A. § 2C:1-3a(1), which Protection Clause adds to his due process provides that “a person may be convicted argument. We are therefore unable to under [New Jersey law] if . . . [e]ither the assess any independent equal protection conduct which is an element of the offense argument regarding the New Jersey or the result which is such an element commercial bribery statute. occurs within this State.” Instead, of addressing this question, Lee’s brief 5 We understand the question before quickly notes that this statute “is itself us to be exclusively one of federal subject to constitutional review where constitutional law, not state law. extra-territorial application of New Jersey Specifically, we understand the question to law would violate the due process clause be whether the conduct at issue is of the United States Constitution.” sufficiently tied to the State of New Jersey Appellant’s Br. at 38-39.

11 Beavers in Virginia and that the In this case, both the purpose and the agree men ts between Beavers and effect of the commercial bribery was to Fernandez, the IBF’s South American cause the IBF, which has its principal representative, were made outside of New place of business in New Jersey, to alter its Jersey. Lee’s arguments are not rankings of boxers. Thus, the conduct in persuasive. question had effects within New Jersey: it tended to harm a business headquartered in “Acts done outside a jurisdiction, the state and to produce attendant but intended to produce and producing consequences there. These effects are detrimental effects within it, justify a state sufficient to permit the state to regulate the in punishing the cause of the harm as if conduct without violating due process. [the defendant] had been present [in the state] at the effect.” Strassheim v. Daily, The First Circuit’s decision in 221 U.S. 280, 284 (1911). See also United United States v. Woodward, supra, States v. Woodward, 149 F.3d 46, 66 (1st supports this conclusion. In Woodward, a Cir. 1998). 6 Cf. Model Penal Code § 1.03. member of the Massachusetts Legislature accepted gratuities in Florida and was convicted under the Travel Act of 6 Lee relies on BMW of North traveling in interstate commerce with the America, Inc. v. Gore, 517 U.S. 559 intent to promote the offense of (1996), and Healy v. Beer Institute, Inc., commercial bribery, in violation of the 491 U.S. 324 (1981), but we do not find Massachusetts statute. The First Circuit those cases to be apposite. Pointing to, held that the potential effect on among other things, the restrictions Massachusetts when one of its legislators imposed by the dormant Commerce accepts gratuities in another state was Clause, the Court in BMW held that a state sufficient to satisfy the “effects test” set court’s award of punitive damages “must out in Strassheim. 149 F.3d at 67-68. be supported by the State’s interest in Lee attempts to distinguish protecting its own consumers and its own Woodward by arguing that the conduct of economy.” Id. at 572. Lee does not make the defendant in that case created a a make a dormant Commerce Clause potential for harm that was unique to his argument here, and in any event, BMW own state (because he was a member of does not preclude a state from basing an that state’s legislature), whereas the effects award of punitive damages on conduct that of Lee’s conduct “were no greater in New occurs outside the state but that has a Jersey than they were in any other state.” sufficient effect on the state’s “own Reply Br. at 12. However, the effects consumers and its own economy.” Id. Healy held that a state law concerning beer prices violated the dormant Commerce Clause. As noted, Lee Clause argument here, and therefore we do does not make a dormant Commerce not address that issue.

12 within a state of extraterritorial conduct proved the existence of a series of need not be unique to that state in order to unrelated conspiracies between different justify the exercise of jurisdiction. The boxing promoters and individual officers effects need only be of sufficient of the IBF. Lee argues that his conviction magnitude, and while the effects-test for conspiracy to engage in money argument was stronger in Woodward than laundering should therefore be reversed. it is here, the effects here were adequate. We reject this argument. Moreover, we note that, contrary to Lee’s We exercise plenary review over suggestion, his conduct did create the “whether there was sufficient evidence potential for special harm in New Jersey from which the jury could have concluded because that is where the IBF is that the government proved the single headquartered and publishes its rankings. conspiracy alleged in the indictment.” We thus hold that Lee’s convictions on the United States v. Kelly, 892 F.2d 255, 258 counts in question did not violate due (3d Cir. 1989). In reviewing the process. sufficiency of the evidence after D. conviction, we must view the evidence in the light most favorable to the verdict. Id. Lee contends that the government Where a single conspiracy is alleged in an failed to prove the existence of a single indictment, and the evidence at trial merely conspiracy to engage in money laundering, proves the existence of several distinct as charged in the indictment, 7 and merely conspiracies, there is an impermissible variance. Id. On the other hand, “a finding of a master conspiracy with sub- 7 Count 27 of the Superceding schemes does not constitute a finding of Indictment provides, in relevant part:

From in or about December 1990, fact, involved the proceeds of specified through in or about November 1997, in the unlawful activity, namely, bribery, district of New Jersey, and elsewhere, contrary to N.J.A.C. §§ 2C:21-10(a)(4) defendant ROBERT W. LEE, SR., and and 2C:21-10(b). separately charged Don Brennan, a/k/a/ .... “Bill”, and separately charged Francisco b. knowing that the transaction was Fernandez, a/k/a/ “Pancho,”a/k/a “Pacho,” designed in whole and in part to disguise and others conspired to violate Title 18, the nature, location, source, ownership and United States Code, Section 1956(a)(1), control of the proceeds of specified that is, knowing that the property involved unlawful activity, nam ely, bribery, in financial transactions represented the contrary to N.J.A.C . §§ 2C:21-10(a)(4) proceeds of some form of unlawful and 2C:21-11(b). activity, conducted and attempted to conduct financial transactions, which in Joint App. at 120.

13 multiple, unrelated conspiracies and, of the Kelly inquiry is satisfied because t h e r e fo r e , w ould not c r e a te an Lee, Lee Jr., Brennan and Fernandez impermissible variance.” Id. (quoting shared a common goal, namely, to receive United States v. Smith, 789 F.2d 186, 200 shares of the payments from boxing (3d Cir. 1986)). In Kelly, we adopted a promoters. The second step in the Kelly three-step inquiry to distinguish a single inquiry – that the co-conspirators each conspiracy from a series of separate, acted to bring about a continuous result unrelated conspiracies: that would not have continued but for their continuing cooperation – is also met First, we examine because the participants continuously whether there was a cooperated in their receipt of bribes, in the common goal among the laundering of checks, and in the conspirators. Second, we distribu tion of p rocee ds be tw een look at the nature of the themselves. For example, Lee held several scheme to dete rmin e conversations with Beavers regarding the whether the agreement risks of receiving bribes in the form of contemplated bringing to checks, and Beavers deposited checks that pass a continuous result that he had received from Fernandez into the will not continue without bank account belonging to the Portsmouth the continuous cooperation Athletic Club and then distributed part of of the conspirators. Third, the proceeds to Lee. Finally, there was we examine the extent to sufficient evidence to show that the which the participants participants overlapped in the various overlap in the various dealings, in satisfaction of the third Kelly dealings. factor. In establishing this third factor, the Id. at 259 (citations and quotation marks government is not required to “prove that omitted). each defendant knew all the details, goals, or other participants in order to find a Application of the Kelly inquiry single conspiracy.” Id. at 260 (internal shows that the jury had a reasonable basis quotation marks and citations omitted). for concluding that what Lee alleges were Evidence was presented at trial that Lee four separate conspiracies was in fact part participated in each of the four supposedly of the same overarching conspiracy to separate schemes, Beavers was directly launder the proceeds of the bribes paid to implicated in three 9 , and Fernandez was Lee and other IBF officials.8 The first step

conspiracies involved direct payments by 8 Two of the allegedly separate U.S. boxing promoters to Lee and Beavers. conspiracies involved payments by 9 Colombian boxing promoters to Fernandez He either received money from and then to Beavers. The two remaining Fernandez or directly from a boxing

