US v. Lario

Filing 920100129

Opinion

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var WPFootnote1 = 'Of the Federal Circuit, sitting by designation.\
'

var WPFootnote2 = ' As noted, Agron proceeded to trial, while Robles and Larios\
entered guilty pleas and proceeded to sentencing. Essentially the\
same facts were adduced at the trial and sentencing proceedings. \
'

var WPFootnote3 = ' A law enforcement officer conducting surveillance outside\
Larios\'s home on the afternoon of November 11 observed appellants\
leave Larios\'s home and get into the silver pick-up truck. The\
surveilling officer could not identify, at that time, the\
individual carrying the dark gym bag. \
'

var WPFootnote4 = ' DEA Agent Jamie Vitale, who conducted surveillance from the\
motel room on November 11, testified that he could not see who was\
carrying the gym bag through the peephole in the door. However,\
the video recording of the motel room showed that Agron was\
carrying the gym bag when appellants entered Room 125.\
'

var WPFootnote5 = ' We surmise that Robles\'s reliance on Title III as the basis\
for his motion to exclude reflected an awareness that, as the\
district court had correctly concluded during Larios\'s sentencing\
hearing the previous day, the Fourth Amendment did not provide a\
basis for excluding the audio/video recording at sentencing.\
'

var WPFootnote6 = ' The parties do not dispute that Robles and Larios satisfied\
the first four criteria for safety valve relief, which are: \
\
(1) the defendant does not have more than 1\
criminal history point, as determined under\
the sentencing guidelines; \
(2) the defendant did not use violence or\
credible threats of violence or possess a\
firearm or other dangerous weapon (or induce\
another participant to do so) in connection\
with the offense; \
(3) the offense did not result in death or\
serious bodily injury to any person; \
(4) the defendant was not an organizer,\
leader, manager, or supervisor of others in\
the offense, as determined under the\
sentencing guidelines and was not engaged a\
continuing criminal enterprise, as defined in\
section 408 of the Controlled Substances Act.\
. . .\
 \
18 U.S.C. § 3553(f)(1)-(4); see also U.S.S.G. § 5C1.2(1)-(4).\
'

var WPFootnote7 = ' In addition, at the hearing on the motion to exclude\
evidence, counsel for Larios expressly conceded that the video\
portion of the recording was admissible and argued that the video\
recording was consistent with Larios\'s safety valve proffer. \
Defense counsel stated: "the video portion of the -- of the tape,\
which is admissible, I think, under -- because it\'s not the audio\
portion, I don\'t think speaks to somebody who was involved." \
'

var WPFootnote8 = ' Indeed, the only portion of the audio recording that appears\
relevant to the court\'s safety valve determination is Robles\'s\
statement to Agron to "Keep your eyes peeled there, in case you see\
something strange, you talk to me or you talk to him . . . ." \
Agron\'s own observable conduct indicated that he was at the scene\
to provide some kind of surveillance.\
'

var WPFootnote9 = ' Of course, silent video surveillance is subject to the\
Fourth Amendment, see, e.g., Torres, 751 F.2d at 882, and if Agron\
had raised a Fourth Amendment claim, he could have challenged the\
admission of the video recording. However, he made no Fourth\
Amendment claim in the district court.\
'

var WPFootnote10 = ' In its ruling, the district court did acknowledge that\
hidden audio/video surveillance was a particularly severe form of\
government intrusion.\
'

var WPFootnote11 = ' Agron describes the intrusion in this case as secret\
audio/video surveillance. However, as discussed above, Agron\'s\
motion to suppress was premised solely on Title III, which applies\
to audio surveillance, not silent video surveillance. Therefore,\
we address only the government\'s audio surveillance. \
'

var WPFootnote12 = ' In Nerber, the government conceded that audio surveillance\
conducted after the informants departed the motel room was\
inadmissible under Title III. Id. at 604. The government makes no\
such concession in this case. \
'

var WPFootnote13 = ' United States v. Ingram, No. 04-201-CR-1, 2005 WL 775930\
(S.D. Ind. Mar. 25, 2005), a district court case that found the\
reasoning in Nerber persuasive, is also readily distinguishable. \
In Ingram, the court concluded that two defendants alone in a motel\
room rented by law enforcement agents had a reasonable expectation\
of privacy from secret video/audio surveillance. Id. at *6. The\
defendants arrived at the motel room in the night, spent five to\
seven hours there, two of them slept for several hours, and they\
"made themselves comfortable, ate, talked, relaxed, and generally\
settled in for a short but restful overnight stay." Id. at *4. \
The court held that, based on the defendants\' engagement with the\
motel room and the severely intrusive nature of the audio/video\
surveillance, they had a reasonable expectation of privacy in the\
room. Id. at *6. In this case, Agron\'s few minutes in the motel\
room did not in any way resemble a "short but restful overnight\
stay." \
'

var WPFootnote14 = ' Agron also filed a pro se supplemental brief raising several\
claims that were not raised in the district court, and are\
therefore reviewed for plain error. United States v. Stepanian,\
570 F.3d 51, 59 (1st Cir. 2009). We find no error. First, Agron\
contends that the government failed to establish that law\
enforcement agents rented the motel room where the drug transaction\
took place. However, law enforcement agent testimony demonstrated\
that the DEA rented two rooms at the Super 8 motel and gave the key\
for one of the rooms to Robles. Second, he argues that the\
criminal complaint against him was not supported by probable cause,\
noting that the complaint did not mention that the investigation\
began after DEA agents received a tip from a cooperating source. \
However, in an affidavit filed with the criminal complaint, Agent\
Vitale set forth the events leading up to Agron\'s arrest and noted\
that he was not providing an exhaustive list of all known facts\
related to the investigation. The magistrate judge did not err in\
finding probable cause based on this affidavit. Third, Agron\
argues that the prosecutor knowingly elicited false testimony at\
trial. He contends that Agent Vitale\'s testimony that the\
investigation began after the DEA received a tip from a cooperating\
source was false, because it was not included in Vitale\'s affidavit\
in support of the criminal complaint. As noted, however, Vitale\'s\
affidavit was not an exhaustive catalogue of every fact known to\
him about the investigation, and there is no indication that his\
testimony was false. \
'

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