United States Court of Appeals, District of Columbia Circuit
Argued January 20, 2015.
Appeal from the United States District Court for the District of Columbia. (No. 1:08-cr-00057-16).
Richard K. Gilbert, appointed by the court, argued the cause for appellant. With him on the briefs was Kristen Grim Hughes, appointed by the court.
Nina S. Goodman, Attorney, U.S. Department of Justice, argued the cause and filed the brief for appellee.
Before: ROGERS and SRINIVASAN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Williams, Senior Circuit Judge:
Appellant Aurelio Cano-Flores appeals from his conviction for conspiring to manufacture and distribute cocaine and marijuana for importation into the United States, in violation of 21 U.S.C. § § 959, 960, and 963. He raises a number of challenges to his conviction and sentence. We reject all, with one exception: we conclude that the $15 billion forfeiture assessed by the district court must be recalculated under the terms of 21 U.S.C. § 853(a)(1), and we remand to the district court for that purpose. Accordingly we do not reach Cano-Flores's argument that the forfeiture constituted an " excessive" fine in violation of the Eighth Amendment, or his contentions that the court miscalculated the forfeiture under its understanding of § 853(a)(1).
* * *
Cano-Flores was a member of the Gulf Cartel, one of the largest and most infamous drug cartels in Mexico. A former Mexican state police officer, Cano-Flores participated in the cartel's takeover of Miguel Alemá n, a Mexican border city or " plaza" across the Rio Grande from Roma, Texas. The officials and police in the town turned a blind eye to the cartel's drug trafficking, which took in roughly between $1 million and $2 million in weekly profits in Miguel Alemá n alone. Cano-Flores was responsible for guarding shipments of marijuana and cocaine, and he several times completed drug sales. In late 2005 or early 2006, Cano-Flores became a " plaza commander" in Los Guerra, a town near Miguel Alemá n that also borders Texas. As a " trusted man" in the cartel, he was in charge of transporting, storing, and distributing drugs in his territory, as well as accounting for the drugs and money that moved across the border.
Using wiretaps that are the subject of several claims on appeal, the Drug Enforcement Administration gathered evidence of the cartel's activities, leading to a 2008 indictment of Cano-Flores along with other cartel members. A warrant was issued for his arrest, and he was extradited to the United States in August 2011.
Cano-Flores argues that the wiretap authorization orders exceeded the jurisdiction of the issuing court, that the listening agents failed to properly minimize their overhearing of the intercepted conversations, and that the transcripts of those conversations were improperly sent into the jury deliberation room. As to sentencing, Cano-Flores argues that his below-Guidelines 35-year sentence was substantively unreasonable and that his $15 billion criminal forfeiture assessment was incorrectly calculated and in violation of the Eighth Amendment.
* * *
The DEA conducted its wiretaps under authorizations from various federal district judges in the U.S. District Court for the Southern District of Texas. For each targeted telephone number, the telephone service provider (evidently always Nextel) directed the calls' content to a DEA " wire room" in Houston, where Spanish-speaking DEA contractors monitored the calls. So far as appears, the process intercepted only calls made near the border; when the cell phones were in roaming mode, they would seek the strongest signal, which was very commonly a cellphone tower in the United States.
Before trial, Cano-Flores moved to suppress evidence from the wiretap, arguing that the district court in Texas lacked jurisdiction to issue wiretap authorization orders targeting the calls because the devices were located in Mexico and the authorizing statute grants no authority to intercept communications outside the United States. The statutory basis for the interceptions was Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 211, codified at 18 U.S.C. § § 2510-2520, which permits district judges to issue orders authorizing " interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting." 18 U.S.C. § 2518(3). Section 2510(4) in turn defines " intercept[ion]" as " aural or other acquisition of the contents of any wire, electronic, or oral communication."