14 directly implicated in two. Counts 21 and 23 of the indictment included the following language: In sum, there was sufficient evidence, when viewed in the light most On or about the following favorable to the government, from which dates, in the district of New the jury could have concluded that there Jersey, and elsewhere, the was a single conspiracy, as opposed to a below-named defendants series of unrelated smaller agreements did knowingly and wilfully between the participants. travel in interstate and foreign commerce as E. described below, with intent Lee contends that the two of the to promote, manage, Travel Act counts of the indictment were establish, carry on and improperly amended at trial. We exercise facilitate the promotion, plenary review over a claim that an management, establishment indictment was impermissibly amended. and carrying on of an United States v. Asher, 854 F.2d 1483, unlawful activity, that is, 1497-98 (3d Cir. 1988). “In order to rise bribery, contrary to N.J.S.A. to the level of an impermissible 2C:21–10(a)(4) and 2C:21- amendment, a variance must act to modify 10(b), and therafter did the indictment so that the defendant is perform, and cause the convicted of a crime that involves performance of an act to elements distinct from those of the crimes promote, manage, establish, with which he was originally charged.” Id. carry on and facilitate the at 1497. “Thus, where trial evidence [has] promotion, management, amended the indictment by broadening the and carrying on of said possible bases for conviction from that unlawful activity. which appeared in the indictment, the .... variance violates the defe ndan t’s substantial right to be tried only on charges Count Date Defendants returned by a grand jury.” Id. (citations From/To and quotation marks omitted, emphasis 21 11/97 Lee, Sr. and alteration in original). “If, on the Colombia to other hand, the variance does not alter the Virginia elements of the offense charged, [courts] focus upon whether or not there has been 23 6/98 Lee, Sr. prejudice to the defendant.” Id. (alteration Colombia to in original). Virginia. A pp e l l ee’s Supp. App. at promoter.

15 64-65 133 F.3d 246, 250 (3d Cir. 1998).10 (e m ph Accordingly, even though Counts 21 and a s i s 23 of Lee’s indictment could perhaps have added) been more carefully drafted, it is apparent . that these counts apply both to travel in aid of racketeering by Lee himself, acting as principal, and to Lee’s aiding and abetting In violation of Title 18, United the travel in aid of racketeering of another States Code, Sections 1952 and 2. unnamed individual or individuals. The evidence presented at trial showed that Lee Appellee’s Supp. App. at 64-65 aided and abetted Fernandez’s travel to (emphasis added). and from Colombia but did not show such Lee contends that his conviction travel by Lee. The elements of the offense under these counts should be overturned charged in Lee’s indictment were therefore because the government impermissibly narrowed at trial. Accordingly, we look to amended the indictment by presenting whether Lee suffered any prejudice. evidence at trial, not that he traveled from Asher, 854 F.2d at 1497. The indictment “Colombia to Virginia” on or about charged Lee with aiding and abetting “11/97" and “5/98,” as the indictment travel between Colombia and Virginia by charged, but that Fernandez made those an unnamed individual on or about trips. We disagree. November of 1997 and June of 1998. Evidence at trial showed that Fernandez, Lee’s argument ignores the fact that the IBF’s South American representative Counts 21 and 23 charge that the alleged and Lee’s co-indictee, was the unnamed conduct violated “Title 18, United States individual that Lee had aided and abetted Code, Sections 1952 and 2,” Appellee’s in his travels between Colombia and Supp. App. at 65 (emphasis added), and Virginia during these months. We cannot under 18 U.S.C. § 2 Lee could be held believe Lee was prejudiced by this liable as a principal for Fernandez’s travel narrowing of the government’s theory at in interstate or foreign commerce if Lee trial. aided, abetted, counseled, commanded, induced, procured, or willfully caused F. Fernandez to engage in that conduct. We have previously noted that criminal 10 indictments are to be read “as a whole and Moolenar dealt w ith an interpret[ed] in a common sense manner.” information, as opposed to an indictment, Gov’t of the Virgin Islands v. Moolenar, but stressed that, for the purpose of assessing the permissibility of amendments at trial, an information and an indictment should be treated in the same manner. 133 F.3d at 248.

16 Lee’s last argument is that the six counts. Id. at 3700. Because the District Court erred when it sentenced him statutory maximum for Lee’s tax offenses, to concurrent terms of 22 months’ 3 years, is not less than the minimum imprisonment on the two tax counts, which guideline range of 21 months, and because charged violations of 26 U.S.C. § 7206. there was no mandatory minimum term of Because Lee did not raise this argument in imprisonment for those offenses, the the District Court, we review for plain District Court did not commit plain error error. United States v. Gricco, 277 F.3d when it imposed the same concurrent 22- 339, 350 (3d Cir. 2002). month sentence on all counts. Title 26, United States Code III. Section 7206 provides that any violation For the reasons explained above, may be punished by a fine of “not more we affirm the judgment of the District than $100,000 . . . or imprison[ment for] Court. not more than 3 years.” 26 U.S.C. § 7206. Section 3D1.2 of the Sentencing Guidelines directs a sentencing court to McKee, Circuit Judge, dissenting. group “[a]ll counts involving substantially the same harm,” and Section 5G1.2(b) of the Guidelines instructs a court to apply “What a person knowingly exposes the same sentence to each count in the to the public, even in his own home or same group, unless the statutorily office, is not a subject of Fourth authorized maximum for that count is less Amendment protection.” Katz v. United than the minimum of the guideline range States, 389 U.S. 347, 351 (1967) or the statutory minimum is greater than (emphasis added). Today my colleagues the maximum of the guideline range. stretch that rule to include personal effects U.S.S.G. § 5G1.2(b) (referring to §§ that a person unknowingly exposes to the 5G1.1(a) and (b)). A t t h e s e n t e n c i n g public. Accordingly, I must respectfully hearing, the District Court determined the dissent from the majority’s rejection of offense level for Lee’s money laundering Lee’s Fourth Amendment claim. and Travel Act offenses to be 16 and the offense level for his tax convictions to be I. BACKGROUND seven. Joint App. at 3646-48. The Court The FBI rented a hotel suite for Lee did not commit plain error when it grouped in June and December of 1997. The suite these offenses. The Court proceeded to consisted of “a sitting room and identify a guideline range of 21 to 27 kitchenette, from which one could walk months, based on an offense level of 16 through a continuously open door, into a and Lee’s criminal history category of I. bedroom, which also had a bathroom in Id. at 6. The Court then imposed it.” A496-97. C. Douglas Beavers, the concurrent sentences of 22 months on all government’s cooperating witness, rented

