Appeals from Judgments of Conviction Entered in the United States District Court for the District of Vermont, Albert W. Coffrin, Chief Judge, for Conspiracy to Import and Export Hashish, 21 U.S.C. § 963, Conspiracy to Distribute and to Possess with Intent to Distribute more than 1000 Pounds of Hashish, 21 U.S.C. § 846, Importation of Hashish, 21 U.S.C. §§ 952 and 960, Possession of more than 1000 Pounds of Hashish with Intent to Distribute it, 21 U.S.C. § 841, and Aiding and Abetting in these Offenses, 18 U.S.C. § 2. Reversed as to Defendant Sally Edith and Affirmed as to All Other Defendants.
Feinberg, Chief Judge, Mansfield and Cardamone, Circuit Judges.
CARDAMONE, Circuit Judge:
This appeal arises from charges leveled against nine persons as a result of a seizure of nearly two tons of hashish from a barn in an isolated, rural area of Vermont. All nine were charged by indictments filed in the United States District Court for the District of Vermont in late 1982 with conspiracy to import and export hashish in violation of 21 U.S.C. § 963 (Count 1) and conspiracy to distribute and to possess with intent to distribute more than 1,000 pounds of hashish in violation of 21 U.S.C. § 846 (Count 2). Four were charged with importation of hashish into the United States in violation of 21 U.S.C. §§ 952 and 960 (Count 3). Count 4 charged two individuals of this group with possessing over 1,000 pounds of hashish with intent to distribute it in violation of 21 U.S.C. § 841 and charged the seven others with aiding and abetting the two principals in violation of 18 U.S.C. § 2.
Five of those named in the indictments were tried and convicted and are before us on this appeal. Defendant Mankani was tried by a jury and the other four defendants had bench trials before the United States District Court for the District of Vermont (Coffrin, C.J.) on stipulated facts. Mohan Mankani was convicted on all four counts and received two concurrent 12 year terms, two concurrent five year terms and 20 years on special parole. Kenneth R. Norris, Joseph Fortin and Sally Edith each were convicted on Counts 2 (conspiracy) and 4 (aiding and abetting) and sentenced to two concurrent two year terms of imprisonment. Peter C. MacFarlane was found guilty on Counts 1, 2 and 4, sentenced to two concurrent 15 year terms and a concurrent five year term and fined $50,000. Of the other four individuals charged, Gilles Stanton has never been brought before a court in the United States; William Sturgeon and Harold Raxlen were both convicted under Counts 2 and 4 and received a two and a half year and two year term respectively. Both filed but later withdrew their appeals. And, finally, Nizarali Hamirani pled guilty to Count 1 and was sentenced to 13 months in prison pursuant to a plea agreement under which he appeared as a government witness, and the remaining counts against him were dismissed.
We recite generally some of the factual background, leaving until later the specific details to be sketched in where appropriate to the discussion. During the spring and summer of 1982 the Royal Canadian Mounted Police (RCMP) suspected that MacFarlane and Stanton, both Canadians, were planning to import hashish into Canada. The RCMP obtained court orders permitting it to intercept these two suspects' telephone calls in order to obtain further information. During the late summer of 1982 nearly two tons of hashish arrived at Houston, Texas from Bombay, India in three separate shipments. It was concealed in eight -- seven foot long -- hefty and nearly impregnable steel cylinders. weighing 500 pounds apiece. After clearing Customs the three shipments were combined and flown by Flying Tiger Lines to John F. Kennedy International Airport in New York where a number of people, including some of these defendants, had been waiting for them to arrive.On Wednesday September 8, following the Labor Day weekend, the eight cylinders were picked up at a warehouse by defendant MacFarlane, who had rented a forklift to load the cylinders on a rented truck. MacFarlane then took the cylinders by truck to Bakersfield, Vermont. His destination was a small farm with a house and barn. Defendants Fortin and Edith leased and occupied the first two floors of the house. Fortin also rented a portin of the barn.
MacFarlane arrived late Wednesday night at the Bakersfield farm with the cylinder-laden truck. Opening the cylinders and extracting the hashish proved to be a formidable task, despite the use of various pieces of equipment that Fortin had rented to assist in the operation. Defendants Norris and Raxlen had also purchased a hydraulic press and ram for repackaging the hashish after it was removed from the cylinders.
On Friday September 10 defendants Mankani and Hamirani flew from New York, where they had been waiting with MacFarlane for the hashish to arrive from Texas, to Burlington, Vermont and checked into a local hotel. They were assigned Room 128. Mankani made a telephone call to Stanton in Montreal that was intercepted by the RCMP who immediately notified the United States Drug Enforcement Administration (DEA) and Vermont State Police. DEA Agent Handoga went to the hotel and commenced aural surveillance of Room 128. He was able to do this by taking the adjoining room and placing his ear against a pre-existing hole in the wall between the two rooms. The hole was the result of a change the hotel had previously made in its room telephone service. Its visibility from the room rented by Mankani and Hamirani was blocked by a nightstand, except for approximately two hours on Monday night, September 13, when Mankani moved the stand. That same night, MacFarlane joined Mankani and Hamirani and the three of them had an extended conversation that lasted until 2:30 a.m. the following morning. Agent Handoga overheard most of this conversation.
While MacFarlane was talking in Room 128, another DEA agent found MacFarlane's car in the parking lot and put a beeper on it so that when MacFarlane left the hotel later, he was tailed by a car full of police officers and kept under observation by police helicopter. When MacFarlane arrived at the Bakersfield farm, the police were close behind him. There, they took up positions of surveillance at several points from which they could observe the house and the barn. Although they could view some of the activities that took place inside the house, the officers could not see into the barn since the barn's windows were covered.
Some of the police involved in this investigation later met with and briefed DEA Agent Rabourn, the agent in charge. Based upon the information given him by these agents, Rabourn completed an affidavit for a search warrant seeking authorization for the officers to search the house and barn at Bakersfield for hashish, proceeds, tools, invoice records and other documentary evidence of an illegal drug operation. Having obtained the warrant, Rabourn and his men executed it on Tuesday Spetember 14, at which time they seized all evidence and arrested Raxlen, Edith, Norris, MacFarlane and Sturgeon. Mankani was apprehended later at the hotel, and Fortin submitted himself to the court's jurisdiction in response to a summons.
The five defendants raised several issues. Only three warrant discussion: whether the aural intrusion of the DEA agent into the hotel room where defendants MacFarlane and Mankani discussed the crime violated these defendants' Fourth Amendment right to privacy; whether there was probable cause to support the issuance of this search warrant; and, whether defendant Edith's guilt was proven beyond a reasonable doubt.
II Whether Eavesdropping Violated Fourth Amendment
The most troublesome issue on this appeal is the one raised by defendants Mankani and MacFarlane. It questions the constitutionality of Agent Handoga's eavesdropping on their conversation in the Burlington hotel by putting his naked ear against a hole in the wall between his room (130) and defendants' room (128). Concededly, a search warrant was not obtained for this intrusion. Whether overhearing this conversation constituted an unlawful search or seizure in violation of Fourth Amendment rights depends on whether these defendants under the circumstances had a reasonable expectation of privacy. If MacFarlane and Mankani had a reasonable expectation of privacy in their conversation in the Sheraton Hotel room, then the warrantless ...