United States v. Maurice Fregia

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 2, 2021
• Docket: 20-30158
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 2 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30158

Plaintiff-Appellee, DC No. 1:18-cr-0058-SPW

v. MEMORANDUM* MAURICE JOSEPH FREGIA,

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Argued and Submitted October 4, 2021 Seattle, Washington

Before: TASHIMA, M. SMITH, and NGUYEN, Circuit Judges.

Maurice Fregia appeals from the judgment entered following his conviction,

after trial by jury, on three counts: (1) conspiracy to possess with intent to

distribute methamphetamine, 21 U.S.C. §§ 841(a)(1), 846; (2) possession with

intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1); and (3) possession of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Reviewing de novo, United States v. Korte, 918 F.3d 750, 753 (9th

Cir.), cert. denied,140 S.Ct. 264 (2019), we conclude that the district court did not

err in denying Fregia’s motion to suppress evidence. Fregia argues that the orders

authorizing law enforcement to install pen registers and trap and trace devices, and

to obtain his cell site location information (“CSLI”) were invalid because they did

not contain “geographic limits,” Mont. Code Ann. § 46-4-403(2)(c), and that the

orders thus were not “issued by a duly authorized court,” Mont. Code Ann. § 46-5-

110(1)(a).

The orders, however, complied with the requirements of the Fourth

Amendment, which provides that “no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” U.S. Const. amend. IV. The

district court thus properly denied Fregia’s motion to suppress. See United States

v. Hurd, 499 F.3d 963, 967– 68 (9th Cir. 2007) (“Because a neutral and detached

judge signed the warrant, and because that warrant was supported by a sworn

affidavit clearly establishing probable cause and describing with particularity the

places to be searched and the items to be seized, it met all of the constitutional

2 requirements for a valid search warrant.”); United States v. Miranda-Guerena, 445

F.3d 1233, 1237 (9th Cir. 2006) (in a federal prosecution, the relevant question was

“not whether the stop violated Arizona law,” but “whether the stop violated the

Fourth Amendment”).

We note that the prosecutors proceeded under the incorrect state statute to

obtain Fregia’s CSLI, relying on Montana Code § 46-4-403, which addresses the

installation of pen register and trap and trace devices.1 The acquisition of CSLI is

addressed by § 46-5-110, which states that “a government entity may not obtain

the location information of an electronic device without a search warrant issued by

a duly authorized court.” Mont. Code Ann. § 46-5-110(1)(a). Despite the fact that

the prosecutors sought Fregia’s CSLI under the incorrect statute, the orders were

supported by affidavits establishing probable cause, a finding that Fregia does not

1 The prosecutors did request authority to install and use “pen-trap devices,” but they also sought Fregia’s CSLI. 3 dispute.2 By establishing probable cause, the orders complied with the

requirements of a search warrant under Montana law. See Mont. Code Ann. § 46-

5-221(2). In any event, a violation of state warrant procedures does not by itself

require suppression in federal court. See United States v. Cormier, 220 F.3d 1103,

1111 (9th Cir. 2000) (“The general rule . . . is that evidence will only be excluded

in federal court when it violates federal protections, such as those contained in the

Fourth Amendment, and not in cases where it is tainted solely under state law.”).

2. Fregia contends that the district court abused its discretion in denying

his request for new counsel without making an inquiry into his allegations. We

disagree. The district court did not deny Fregia’s motion to substitute counsel.

Instead, the court considered the motion withdrawn based on his counsel’s

representation that Fregia had changed his mind and wanted to proceed to trial.

Fregia then proceeded to trial with that counsel and never raised his earlier motion

until after the trial was over.

2 Even if the orders did not comply with state law because they were issued under the incorrect statute, the good faith exception to the exclusionary rule applies because there is no evidence that the officers acted in bad faith. See United States v. Henderson, 906 F.3d 1109, 1119–20 (9th Cir. 2018) (explaining that “application of the good faith exception is permitted where a warrant is void because of a magistrate judge’s jurisdictional violation, so long as the executing officers had an objectively reasonable belief that the warrant was valid,” and holding that the good faith exception barred suppression of the evidence because there was no evidence officers acted in bad faith). 4 Fregia relies on Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000) (en banc), but

Schell is distinguishable. In Schell, the petitioner presented evidence that, before

trial, he asked his attorney about his pending motion for substitute counsel. The

motion had not been ruled on, but his attorney told him that “the motion must have

been denied because she was still his attorney.” Id. at 1021.

However, Schell only remanded for the habeas court to hold an evidentiary

hearing on whether any conflict amounted to ineffective assistance. Id. at 1027.

Schell said that an inquiry should have been made when a motion for substitute

counsel went unaddressed, id. at 1025, but it did not involve the situation here,

where a motion for substitute counsel was withdrawn.3

The judgment of conviction is AFFIRMED.4

3 Fregia’s reliance on United States v. Velazquez, 855 F.3d 1021 (9th Cir. 2017), also is unavailing. There, the defendant “clearly and consistently raised concerns about her representation,” but the court denied the substitution motion without inquiry. Id. at 1035. Unlike in Velazquez, Fregia did not raise the subject of his withdrawn motion again until after the verdict was rendered. 4 We decline to address Fregia’s claim that his counsel rendered ineffective assistance. See United States v. Liu, 731 F.3d 982, 995 (9th Cir. 2013) (“As a general rule, we do not review challenges to the effectiveness of defense counsel on direct appeal.”). 5