17 the hotel suite in Lee’s name on behalf of malfunctioned and the FBI was only able the government and kept a key for himself. to monitor and record audio transmissions However, both Lee and Beavers treated the by utilizing the microphone and camera suite as if it was exclusively Lee’s hotel hidden inside Lee’s suite. The audio and room. video recordings that resulted from this surveillance constituted the primary With Beavers’ consent, the FBI evidence for the only counts on which Lee concealed a video camera and microphone was convicted. in the suite after Beavers rented it. The camera could swivel 360 degrees and The Government argues that transmit video images from the living “Beavers’ view of the room was room area and part of the bedroom area of unobstructed, and he could look around the Lee’s suite 24 hours a day. Special Agent room at will. Nothing was concealed from Reilly of the FBI monitored the hidden Beavers that was visible to the camera.” surveillance equipment from an adjacent See Appellee’s Br. at 28. However, that hotel room the government had rented for claim is not supported by this record, and that purpose. Reilly could remotely the district court did not focus on that control the camera and equipment in Lee’s aspect of Lee’s argument. Instead, it suite from her location in the adjoining found that Lee had no expectation of room. The equipment in Lee’s room privacy in his hotel suite because he continuously transmitted video and audio admitted Beavers to the room, and to the receiving equipment operated by Beavers’ presence negated Lee’s Fourth Agent Reilly although she could not Amendment expectation of privacy under receive or record those transmissions Hoffa v. United States, 385 U.S. 293 unless her equipment was turned on. (1966). A498. Agent Reilly testified without II. DISCUSSION contradiction that she did not turn her A. Katz and Hoffa equipment on or monitor any of the transmissions from Lee’s suite unless The Supreme Court first addressed Beavers was in the suite with Lee. the tension between law enforcement’s use However, the camera could scan and focus o f t e c h n o lo g y a n d th e F o u r t h on different areas of Lee’s suite whether or Amendment’s guarantee of privacy in Katz not Beavers was there. See Reply Br. at 4 v. United States. 389 U.S. 347 (1967). n.1. There, FBI agents attached an electronic device to the outside of a public telephone When Beavers visited Lee, he also booth that Katz was suspected of using for wore a “body wire” capable of sending gambling-related telephone calls. The audio transmissions to the equipment in device allowed the FBI to surreptitiously Agent Reilly’s adjoining room. However, listen to Katz’s end of telephone Beavers’ body transmitter apparently conversations. Based primarily upon

18 evidence obtained from monitoring those Wherever a man may be, he calls, Katz was subsequently convicted of is entitled to know that he using the telephone for interstate will remain free from transmission of gambling information in unreasonable searches and violation of 18 U.S.C. § 1084. Following seizures. The government his conviction, Katz appealed the trial agents here ignored the court’s denial of his motion to suppress procedure of antecedent evidence derived from the electronic justification . . . that is interception of his telephone central to the Fourth conversations. Amendment, a procedure that we hold to be a The Supreme Court concluded that constitutional precondition Katz’s expectation of privacy in the of the kind of electronic content of his calls was reasonable even surveillance involved in this though he was standing in a public case. Bec ause the telephone booth in full view of everyone surveillance here failed to passing by, and that the electronic meet that condition, and interception of his telephone calls because it led to the constituted a “seizure” under the Fourth petitioner’s conviction, the Amendment even thou gh it was judgment must be reversed. accomplished without physically invading the place where the monitoring occurred. 389 U.S. at 358-59 (internal quotation Therefore, absent exigencies that were not marks and citations omitted). present, the seizure was subject to the The majority relies upon Hoffa v. warrant requirement of the Fourth United States, 385 U.S. 293 (1966), in Amendment. The Court explained: concluding that Lee’s expectation of [B]ypassing a neutral privacy inside the intimacy of his hotel predetermination of the suite was not reasonable. However, on scope of a search leaves this record, that is an unjustified and individuals secure from unsupportable extension of Hoffa and its Fourth Amendment progeny. violations only in the The defendant in Hoffa was discretion of the police. convicted of jury tampering based These considerations do not primarily upon the testimony of Edwin vanish when the search in Partin, an official of a Teamsters Union question is transferred from local in Nashville, Tennessee, where Hoffa the setting of a home, an and other union officials were on trial for office, or a hotel room to violating the Taft-Hartley Act. During the that of a telephone booth. course of that trial, the government

19 became concerned that Hoffa and his co- . . The Fourth Amendment defendants might attempt to bribe some of can certainly be violated by the jurors. Unbeknownst to Hoffa, the guileful . . . intrusions into a government recruited Partin to gather constitutionally protected evidence of jury tampering. Partin was area. . . . And the able to visit Hoffa’s hotel suite and Hoffa protections of the Fourth spoke freely of attempting to bribe jurors Amendment are surely not in his presence. Hoffa’s trial for Taft- limited to tangibles, but can Hartley violations ended with a hung jury, extend as well to oral but Hoffa was thereafter convicted of jury statements. tampering based largely on Partin’s testimony about statements Hoffa had made in his hotel suite.11 Hoffa appealed Id. at 301. The Court explained: arguing in part that Partin’s testimony The Fourth Amendment should have been suppressed because it protects . . . the security a was obtained in violation of the Fourth man relies upon when he Amendment. Hoffa argued that Partin’s places himself or his failure to disclose that he was “a property within a government informer vitiated the consent constitutionally protected that [Hoffa] gave to Partin’s repeated area, be it his home or his entries into the [hotel] suite, and that by office, his hotel room or his listening to [Hoffa’s] statements Partin automobile. There he is conducted an illegal ‘search’ for verbal protected from unwarranted evidence.” 385 U.S. at 300. governmental intrusion. The Hoffa Court began its analysis And when he puts by conceding that the legal predicate of something in his filing Hoffa’s argument rested on solid ground. cabinet, in his desk drawer, or in his pocket, he has the right to know it will be A hotel room can clearly be secure from an unreasonable the obje ct of Fou rth search or an unreasonable Amendment protection as seizure. much as a home or office. .

Id. (footnote omitted). However, the Court 11 The government’s evidence at the rejected the balance of Hoffa’s argument jury tampering trial consisted primarily of because Hoffa’s disclosures resulted from Partin’s testimony about statements he his relationship with Partin, not any heard Hoffa make while in Hoffa’s hotel reliance on the privacy of his hotel suite. room during the first trial.

20 Thus, there was no reasonable expectation reasonable expectation of privacy and Katz of privacy in the contents of the statements becomes irrelevant. I disagree. made to Partin, and no Fourth Amendment Hoffa teaches that one’s expectation privacy interest prevented Partin from of privacy is compromised, and therefore testifying about Hoffa’s “confidential” unreasonable, to the extent that he or she statements. The Court explained: confides in a confederate because the It is obvious that [Hoffa] speaker is assuming the risk that the was not relying on the confederate may subsequently betray the security of his hotel suite speaker’s trust and repeat anything when he made the communicated in “private.” The same incriminating statements to logic dictates that one has no reasonable Partin or in P artin’s expectation in the privacy of anything presence. Partin did not he/she knowingly allows the confederate to enter the suite by force or by see in the presumed privacy of a home or stealth. He was not a hotel room, or elsewhere.12 As noted surreptitious eavesdropper. above, the government concealed a Partin was in the suite by microphone and video camera in the sitting i n v i t a t i o n , a n d e v e ry room area inside Lee’s hotel suite. From conversation which he heard that vantage point, the government was was either directed to him or capable of monitoring Lee’s activity inside knowingly carried on in his his suite 24 hours a day by way of audio presence. The petitioner, in and video transmissions to Agent Reilly in a word, was not relying on the adjoining room. the security of the hotel The government maintains that it room; he was relying upon took steps to insure Lee’s privacy and to his misplaced confidence guarantee that its actions were consistent that Partin would not reveal with the pronouncements in Hoffa. It his wrongdoing. argues that Agent Reilly did not start monitoring the transmissions from Lee’s suite until Beavers arrived, that she turned Id. at 302. The same is true here, but only to a point, and it is this limitation that the 12 This has been referred to as the majority ignores in allowing Hoffa to “invited informant” doctrine. See, e.g., swallow Katz on this record, and gulp United States v. Nerber, 222 F.3d 597, 605 down the Fourth Amendment in the n.10 (9th Cir. 2000). For convenience, I process. Under the majority’s Hoffa will use that phrase throughout my analysis, once Lee allowed Beavers to discussion. enter the suite, Lee no longer had a

