                                                                                                                           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Precedential or Non-Precedential: Precedential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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"USA v. Lee" (2004). 2004 Decisions. Paper 948.
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                      PRECEDENTIAL               Counsel for Appellant

     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.

                                                39
