Tag Archives: First Circuit Court of Appeals

Adequacy of Wiretap Applications: Title III of the Omnibus Crime Control and Safe Streets Act in the First Circuit Court of Appeals

Published By Stephen Preziosi

Wiretap Application was More Than Minimally Adequate to Justify the Authorization of a Wiretap

United States of America v. Hugo Santana-Dones

United States Court of Appeals for the First Circuit

920 F.3d 70 (1st Cir. 2019)

Decided on March 29, 2019

Federal Appeals Lawyer in the First Circuit Court of Appeals

Boston Federal Appeals Lawyer

Massachusetts Federal Appeals Lawyer

ISSUE:

Whether the district court erred in concluding that the court which issued the wiretap warrant could have found the facts in the application to be at least minimally adequate to support the a wiretap warrant and whether any reasonable view of the evidence supports the district court’s finding under both Title III of the Omnibus Crime Control and Safe Streets Act and the Fourth Amendment.   

Federal Criminal Appeals After Trial

HOLDING:

The Court held that the wiretap application, read in tandem with its supporting affidavit, was more than minimally adequate to justify the authorization of a wiretap because the Court’s inquiry is guided by Title III.  Title III provides a comprehensive scheme for the regulation of electronic surveillance, prohibiting all secret interception of communications except as authorized by certain state and federal judges in response to applications from specified federal and state law enforcement officials.

FACTS OF THE CASE:

Following several other methods of investigation and surveillance, Drug Enforcement Administration (DEA) agents then went a step further and made use of a wiretap of Vasquez’s cellular telephone, which had been authorized and periodically renewed by a federal district judge.  A month later, a federal grand jury in the District of Massachusetts charged all defendants on multiple counts of distributing heroin and cocaine under 21 U.S.C. §§ 841 (a)(1) and 846.  After maintaining their innocence for an extended period of time, the defendants pleaded guilty to all the charges, reversing the right to challenge the district court’s suppression-related rulings and to claim ineffective assistance of counsel.   

Federal Appeals: Drug Convictions and Conspiracy to Distribute

COURT’S ANALYSIS:

The First Circuit Court of Appeals held that the wiretap application, read in tandem with its supporting affidavit, was more than minimally adequate to justify the authorization of a wiretap.  When examining a district court’s ruling on a motion to suppress wiretap evidence, this Court reviews its factual findings for clear error and its legal conclusions de novo.  To find clear error, the Court must form a strong, unyielding belief, based on the whole of the record, that a mistake has been made.  In this instance, the Court’s inquiry is guided by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522, which governs the rules for federal telephone wiretaps.  Title III provides a comprehensive scheme for the regulation of electronic surveillance, prohibiting all secret interception of communications except as authorized by certain state and federal judges in response to applications from specified federal and state law enforcement officials.

The law’s main purposes: (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.  It follows that wiretapping is an exception, not a rule.  The law imposes a set of statutory requirements on top of the constitutional requirements applicable to ordinary search warrants.  A wiretap application must contain, in addition to the foundational showing of probable cause, a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.  Necessity must, therefore, be viewed through the lens of what is pragmatic and achievable in the real world.  Since drug trafficking is inherently difficult to detect and presents formidable problems in pinning down the participants and defining their roles, investigative personnel must be accorded some latitude in choosing their approaches.

Federal Appeals of Firearm Convictions: 18 U.S.C. §§ 921, 922, 924

The Supreme Court has warned that a wiretap is not to be routinely employed as the initial step in criminal investigation.  A reviewing court must examine whether reasonable procedures were attempted, or at least thoroughly considered, prior to seeking a wiretap.  The inquiry into whether the government has sufficiently demonstrated necessity does not hinge on whether it already has garnered enough goods to pursue criminal prosecution.  After all, an application for a wiretap will always have to disclose some meaningful level of previous success in order to satisfy the probable cause requirement and justify further investigation.  To be sure, the level of success achieved through a given procedure will vary in relation to the scope of the investigation as established by the government.  It follows that, in seeking a wiretap, the government cannot be permitted to set out goals that are either unrealistic or overly expansive.

            In this case, the defendants argue that the government made a Gadarene rush to employ electronic surveillance and that its attempt to show necessity in the affidavits supporting the warrant were unconvincing.  The First Circuit found that the affidavit was sufficient to allay reasonable concern that the wiretap was being sought prematurely.  It demonstrated that the government had employed and exhausted a number of traditional investigative measures over the course of more than six months.