21 the equipment off when Beavers left, and conversations in the public telephone that she did not turn it on in Beavers’ booth. The Court reasoned: absence. My colleagues conclude that this [T]he inescapable fact is restraint was consistent with Lee’s that this restraint was expectation of privacy under Hoffa, and imposed by the agents therefore no Fourth Amendment violation themselves, not by a judicial occurred. In doing so, my colleagues officer. They were not ignore the fact that the Court in Katz required, before rejected that very argument. commencing the search, to The Court in Katz began its analysis present their estimate of by noting the restrained manner in which probable cause for detached the government had obtained the evidence scrutin y to a neutra l there. magistrate. They were not compelled, during the [T]he surveillance was conduct of the search itself, limited, both in scope and in to observe precise limits duration, to the specific established in advance by a purpose of establishing the specific court order. Nor contents of petitioner’s were they directed, after the u n la w fu l t e l e p h o n ic search had been completed, com munications. The to notify the authoring agen ts confined the magistrate in detail of all surveillance to the brief that had been seized. In the periods during which he absence of such safeguards, used the telephone booth this Court has never and they took great care to sustained a search upon the overhear only the sole ground that officers c o n v e r s a ti o n s o f th e reasonably expected to find petitioner himself. evidence of a particular crim e and volun tarily confined their activities to 389 U.S. at 354 (footnotes omitted). the least intrusive means Accordingly, there, as here, the actual consistent with that end. surveillance had been conducted “in an entirely defensible manner[.]” Id. There, as here, “[i]t [was] apparent that the agents Id. at 356-57 (emphasis added). . . . acted with restraint” Id. at 356. Nevertheless, the Court concluded that this Accordingly, I fail to see the self-imposed restraint could not legitimize significance of the government’s self- the warrantless seizure of Katz’s imposed restraint here. Despite those self-

22 imposed limitations, the fact remains that The government attempts to negate Agent Reilly had the ability to manipulate the reasonableness of Lee’s expectation of a video camera to see and hear practically privacy by suggesting that, since Lee knew everything that Lee did in the privacy of Beavers paid for the room and retained a his hotel suite throughout the day and key, “Lee’s expectation of privacy in the night. The limitations of that Orwellian room was relatively diminished.” capability were not subject to any court Appellee’s Br. at 21. However, as noted order. Rather, they were defined by the above, both parties regarded the suite as curiosity and scruples of a single agent. Lee’s and the government does not That is simply not adequate given the seriously argue to the contrary. Everyone importance of Fourth Amendment involved apparently knew that Lee was to guarantees. remain in the suite overnight, and there is nothing to suggest that anyone ever If subjective good faith expected Beavers to remain in the suite for alone were the test, the any length of time. “From the overnight protections of the Fourth guest’s perspective,” the expectation of Amendment would privacy in a hotel room is entitled to the evaporate, and the people same respect as afforded one’s actual would be secure in their home under the Fourth Amendment. persons, houses, papers and Minnesota v. Olson, 495 U.S. 91, 99 e f f e c t s , o n l y i n th e (1990). Thus, “[n]o less than a tenant of a discretion of the police. house, or an occupant of a room in a boarding house, . . . a guest in a hotel room is entitled to constitutional protection Terry v. Ohio, 392 U.S. 1, 22 (1068) against unreason able searches and (internal quotation marks and citation seizures.” Stoner v. California, 376 U.S. omitted). 483, 490 (1964). Moreover, the agents in Katz did Accordingly, the fact that Beavers not even initiate their electronic rented the suite for Lee and retained a key monitoring “until investigation of the to Lee’s suite before surrendering [defendant’s] activities established a possession to Lee for the latter’s sole strong probability that he was using the occupancy is little more than a technicality telephone in question [for interstate of convenience that the government gambling purposes].” 389 U.S. at 354. devised to fortify this intrusion against the Here, there is no such representation. In expected suppression motion. It is entitled fact, it is clear that Lee was not using the to no more consideration than that. hotel suite for illegal purposes before the government installed microphones and [I]t is unnecessary and ill- cameras there and arranged for him to advised to import into the occupy it. l a w surrounding th e

23 constitutional right to invitation, and every conversation which be free from he heard was either directed to him or unreasonable knowingly carried on in his presence.” Id. searches and seizures subtle distinctions, It is now clear that the Fourth developed and Amendment does not protec t “a r e f i n ed by th e wrongdoer’s misplaced belief that a person common l aw in to whom he voluntarily confides his evolving the body of wrongdoing will not reveal it.” Id. private property law How ever, this means that Lee’s which, more than e xpe c ta t i o n o f p r i v a cy is o n ly almost any other unreasonable insofar as he actually made branch of law, has statements in Beavers’ presence, or been shaped b y allowed Beavers to see the effects inside distinctions whose his suite. It does not mean that Lee’s validity is largely expectation of privacy in things beyond historical. (W)e Beavers’ earshot or line of sight was ought not to bow to unreasonable. Indeed, that expectation them in the fair remained reasonable and should be administration of the protected under the Fourth Amendment. criminal law. However, the concealed camera was capable of sweeping the hotel suite at Id. at 488. To the extent the Fourth a 360-degree angle, thereby displaying for Amendment has any vitality in an era of the FBI all of Lee’s effects inside the suite increasingly sophisticated electronic whether or not Beavers would have been eavesdropping, it surely protects the able to see them. Neither Hoffa nor any privacy of someone in the intimacy of a other legal precedent supports such an hotel suite from the potential of abrogation of the fundamental right of warrantless 24-hour video surveillance. privacy. As noted above, the majority B. Lee’s Right of Privacy concludes that the Supreme Court’s The Fourth Amendment states that analysis in Hoffa negates Lee’s claim of “[t]he right of the people to be secure in privacy. Lee, like Hoffa, “was not relying their persons, houses, papers, and effects, on the security of his hotel suite when he against unreasonable searches and made incriminating statements to seizures, shall not be violated. . . .” U.S. [Beavers] or in [Beavers’] presence.” C ONST. Amend. IV. At the very core of Hoffa, 385 U.S. at 302. Beavers, like the the Fourth Amendment “stands the right of confederate in Hoffa, “was in the suite by a [person] to retreat into [his or her] own

24 home and there be free from unreasonable Katz, 389 U.S. 347). governmental intrusion.” Silverman v. C. Video Surveillance Under Hoffa United States, 365 U.S. 505, 511 (1961). In United States v. Felton, 753 F.2d It has often been said that “the 256 (3d Cir. 1985), we explained the Fourth Amendment protects people, not invited informant rule in the context of a places.” Katz, 389 U.S. at 351. However, monitored telephone conversation. There, my colleagues appear to assume that since we stated: Lee admitted Beavers to his suite (the place), Lee (the person) lost all Insofar as the Fourth constitutional protection. That conclusion Amendment is concerned, would be warranted if Lee had allowed one party to a telephone Beavers’ unlimited access to everything conversation assumes the that was within the 360-degree field of risks that the other party (a) vision of the video camera. However, will permit a third party to despite its assertion to the contrary, the eavesdrop on an extension government has not established that he did. telephone, for the purpose “[T]he capacity to claim the protection of of communicating what he the Fourth Amendment depends . . . upon heard to the police, or (b) whether [Lee] has a legitimate expectation may be a police informer of privacy” in those portions of his hotel who will relate or record or room that were beyond the gaze of transmit a conversation to Beavers. Minnesota v. Olson, 495 U.S. 91, the authorities, or (c) may 95 (1990) (ellipsis in original; internal record the conversation and citation and quotation marks omitted). deliberately turn it over. Unlike my colleagues, I conclude that Lee’s expectation of privacy in Id. at 260. We then stated: “the anything inside the suite that he did not expectation of privacy is not measured by knowingly let Beavers see was reasonable, what takes place during or after the and entitled to Fourth Amendment conversation, it is measured by what is protection. expected before the conversation begins.” Moreover, the government was able Id. As then-Chief Judge Aldisert so to peer into Lee’s hotel room even after plainly explained, “[w]hen you pick up Beavers left. “When [the informant] that phone and talk, you can’t trust leaves [the] premises, [the subject] is left nobody, nohow, nowhere!” Id. with the expectation of privacy in his Hoffa’s reliance on the Court’s surroundings which is not only actual but earlier decision in Lopez v. United States, justifiable. . . .” United States v. Padilla, 373 U.S. 427 (1963) clearly demonstrates 520 F.2d 526, 527 (1st Cir. 1975) (citing this. Lopez is even more relevant to Lee’s

