Wednesday, March 25, 2009
Court of Appeal Upholds Conviction on Evidence From Unrelated Wiretap
By STEVEN M. ELLIS, Staff Writer
This district’s Court of Appeal yesterday rejected a Los Angeles woman’s argument that recordings of telephone conversations with her husband about a murder could not be used against her because the authorization for the federal wiretap targeted an unrelated offense.
Div. Five ruled Miriam Ahamad had standing to argue authorities failed to minimize surveillance to conversations on drug trafficking, but denied her motion to suppress the recordings because federal law permits disclosure of communications involving other offenses.
Ahamad was convicted as an accomplice after the fact to the 2004 murder of Marco Antonio Larrainzar, who was shot and killed while celebrating a friend’s birthday in Los Angeles.
Jose Albert Reyes Jr. and Ahamad’s husband—identified only by the last name Aguilar—attacked Larrainzar and his two companions at the El Pulgarcito restaurant in Los Angeles after an altercation arose when one of the revelers declined to identify which “barrio” he was from.
Reyes and Aguilar were Guatemalan, while Larrainzar and his companions were Mexican.
In the following hours, Drug Enforcement Administration agents who had obtained a federal court order to intercept and monitor Aguilar’s mobile phone recorded conversations in which he told his wife about the shooting.
The agents then shared with detectives investigating Larrainzar’s murder recordings of over 19 phone calls in which Ahamad and Aguilar discussed the shooting and witnesses, and in which Ahamad promised to meet Aguilar with clothes, cash and false identification.
Authorities observed the meeting and subsequently took Aguilar into custody, but later released him in hopes of obtaining more information from the wiretap. He was arrested again in Oakland in 2005, but died before trial.
In proceedings before Los Angeles Superior Court Judge David Wesley, Ahamad moved to suppress the recordings, arguing the federal agents failed to comply with “minimization” and “spot monitoring requirements” imposed by 18 U.S.C. § 2518(5).
The statute directs that interception of conversations not pertinent to an investigation should be minimized, and provides for only limited monitoring of nonpertinent conversations to determine if a conversation’s character has changed.
Wesley denied the motion, holding that Ahamad lacked standing to suppress the recordings because she had no legitimate expectation of privacy, and a jury convicted Reyes of first degree murder and Ahamad as an accomplice. The jury also found that the offense was committed for the benefit of a criminal street gang.
However, Presiding Justice Paul Turner wrote on appeal that Ahamad did have standing to move for suppression under the Omnibus Crime Control and Safe Streets Act, which allows any “aggrieved person” who was a party to an intercepted communication to seek such relief.
Noting that the U.S. Supreme Court explained in Scott v. United States (1978) 436 U.S. 128 that the minimization requirement does not forbid the interception of conversations unrelated to the specific reason a warrant was issued, Turner commented that the prosecution normally bore the initial burden to demonstrate compliance.
But the justice concluded that the failure to allow the prosecution to present evidence on the minimization issue was harmless error in light of Sec. 2517(5)’s express permission for federal law enforcement officials to disclose the contents of intercepted communications involving offenses other than those specified in the federal judge’s authorization or approval.
Justices Orville A. Armstrong and Sandy R. Kriegler joined Turner in his opinion.
In an unpublished portion of the opinion, the justices affirmed both Ahamad’s accomplice conviction and Reyes’ murder conviction, as well as the jury’s findings that the offenses were committed to benefit a criminal street gang.
They also denied Reyes’ appeal claiming Wesley erred when he denied a severance motion and admitted testimony from two Los Angeles Police Department gang investigators.
The case is People v. Reyes, 09 S.O.S. 1780.
Copyright 2009, Metropolitan News Company