RICO Convictions in Puerto Rico Call First Circuit to Analyze Sufficiency Requirements

Published By Stephen Preziosi

US v. Rodriguez-Torres
939 F.3d 16
First Circuit Court of Appeals
Decided: September 18, 2019

Issue:

What is required to convict under RICO and what evidence is considered sufficient to meet those requirements?

Holding:

The First Circuit held that there was sufficient evidence to show defendants met the requirements under RICO. A RICO conviction requires:

  1. That an “enterprise” existed and that the group had:
    • a common purpose,
    • relationships within the enterprise, and
    • longevity
  2. That the organization affected foreign or interstate commerce;
  3. That the defendants had some role operating and managing the organization;
  4. That there was a pattern of racketeering; and
  5. That the defendants knowingly joined the conspiracy.

Facts:

A gang known as La Rompe ONU was one of the biggest street gangs in Puerto Rico. After the take-down, an astounding 105 defendants were charged with racketeering, drug trafficking, firearms offenses, and murder. It was alleged that La Rompe profited by selling drugs to a large number of public housing projects by using violence and threats to maintain power over its territory. Four convicted defendants appealed to the First Circuit and argued, among other things, that there was insufficient evidence to convict them under RICO.

Analysis:

The Racketeer Influenced and Corrupt Organizations Act (RICO) was enacted in 1970 to prosecute organized crime in the United States. 18 U.S.C. § 1962(c),(d) provides that anyone “employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of an enterprise’s affairs through a pattern of racketeering activity” or to conspire to do so. 

Enterprise Requirements Under RICO: Purpose, Relationships, and Longevity

Under RICO, an “enterprise” is defined as any group of individuals “associated-in-fact,” with the exception of legal entities. An association-in-fact is proved by evidence of an ongoing organization (formal or informal) and by evidence that its associates function as a continuing unit.

To determine whether an enterprise exists under RICO, the U.S. Supreme Court set out a three part test that asks whether the group has (1) a common purpose, (2) relationships among those associated with the enterprise, and (3) longevity sufficient to permit these associates to pursue the enterprise’s purpose. Boyle v. United States, 556 U.S. 938, 946, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009).

The First Circuit held La Rompe met the “common purpose” requirement in determining whether the group made up an enterprise under RICO. According to the Court, there was sufficient evidence to show that La Rompe’s purpose was to profit by selling drugs at housing projects under their control by using violence. The group also shared the common purpose of expanding and strengthening its power.

In determining whether the group met the “relationships” requirement under RICO, the Court held there was more than sufficient evidence to show the group made up an enterprise. To start, the group’s naming their organization “La Rompe ONU”—where “ONU” stands for Organization of United Drug Traffickers, in English—showed they viewed themselves as a united group. Additional evidence cited by the Court pointed to the group’s loyalty to one another, pooling resources for the group’s common purpose, and joint criminal activity.

As for the longevity requirement, the Court held evidence showing La Rompe continued as a unit for eight years was more than enough to check off the final enterprise factor under RICO.

RICO Racketeering Affects Interstate or Foreign Commerce

Another element of RICO the government must prove is whether the organization affected interstate or foreign commerce. The codefendants argued the organization never operate outside of Puerto Rico. However, La Rompe’s trafficking of cocaine and heroin affected foreign commerce because, as the government’s expert witness testified, these narcotics are not produced in Puerto Rico and must have been imported. Additionally, the Court pointed to expert testimony that the large quantities of marijuana were likely imported from southwestern US states, thus also affecting interstate commerce.

Running the Enterprise: Level of Participation in RICO Activities

Not only must the government prove defendants participated in RICO activities, but it must also show defendants were involved to some degree with operating or managing the enterprise. The member of the enterprise need not be in a position of “upper management” to operate an enterprise. A group member can hold management status even under the direction of someone further up the chain. The Court found the La Rompe defendants held this status, at least to a sufficient degree, as evidence established they were drug-point owners.

Pattern of Racketeering

At least two predicate acts of racketeering within ten years of each other are required in showing a pattern of racketeering exists. These predicate acts include drug trafficking, bribery, money laundering, murder, robbery, extortion, and more. The government must also prove the acts are somehow related to one another and “amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989).