25 claim here because in Lopez, unlike in farther and substitute its own electronically Katz, the government concealed a enhanced senses for the mortal senses of transmitter and recorder on a government the informant. Putting aside for a moment agent. That agent then interviewed the the ability to monitor Lee’s suite when defendant in the latter’s office after being Beavers left, absent a showing that invited in. The defendant was convicted Beavers and Agent Reilly were limited to of offering the agent a bribe based on the identical observations while Beavers was ensuing conversation, and thereafter in Lee’s suite, the g overnment’s argued that the trial court had erred in surveillance simply goes too far. The refusing to suppress recordings of problem is only exacerbated by the fact conversations with the agent. The Lopez that Agent Reilly had the capability of Court began by noting that “it [was] plain monitoring Lee at all hours of the day and that [the agent] could properly testify night even though Beavers was not in the about his conversation with Lopez;” thus, suite. As noted above, it is clear under “the constitutional claim relating to the Katz that the fact that Agent Reilly did not recording of that conversation emerge[d] peek is not relevant to this invasion of in proper perspective.” 373 U.S. at 438. Lee’s privacy under the Fou rth The Court concluded that the recordings Amendment. were properly admitted at trial because My colleagues note that they “are “[t]he Government did not use an satisfied that the tapes [here] do not depict electronic device to listen in on anything material that Beavers himself was conversations it could not otherwise have not in a position to hear or see while in the heard.” Rather, “the device was used only room.” Maj. Op. at 13. Again, putting to obtain the most reliable evidence aside the intrusion that occurred when possible of a conversation in which the Beavers was not even in the suite, I must Government’s own agent was a participant still respectfully disagree with the and which that agent was fully entitled to majority’s analysis. T h e g o v e r n m e n t disclose.” Id.13 However, neither Lopez concedes that the camera continued to nor Hoffa allow the government to go transmit video surveillance of Lee’s room on occasion when Beavers left Lee’s presence to go to the bathroom, and there 13 The Court likened Lopez’ is no showing that, in Beavers’ absence, position to an argument that he had “a Agent Reilly could only see objects that constitutional right to rely on possible Beavers had already seen, or would see flaws in the agent’s memory, or to when he returned to the sitting area where challenge the agent’s credibility without Lee remained. Similarly, there has been being beset by corroborating evidence that absolutely no finding here that Agent is not susceptible to impeachment.” Lopez, Reilly was only able to see what Lee 373 U.S. at 439. That position was, of knowingly allowed Beavers to see while course, untenable.

26 Beavers was in Lee’s presence. Despite its quoted Judge Kozinski’s concurring claim that Reilly only saw what Beavers opinion in United States v. Koyomejia, 970 saw, the government concedes that any F.2d 536, 551 (9th Cir. 1992). There, such limitation on its surveillance would Judge Kozinski stated: “every court be extremely impractical if not impossible. considering the issue has noted [that] video surveillance can re sult in D. Audio Surveillance Is extraordinarily serious intrusions into Dis tingu ishab le F r om Video personal privacy. . . .” Surveillance This distinction between video and My colleagues concede that video audio surveillance is dismissed by my surveillance “may involve a greater colleagues. They conclude that “[t]he intrusion on privacy than audio difference is not nearly as great as the surveillance.” Id. at 10-11. Indeed, they difference between testimony about a could hardly do otherwise. As the Court conversation and audio recordings of of Appeals for the Ninth Circuit has conversation.” Maj. Op. at 11. My observed, in the case of video surveillance: colleagues then correctly note that “the [t]he governmental intrusion Supreme Court has not drawn any [is] severe. Hidden video distinction between those two types of surveillance is one of the evidence,” and they therefore find “no most intrusive investigative cons titutionally releva nt distinc tion mechanisms available to law between audio and video surveillance in enforcement. . . . [W]e the present context.” Id. I must again [have] pointed out . . . [that] respectfully disagree.14 the defendant ha[s] a The government correctly states reasonable expectation to be that it would be extremely impractical to free from hidden video create a situation where the camera’s view surveillance because the would be limited to the view of an video search was directed straight at him, rather than being a search of property 14 he did not own or control .... The majority does not state [and] the silent, unblinking whether the Supreme Court has been lens of the camera was called upon to decide if there is a intrusive in a way that no distinction between video and audio temporary search of the surveillance under the Fourth Amendment. office could have been. My research did not reveal any such case. Therefore, the Supreme Court’s failure to draw a distinction is irrelevant. The Court United States v. Nerber, 222 F.3d 597, has never been presented with the 603 (9th Cir. 2000). The court in Nerber question.

27 informant. We all know that we can not such factors as the sensitivity of the see around corners although we can hear microphone, transmitting and receiving around corners. Everyday experience equipment, as well as the presence of any teaches enough physics to know that electronic interference in Lee’s room or observers with different lines of sight will Reilly’s.15 Nevertheless, since no court have different fields of vision and has yet addressed the impact of such therefore see different things or the same variables as the sensitivity of the thing from different angles. One need not equipment on an invited informant study Gestalt theory to appreciate that two analysis under Hoffa, I will assume observers who see the same object from arguendo that Agent Reilly could only different angles may “see” two entirely hear what Beavers heard. However, as I different objects. The observer at point A have explained, the same can not be said in a given space may not see the same of the video transmission. This distinction thing as an observer at point B in the same between audio transmissions and video space. Moreover, no two observers can transmissions is crucial to any analysis possibly occupy the exact same space at under Hoffa and its progeny if the Fourth the same time, and the extent to which Amendment is to withstand the increasing their observations may differ increases sophistication of electronic surveillance with the distance between the two equipment. observers as well as the increase in the The government argues that unless angle formed by their location and the we ignore this technicality “video location of the objects they are observing. surveillance would be limited to The amount of discrepancy in their circumstances where an informant is observations may also depend on the wearing eyeglasses containing mini-video presence of objects in the space between recorders[,]” and the government them and the object they are viewing. emphasizes that “[s]uch a requirement is There is nothing on this record to support impractical.” Appellee’s Br. at 28. a conclusion that Agent Reilly could only However, we can not condone a see what Beavers could see at any given constitutional violation merely because instance and I think it fair to say that complying with the Constitution would be proposition is a virtual impossibility given “impractical.” Nor is the government’s the configuration of the usual hotel suite, sarcastic observation that it “is unaware of the number of objects inside it, and the fact the existence of such James Bond-like that Beavers and the video camera could gadgets[,]” id., a satisfactory reply. If the not possibly have been looking at any given object from exactly the same place. 15 See The Physics of Sound, However, Agent Reilly may well http://interface.cipic.ucdavis.edu/CIL_tut have been only able to hear the same orial/3D_phys/3D_phys.htm (viewed on sounds that Beavers heard depending on Jan. 22, 2004).