Without addressing Cano-Flores's arguments about the ultimate reach of Title III, the district court found the interceptions lawful: they had taken place not in Mexico, but " in the DEA wire room located in Houston, Texas (a location within the Southern District of Texas) after they had been accessed by cellular towers located in the United States." Although the statute does not supply an explicit rule for determining where interception occurs, courts have integrated the language allowing " interception . . . within the territorial jurisdiction of the court in which the judge is sitting" with the language that defines " intercept" as the " aural or other acquisition of the contents of any . . . communication." On the basis of these provisions, for example, United States v. Rodriguez, 968 F.2d 130 (2d Cir. 1992), held that besides occurring at the site of the telephone, an interception " must also be considered to occur at the place where the redirected contents are first heard." Id. at 136. In a separate opinion, Judge Meskill, though rejecting this reasoning, gave it its name--the " listening post" theory. Id. at 144. The basic reasoning has been accepted in all courts of appeals to address the issue. See United States v. Henley, 766 F.3d 893, 911-12 (8th Cir. 2014); United States v. Luong, 471 F.3d 1107, 1109-10 (9th Cir. 2006); United States v. Jackson, 207 F.3d 910, 914-15 (7th Cir.), vacated on other grounds, 531 U.S. 953, 121 S.Ct. 376, 148 L.Ed.2d 290 (2000); United States v. Denman, 100 F.3d 399, 402-03 (5th Cir. 1996); United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir. 1994).
Cano-Flores points out that in United States v. Glover, 736 F.3d 509, 407 U.S.App.D.C. 189 (D.C. Cir. 2013), we observed that the statute " does not refer to a 'listening post,'" id. at 514, which is of course true. But all we held there was that the statute did not authorize a magistrate in one jurisdiction to authorize the planting of a physical bug on private property in another jurisdiction, and we distinguished Rodriguez and similar cases as dealing with telephone intercepts. Id. at 514-15. We didn't mention and had no occasion to construe the " aural . . . acquisition" language of § 2510(4).
Cano-Flores argues that none of the cases applying the " listening post" theory involved taps of conversations occurring abroad. True enough, but we don't see how that alters the force of the general principle, which turns on the statutory language.
He also argues that the listening post theory, which predates the wireless era, should be inapplicable in cases involving wireless communications. But he points to no distinction between the two eras that calls for a different result. Of course it is true that the primary means by which end users interface with the telephone system has significantly changed. But that change alone is not what accounts for the expansiveness of the listening post theory, which Cano-Flores suggests is boundless. Whatever boundlessness the theory may imply is due to the fact that phones used in one location can be tapped in a way that allows agents to first hear them somewhere else, and he points to no special change in this characteristic. In fact courts have applied the principle equally to landlines, see Rodriguez, 968 F.2d at 135 (applying listening post theory to support jurisdiction in the Southern District of New York for evidence from four landline telephones located in a New Jersey café ), and cell phones, see Henley, 766 F.3d at 911-12 (upholding the Eastern District of Missouri's authorization of a wiretap on communications from a cellular phone located in Illinois).
The alleged boundlessness of which Cano-Flores complains stems from the statutory language, especially the definition of " intercept," which Cano-Flores does not try to parse. Moreover, whatever the force of the effects to which he points, there are opposing concerns. On his view government officials would be required to obtain a wiretap order in every district where they thought a target could make calls. Such a scheme seems unworkable. Moreover, by diffusing oversight responsibilities, it might weaken the courts' ability to protect citizens' privacy by monitoring the wiretap process. As Rodriguez suggested, " If all of the authorizations are sought from the same court, there is a better chance that unnecessary or unnecessarily long interceptions will be avoided." 968 F.2d at 136.
* * *
Cano-Flores also sought suppression on the grounds that the agents listening to the calls failed to heed the Federal Wire Tap Statute's requirement that officials " conduct [the wiretap] in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter." 18 U.S.C. § 2518(5). Officials must make " reasonable" efforts to minimize the interception of non-relevant conversations. United States v. Carter, 449 F.3d 1287, 1295, 371 U.S.App.D.C. 269 ...