The La Rompe defendants argued that they should not have been prosecuted under RICO because evidence only established predicate acts of drug trafficking and no other acts. However, the Court held the defendants incorrectly interpreted the requirements of “pattern of racketeering” in that the “two or more” predicate acts do not have to be two distinct acts. On the contrary, a defendant may be prosecuted under RICO for multiple counts of mail fraud, for instance, without evidence of any other types of predicate acts. 

“Knowingly Joined” Requirement

The final RICO requirement disputed by the defendants is that they did not “knowingly join” the RICO conspiracy. This element only requires that a defendant “agreed with one or more coconspirators to participate in the conspiracy.” See United States v. Ramírez-Rivera, 800 F.3d 1, 18 n.11 (1st Cir. 2015). The Court held that the defendants’ participation as drug-point owners was enough to show they knowingly entered into the conspiracy since making money through drug dealing was the main purpose of La Rompe’s conspiracy.

RICO Racketeering Conspiracy: How Specific Must a Jury’s Verdict be? No Need To Name Racketeering Acts Says The First Circuit.

Published By Stephen Preziosi

United States v. Leoner-Aguirre
No. 18-1333
First Circuit Court of Appeals
Decided: September 20, 2019

ISSUE

Withdrawing From a Racketeering Conspiracy: Incarceration Doesn’t Count

  • Whether the incarceration of a defendant constitutes a withdrawal from a RICO conspiracy.

HOLDING

  • The Court held that the jury is not required to state in its verdict which specific racketeering acts the defendant committed. The Court relied on Salinas v. United States, 522 U.S. 52 (1997), which overruled United States v. Ramirez-Rivera 800 F.3d 1, 18 (1st Cir. 2015). Thus, while there was a long list of alleged acts that Mr. Aguirre was accused of such as murder, attempted murder, robbery etc. It was not necessary for the jury to specify which acts they found the defendant to have committed. 
  • The Court held that imprisonment has no bearing on whether a defendant has withdrawn from a racketeering conspiracy nor does ceasing to participate in a conspiracy mean a defendant has withdrawn. To withdraw from a RICO conspiracy, a conspirator must act affirmatively. Typical demonstrations of withdrawal include a “full confession or communication of abandonment to one’s co-conspirators.”

What is Required in a Jury’s Verdict to Convict a Defendant of RICO or Racketeering Conspiracy?

FACTS

Rafael Leoner-Aguirre was a member of the El Salvador based gang “MS-13,” which also operates in the United States. In 2017, a grand jury indicted Aguirre for a conspiracy under the RICO Act (Racketeer Influenced and Corrupt Organizations). Allegations against Aguirre under the RICO conspiracy included attempted murder, robbery, and drug trafficking. A jury found Aguirre guilty of RICO conspiracy and he was sentenced to 228 months in prison with three years of supervised release.

Before his trial, Aguirre urged the district court to instruct the jury to specify which acts it found Aguirre had committed in order to convict him of RICO conspiracy. The district court denied his motion, and Aguirre appealed to the First Circuit.

ANALYSIS

No Findings of Specific Acts of RICO Conspiracy from the Jury are Necessary in a Jury’s Verdict

Aguirre’s argument that the jury must specify which racketeering acts Aguirre committed to convict him of RICO conspiracy relies on the First Circuit’s ruling in United States v. Ramirez-Rivera 800 F.3d 1, 18 (1st Cir. 2015). However, the Court found that the Supreme Court’s decision in Salinas v. United States, 522 U.S. 52 (1997) contradicts the case on which the Ramirez-Rivera decision relies. Aguirre’s argument, therefore, fails since the Supreme Court’s decision overrules the underlying case in Ramirez-Rivera.

Incarceration Does Not Constitute Withdrawal from a RICO Conspiracy

As to the withdrawal issue, the First Circuit held that a defendant convicted of RICO conspiracy does not withdraw from a conspiracy just because he has entered prison. On the contrary, the Court found there was sufficient evidence to determine that Aguirre continued to actively participate in the conspiracy while incarcerated. As the Court pointed out, “ . . . mere cessation of activity in furtherance of the conspiracy does not constitute withdrawal.” Instead, the defendant must demonstrate he has affirmatively withdrawn from the RICO conspiracy. Although the Court provided no specific rule, it held that affirmative withdrawal from a conspiracy typically “requires either a full confession to authorities or a communication by the accused to his co-conspirators that he has abandoned the enterprise and its goals . . .”