28 government wishes to engage in this kind could capture (albeit at a different angle).” of invasive surveillance it need only visit Appellee’s Br. at 20. As noted above, the a neutral magistrate; it need not impose majority accepts this premise, stating that upon “Q.” 16 it is “satisfied that the tapes do not depict anything material that Beavers himself Things that Lee did not knowingly was not in a position to hear or see while disclose to Beavers remain within Lee’s in the room. . . .” Maj. Op. at 13 (emphasis expectation of privacy so long as that added). However, that is supported only expectation is reasonable, and society is by the government’s unsuppo rted willing to accept the expectation as such. assertion. The district court never found “The test of legitimacy is not whether the that the camera’s transmissions were no individual chooses to conceal assertedly greater than Beavers’ observations. In ‘private’ activity, but w hether the fact, the district court found this was government’s intrusion infringes upon the specifically not the case; it noted that personal and societal values protected by “[t]here were instances . . . where the Amendment.” Oliver v. United States, perfection was not achieved” such as when 466 U.S. 170, 182-83 (1984).17 Agent Reilly monitored the sitting room The government maintains that “no while Beavers visited the bathroom. A497. part of the meeting rooms was obstructed The district court dismissed this from Beavers’ line of sight, and thus, “imperfection” stating: “[t]he brief Beavers could see whatever the camera exceptions do not warrant suppression of any or all of the evidence taken on that 16 ground,” and the court noted the Those familiar with the James government’s offer to edit out the images Bond series will recognize “Q” as the recorded while Beavers was in the bureau chief charged with outfitting Bond bathroom. A498. However, the right of with all kinds of unimaginable gadgets. privacy can not be quantified in this 17 manner. . “Since Katz v. United States, 389 U.S. 347 (1967), the touchstone of As the Court explained in Kyllo v. [Fourth] Amendment analysis has been the United States, 533 U.S. 27, 37 (2001), question whether a person has a “[i]n the home, our cases show, all details constitutionally protected reasonable are intimate details, because the entire area expectation of privacy. The Amendment is held safe from prying government eyes.” does not protect the merely subjective Thus, everything and anything inside Lee’s expectation of privacy, but only those hotel suite was an intimate detail meriting expectations that society is prepared to Fourth Amendment protection to the recognize as reasonable.” Oliver v. United extent that Lee did not knowingly allow States, 466 U.S. 170, 177 (1984) (internal Beavers to see it. All such details “were citations, quotation marks and parentheses intimate details because they were details omitted).

29 of the home. . . .” Id. at 38. “It matters not Lee’s motion to suppress the video that the search uncovered nothing of any tapes should have been granted not great personal value to [Lee] . . . A search because of the materiality of evidence that is a search, even if it happens to discloses the governmental intrusion disclosed, but nothing [of value].” Arizona v. Hicks, 480 simply because the government’s actions U.S. 321, 325 (1987). violated Lee’s reasonable expectation of privacy in his hotel suite. The district court’s minimization of the “imperfection” that occurred, and the E. Bond v. United States majority’s failure to insure that Agent Although the case arises in a very Reilly could see nothing more than different context, Bond v. United States, Beavers could see, undermines their entire 529 U.S. 334 (2000), demonstrates the analysis of Lee’s Fourth Amendment extent to which society recognizes the claim. The problem is that Lee’s reasonableness of a residuum of privacy reasonable expectation of privacy was even when some privacy has been violated, not that the violation may not surrendered. The defendant there sought have revealed anything that was “material” to suppress evidence obtained when his or of evidentiary significance. “The carry-on luggage was searched by Border Fourth Amendment’s protection of the Patrol Agents who had boarded a bus in home has never been tied to measurement Texas to check on the immigration status of the quality or quantity of information of passengers. As an agent walked obtained.” Kyllo, 533 U.S. at 38. Thus, through the bus he squeezed the soft “any physical invasion of the structure of luggage which passengers had placed in an the home, ‘by even a fraction of an inch,’ overhead storage space. Upon squeezing [is] too much.” Id. at 37 (quoting U.S. v the defendant’s bag the agent felt a “brick- Silverman, 365 U.S. at 512). 18 like” object, which the agent assumed to be drugs. That search resulted in a 18 warrantless seizure of drugs inside the The Court also noted in Kyllo that defendant’s bag. The defendant moved to “any information regarding the interior of suppress the evidence. The government the home that could not otherwise have argued that the defendant could not have a been obtained without physical ‘intrusion reasonable expectation of privacy in into a constitutionally protected area’. . . luggage in an overhead compartment on a constitutes a search.” 533 U.S. at 34. bus because “matters open to public Thus, a search of Lee’s suite occurred to the extent that Agent Reilly was able to see anything that Beavers was unable to see, notwithstanding the application of the remained behind. See Katz, 389 U.S. at invited informant doctrine. Obviously, an 356 (as noted above, the “restraint was even greater intrusion occurred once imposed by the agents themselves, not by Beavers left and the government’s camera a judicial officer.”).

30 observation are not protected by the Fourth the Seventh Circuit has explained, Amendment.” 529 U.S. at 337. The Court “[e]lectronic interception, being by nature concluded that, although bus passengers a continuing rather than one shot invasion, expect that their bags may be handled, they is even less discriminating than a physical do not expect that “other passengers or bus search, because it picks up private employees will, as a matter of course, feel conversations. . . over a long period of the bag in an exploratory manner.” Id. at time.” United States v. Torres, 751 F.2d 338-39. Accordingly, although the actual 875, 884 (7th Cir. 1984). This situation is observation of the defendant’s bag in the exponentially exacerbated where, as here, overhead luggage compartment was not the government’s ability to see intimate protected by the Fourth Amendment, details of a defendant’s daily activities as contents which could only be revealed by he/she goes about his/her business in the manipulation of the bag were subject to a presumed intimacy of a hotel suite depends reasonable expectation of privacy. This solely on the discre tion of the was true even though police only unsupervised agent controlling the manipulated the outside of the bag while it monitoring equipment. remained in place in the luggage rack. [A]lthough we may spend Although Bond’s carry-on luggage “was all day in public places, not part of his person,” the Court was when we cannot sleep in our concerned that carry-on luggage is own home we seek out generally used to transport “personal items another private place to that, for whatever reason, [individuals] sleep, whether it be a hotel prefer to keep close at hand.” Id. at 338. room, or the home of a Accordingly, the Court recognized the friend. Society expects at defendant’s expectation of privacy in the least as much privacy in contents of the bag was reasonable.19 these places as in a In referring to electronic te lephone booth – a interception of telephone conversations, temporarily private place whose momentary occupants’ expectations of 19 Although Bond involves the freedom from intrusion are “plain view” doctrine, not the “invited recognized as reasonable. . . informant” doctrine of Hoffa, it is . nevertheless instructive as it clearly supports the conclusion that Lee’s expectation of privacy in the contents of Minnesota v. Olson, 495 U.S. 91, 99 his hotel room was reasonable to the (1990) (internal citation and quotation extent that he did not allow Beavers to see marks omitted). his effects. Absent a pronouncement from the

31 Supreme Court, or controlling precedent Yonn does not involve video surveillance from this court, I simply can not accept the and is therefore of extremely limited value idea that a society that defines privacy as a to the discussion here for all the reasons I fundamental freedom can tolerate the have explained. Myers is also of very warrantless intrusion that occurred here.20 l i m it e d a p p l i ca tion be caus e th e conversations there were not recorded in Myers’ hotel room, nor was he an F. Myers, Yonn and Padilla overnight guest in the room where the In affirming the district court, the conversations were recorded. majority adopts the analysis in United Myers went to a townhouse to meet States v. Myers, 692 F.2d 823 (2d Cir. with individuals who turned out to be 1982) and United States v. Yonn, 702 F.2d government agents. The court’s analysis 1341 (11th Cir. 1983) and rejects the of Myers’ privacy interest consumes only analysis of the Court of Appeals for the a single sentence in the lengthy opinion. First Circuit in United States v. Padilla, The court states: “[the defendant]’s 520 F.2d 526 (1st Cir. 1975). However, conversations with undercover agents in whom he chose to confide were not privileged, and mechanical recordings of 20 I can not help but wonder if my the sights and sounds to which the agents colleagues would be as complacent about could have testified were proper this situation if presented with a male evidence.” 692 F.2d at 859. The court agent capable of remotely viewing a then cites to United States v. White, 401 female suspect in her hotel suite at any U.S. 745 (1971). hour of the day or night with only self- White involved a defendant who imposed limitations shielding the female was convicted based upon evidence police suspect from the wandering eye of the obtained by using a “radio transmitter” to male agent. Clearly, given the analysis of transmit and secretly record incriminating my colleagues that situation would not conversations between the defendant and violate the female suspect’s privacy as the government informant. Inasmuch as long as, at some point in the day, she White involved audio transmissions rather allowed an informant to enter the sitting than video transmissions, and the Myers area of her hotel suite. Court failed to discuss why the video I admit that realistic considerations transmissions had no more impact on a of taste as well as concerns over a jury’s subject’s privacy than the audio reaction to such an intrusion may preclude transmissions in White, I am remain that situation from ever occurring. But unpersuaded. Katz seeks to insure that privacy protections be rooted in stronger stuff than On the other hand, Padilla involved the judgment of a given agent or concerns video surveillance inside a residence and is about trial tactics.

32 much closer to the situation here, but the retained a privacy interest, no Fourth court’s analysis reads as though partly Amendment violation occurred.” 326 F.3d influenced by a concern for the potential at 366. As I note above, no such showing abuses of emerging surveilla nce has been made here, and the district court technology. My colleagues criticize those found to the contrary on at least two concerns noting: “Although Padilla was occasions when Beavers was in the suite. decided more than a quarter century ago Yet the court in Davis was careful to limit and has not been followed in any other is holding to only those things that the circuit, we are not aware of evidence that informer could see w hile in the the installation of recording devices to defendan t’s presence. The court monitor mee tin gs atten de d b y a specifically stated: “We . . . extend the rule cooperating individual has led to the sort of White and Lopez to video recordings of abuse that the Padilla Court feared.” that capture images visible to the Maj. Op. at 12. There are several reasons consensual visitor. . . .” Id. at 363. why that criticism is less than convincing. G. Dangers Inherent in Warrantless Initially, I note that the issue of Video Surveillance whether this technology has been abused Although sensory enhancement has was never raised here and there is not displaced the guarantees of the Fourth absolutely no record one way or the other Amendment, “[i]t would be foolish to as to the extent of government any abuses contend that the degree of privacy secured of sophisticated surveillance technology. to citizens by the Fourth Amendment has In addition, very few cases have addressed been entirely unaffected by the advance of the problem of video surveillance technology.” Kyllo, 533 U.S. 27, 33-34 involving an invited informant. In one that (2001). However, given the evolving has, a miniature camera was carried in the sophistication of technology, it is informant’s jacket and transmitted video inc r e asingly i m p erative th at th e images to a nearby agent. See United fundamental liberties guaranteed under the States v. Davis, 326 F.3d 361, 363 (2d Cir. Fourth Amendment not be eroded by the 2003). 1 3 The court rejected the warrantless use of devices that allow the defendant’s Fourth Amendment argument government to see through curtains, walls stating: “[b]ecause the hidden camera did and doors. not capture any areas in which Davis In Kyllo, the Court addressed the tension between law enforcement’s 13 Since the camera was in the innovative use of technology, and the right informant’s jacket, there is a stronger basis to privacy. The Court stated: to assume that the informant’s field of While it may be difficult to vision closely approximated that of the refine Katz when the search monitoring agent than exists on this of areas such as telephone record.

33 booths, automobiles, increasingly sophisticated technology. In or even the curtilage doing so, the Court expressed concerns and uncovered very similar to the concerns in Padilla that portio ns of my colleagues dismiss. Writing for the residences is at issue, Court, Justice Scalia states: “[r]eversing in the case of the [the approach outlined in Katz] would search of the interior leave the homeowner at the mercy of of homes . . . there is advancing technology . . . that could a ready criterion, discern all human activity in the home.” with roots deep in 533 U.S. at 35-36. The Court also the common law, of mentioned that “[t]he ability to ‘see’ the minimal through walls and other opaque barriers is e x p e c t a ti o n o f a clear, and scientifically feasible, goal of privacy that exists, l a w enforcement rese arch an d and that is development.” Id. at 36 n.3 (citing The acknowledged to be N a t i o n a l L a w E n f o r c e m e n t a nd reasonable. To Corrections Technology Center website, withdraw protection www.nlectc.org/techproj/, as visited on of this minimum May 3, 2001). expectation would be In Silverman, the Court also to perm it police mentions electronic devices that, according technology to erode to the defendant there, warranted revisiting the privacy prior cases including Katz. The Court guaranteed by the explains its refusal to do so as follows: Fourth Amendment. We are told that re- examination of the rationale of those cases . . . is now 533 U.S. at 34 (emphasis in original). 14 essential in the light of recent and pro jecte d The Court was careful to reaffirm developments in the science Katz in the face of challenges presented by of electronics. We are f a vor e d (sic) w ith a 14 description of a device Although the Court there focused known as the parabolic on “the interior of homes,” I have already microphone which can pick explained that no distinction can be drawn up a conversation three for our purposes between homes, and the hundred yards away. We interior of Lee’s hotel suite, Olson, 495 are told of a still U.S. at 99, and the majority does not experi me ntal technique suggest the contrary.

34 whereby a room is At the risk of appearing alarmist, I flooded with a think it important to note that, in rejecting certain type of sonic defendant’s invitation to reexamine Court wave, which, when precedent because of the evolving perfected, will make technology, the Court explained: “We need it possible to not here contemplate the Fou rth overhear everything Amendment implications of these and said in a room other frightening paraphernalia which the without ever entering vaunted marvels of an electronic age may it or even going near visit upon human society.” 365 U.S. at it. We are informed 509. of an instrument The majority lists three reasons for which can pick up a rejecting the concerns reflected in Padilla conversation through and doubting that “law enforcement [is] an open offic e likely to find” abuse of technology “an window on th e alluring strategy.” Maj. Op. at 12. My opposite side of a colleagues rely upon the possibility of a busy street. civil penalty under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 Silverman, 365 U.S. at 508 (internal quotation marks and citation omitted). 15 situation here not only because it involves only audio monitoring, but also because the Court’s ruling was based on the fact 15 In Silverman, the owner of a that the defendant did not consent to the vacant hou se had granted p olice intrusion that resulted from the spike mike permission to use that property to conduct contacting the heating duct in his property. a surveillance of an attached property “[T]he officers overheard the petitioners’ whe re police suspected ga mb ling conversations only by usurping part of the operations were being conducted. They petitioners’ house or office – a heating conducted the surveillance by means of a system which was an integral part of the long “spike microphone” which they premises occupied by the petitioners, a passed through the properties’ joint wall usurpation that was effected without their until it made contact with a heating duct in knowledge and without their consent.” Id. the target property. That “duct became in at 511. Here, Beavers’ consent to the effect a giant microphone, running though placing of the camera limits Silverman’s the entire house occupied by appellants.” applicability. However, as explained 365 U.S at 506-07 (internal citation above, there remains an issue of Lee’s omitted). reasonable expectation of privacy under The case is distinguishable from the Hoffa and its progeny.

35 (1971), the need to acquire a warrant or warrant was never even discussed with permission of a cooperating individual to Agent Reilly. Moreover, Lee clearly did enter the premises to install a monitoring not consent to the FBI installing a camera device, and skepticism th at law that could potentially broadcast some enforcement has anything to gain because images of his bedroom and bathroom “[a] video tape . . . generally reveals activities throughout the day and night. As whether a cooperating individual is explained above, we can not rely upon present, and without proof of the presence technicalities of consent as found in of the cooperating individual, the tape is property law to stretch Beavers’ consent inadmissible.” Maj. Op. at 13. that far. See Stoner v. California, 376 U.S. 483, 489 (1964). Thus, I do not think the I must respectfully characterize the legal analysis in Padilla can be dismissed majority’s trivialization of the potential for because the opinion might be construed as abuse as naive. Operation of the “alarmist.” Rather, the court there technology mentioned in Silverman and expressed the very concerns the Fourth Kyllo requires neither entry nor permission Amendment was intended to protect; to enter an area of expected privacy. In concerns that the Supreme Court also Kyllo, Justice Scalia mentions several expressed in Silverman and Kyllo. technological innovations that require neither physical entry nor consent. These The majority does concede that it is “include a ‘Radar-Based Through-the- not willing to go “so far as to say that there Wall Surveillance System,’ ‘Handheld is no risk of the type of abuse that worried U ltrasound Through the Wall the Padilla Court,” but concludes that “the Surveillance,’ and a ‘Radar Flashlight’ that risk is not great enough to justify the ‘will enable law enforcement officers to holding of the Padilla Court.” Maj. Op. at detect individuals through interior building 13. However, the holding in Padilla rests walls.’” 533 U.S. at 36 n.3. not upon the risks the court properly identified, but on a proper reading of In addition, though my colleagues Supreme Court precedent. The court contend that, absent consent, the warrant explained: “We do not read either White or requirement can be relied upon to prevent its predecessors, Katz v. United States, and abuse of such technology, the facts before Hoffa v. United States, to go farther than to us should readily dispose of that notion. It say that a person has no justifiable is clear that none of the agents involved in expectation that one with whom he monitoring Lee’s hotel suite decided to err converses will not tell the authorities of the on the side of caution and obtain a warrant conversation, and that accurate recordings prior to installing a video camera that of the conversation are therefore could transmit video of his living area, as permissible.” 520 F. 2d 526, 527 (citations well as parts of the bedroom and bathroom omitted). See also United States v. throughout the day and night. In fact, the Shabazz, 883 F. Supp. 422 (D. Minn. record shows that the possibility of a

36 1995) (relying upon Padilla to suppress individual is present, and “without proof audio a n d v i d e o r e co r d i n g s of of the presence of the cooperating conversations in the defendant’s hotel individual, the tape is inadmissible.” Maj. room). Op. at 13. However, that misses the point on several fronts as I have already M y coll e a g u e s ’ r e m a i n ing explained. The informant’s presence does justifications for dismissing the concerns not guarantee that he/she sees the same expressed in Padilla are eq ually thing that the government transmits and unpersuasive. The “remedy” of a Bivens records and it is therefore not tantamount action is often no remedy at all. The to consent. More importantly, however, as Fourth Amendment is intended to afford a the Court clearly noted in Kyllo, it is the right of privacy, not to compensate intrusion, not the evidence that is the individuals whose privacy has been problem. The suppression of the evidence violated. Moreover, limitations that arise is only important because of its impact on under the doctrine of qualified immunity police behavior. 17 may make it exceedingly difficult to establish the predicate showing of III. Conclusion unreasonableness required to sustain an The Constitution’s primary bulwark action under Bivens. where the alleged against arbitrary intrusions into our privacy transgression involves the innovative is the warrant requirement of the Fourth application of new technology. See 16 Amendment. “The [Fourth Amendment] Saucier v. Katz, 533 U.S. 194 (2001). reflects the recognition of the Framers that Lastly, my colleagues doubt that certain enclaves should be free from “law enforcement would have much to arbitrary government interference.” Oliver gain from monitoring conversations that v. United States, 466 U.S. 170, 178 (1984). occur when a cooperating individual is not present. A video tape of a conversation The presence of a search generally reveals whether a cooperating warrant serves a high function. Absent some grave emergency, the Fourth 16 Under Saucier, a Bivens plaintiff Amendment has interposed must first establish that legal requirements a magistrate between the in a given situation would have been clear citizen and the police. This to a reasonable officer. Bennett v. Murphy, was done not to shield 274 F.3d 133, 136-37 (3d Cir. 2001). The criminals nor to make the speed of technology’s advance will often make that an insurmountable hurdle to a 17 B i v e ns plaintiff challengin g th e For a general discussion of the government’s warrantless use of a new purposes of the exclusionary rule, see technology. Terry v. Ohio, 392 U.S. 1, 13 (1968).

37 home a safe haven constitutional.” Kyllo, 533 U.S. at 39 for illegal activities. (internal quotation marks omitted). “[A] It was done so that search which is reasonable at its inception an objective mind may violate the Fourth Amendment by might weigh the need virtue of its [subsequent] intolerable to invade that intensity and scope.” Terry, 392 U.S. at 17. privacy in order to Katz was not the first time that the enforce the law. The Court has declared that liberties protected right of privacy was by a warrant requirement can not be left to deemed too precious the discretion of law enforcement officers to entrust to the absent exigent circumstances not involved discretion of those here. More than half a century ago, the whose job is the Supreme Court declared: detection of crime and the arrest of T]he point of the Fourth criminals. Amendment, which is often not grasped by zealous officers, is not that it denies McDonald v. United States, 335 U.S. 451, law enforcement the support 455-56 (1948). of the usual inferences which reasonable men draw I believe the government’s end run from evidence. Its around that “high function” here requires protection consists in that we reverse the district court’s ruling requ iri n g t h a t those on Lee’s Fourth Amendment claim. I have inferences be drawn by a already explained that, although Agent n e u t r a l a n d d e t a c h ed Reilly’s restraint may be commendable magistrate instead of being and demonstrate the government’s good judged by the officer faith, that is not sufficient given these engaged in the o ften facts. Rather, as I explained above, a competitive enterprise of warrant is required to insure that such ferreting out crime. invasions are warranted and conducted in an appropriate manner. The invited informant doctrine only increases the need Johnson v. United States, 333 U.S. 10, 13- to obtain a warrant in advance of this type 14 (1948). That is why the warrant of video surveillance. “No police officer requirement applies in situations such as would be able to know in advance whether his through-the-wall surveillance picks up intimate details – and thus would be unable to know in advance whether it is

38 the one before us here.18 right of privacy to law enforcement’s discretion. Accordingly, I must I can not endorse my colleague’s respectfully dissent from my colleagues’ willingness to entrust the fundamental analysis of Lee’s Fourth Amendment claim. 18 In arguing that the government was obligated to obtain a warrant for this kind of electronic surveillance, I realize that the authority of the federal courts to issue search warrants authorizing video surveillance is uncertain under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. See 18 U.S.C. § 2511 (a section of Title III). We have never determined whether Title III authorizes federal courts to issue warrants for video surveillance, and there is considerable authority that it doesn’t. See United States v. Falls, 34 F.3d 674, 679 (8th Cir. 1994); United States v. Koyomejian, 970 F.2d 536, 539 (9th Cir. 1992); United States v. Torres, 751 F.2d 875, 880 (7th Cir. 1984). However, although these courts have concluded that Title III does not give federal courts that authority, courts have consistently found that authority under Fed. R. Crim. P. 41(b), as well as under the inherent supervisory powers of federal courts, so long as any warrant that may issue contains the safeguards of the restrictions embodied in Title III. See, e.g., In the Matter of the Application of the United States of America for an Order Directing X to Provide Access to Videotapes, 03-MC-89, 2003 U.S. Dist. LEXIS 15227 at *4, *5 n.1, *9 n.3 (D. Md. Aug. 22, 2003); see also Falls, 34 F.3d 678-79; Koyomejian, 970 F.2d at 542; Torres, 751 F.2d at 877- 78.