JOSÉ A. CABRANES, Circuit Judge:
Defendant-appellant Stephen Lee ("Lee" or "defendant"), an American citizen, appeals from a February 3, 2012 amended judgment of conviction entered by the United States District Court for the Eastern District of New York (Allyne R. Ross, Judge ). In this appeal we consider: (1) whether the District Court erred in denying Lee's motion to suppress evidence
As a result, we hold that the District Court correctly denied Lee's motion to suppress the fruits of the foreign wiretaps and his motion to compel the documentation underlying the foreign wiretap orders. We also hold that Lee's amended judgment of conviction was supported by sufficient evidence and that the District Court properly admitted expert testimony at Lee's trial regarding the values and quantities of marijuana generally used by drug traffickers in the course of distribution. Accordingly, we affirm the amended judgment of the District Court.
Following a jury trial, Lee was convicted of (1) conspiring to distribute 1,000 kilograms or more of marijuana knowing that it would be unlawfully imported into the United States, in violation of 21 U.S.C. §§ 963, 959(c), and 960(b)(1)(G); and (2) conspiring to import 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 963, 960(a)(1). The jury acquitted Lee on two other counts, relating to the importation and distribution of a single load of marijuana in October 2007.
Prior to his trial, Lee was the subject of parallel investigations in the United States and Jamaica. It is undisputed that significant, formalized law enforcement cooperation existed between the two countries in the pursuit of drug trafficking investigations. The two nations signed a Memorandum of Understanding ("MOU") in 2004 to establish a program in which Jamaican law enforcement officers, inter alia, "would monitor intercepted phone conversations authorized by Jamaican court orders for purposes of both countries gathering evidence or leads to obtain evidence in narcotics investigations." To this end, the United States agreed to provide surveillance equipment and training to officers for a Jamaica Constabulary Force Narcotics Division Vetted Unit ("VU"). The MOU likewise contemplated that the Jamaican government would provide the fruits of wiretaps to the United States in a format (i.e., on a disc) that the Drug Enforcement Agency ("DEA") could use as evidence in American courts.
In May 2006, the VU began investigating shipments by an international marijuana trafficking organization of which Lee was a member, and eventually seized a large shipment of the drug bound for the United States in September 2006. The VU notified the DEA of this seizure, and the DEA began investigating the same organization as well. In the months that followed, the VU and DEA ran parallel investigations of this organized marijuana trafficking activity, which included shipments originating in Jamaica and arriving
During the course of a subsequent investigation, which took place from October 2006 to February 2009, Jamaican authorities, with authorization from that country's Supreme Court, intercepted wire communications on several telephones in Jamaica. Lee was not a target of this surveillance, but he was captured speaking about drug shipments to individuals in Jamaica who were targets. Some conversations intercepted by Jamaican authorities were used to obtain further electronic surveillance warrants in the United States directed at other members of the marijuana trafficking organization; intercepted conversations were also presented to the grand jury in the proceedings that led to indictments against Lee. Lee sought to suppress the government's recordings of the intercepted conversations at his trial in the Eastern District of New York, claiming that Jamaican authorities had acted as "virtual agents" of the DEA. Relying on our decision in United States v. Maturo, 982 F.2d 57, 60 (2d Cir.1992), the District Court denied Lee's suppression motion, reasoning that "the mere fact that an MOU existed, information was shared and the DEA provided money, training and equipment does not warrant a finding of agency" between the DEA and Jamaican law enforcement.
Lee also moved to compel the government to disclose the application materials submitted by Jamaican law enforcement to courts in that country requesting authority to conduct electronic surveillance. Specifically, Lee sought these materials for the purpose of demonstrating that an agency relationship existed between American law enforcement and its Jamaican counterparts. The government averred that the materials were not in its possession and that, despite diligent efforts, it had been unable to obtain them. Relying on our decision in United States v. Paternina-Vergara, 749 F.2d 993, 997-98 (2d Cir. 1984), the District Court reasoned that, even if American and Jamaican law enforcement officials had jointly investigated Lee, American law enforcement officials would still only be required to make a "good faith" effort to obtain items in the possession of a foreign government and that, on the facts of this case, the government had fulfilled that obligation.
This appeal followed.
On appeal, Lee asserts that the District Court erred by failing to suppress the
We first consider whether the District Court erred by failing to suppress evidence obtained abroad by the VU and other Jamaican law enforcement agencies. In addressing this claim, we review the District Court's factual findings for clear error, viewing the evidence in the light most favorable to the government, and review the District Court's legal conclusions de novo. See United States v. Moreno, 701 F.3d 64, 72 (2d Cir.2012).
More than two decades ago, we held that "[w]hen conducted in this country, wiretaps by federal officials are largely governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, see 18 U.S.C. §§ 2510-2520," but that this statute "does not apply outside the United States." Maturo, 982 F.2d at 60. It is also well-established that the Fourth Amendment's exclusionary rule, which requires that evidence seized in violation of the Fourth Amendment must be suppressed, generally does not apply to evidence obtained by searches abroad conducted by foreign officials. See United States v. Janis, 428 U.S. 433, 455 n. 31, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976) ("It is well established, of course, that the exclusionary rule, as a deterrent sanction, is not applicable where a private party or a foreign government commits the offending act."). We held as long ago as 1975 that "information furnished [to] American officials by foreign police need not be excluded simply because the procedures followed in securing it did not fully comply with our nation's constitutional requirements." United States v. Cotroni, 527 F.2d 708, 711 (2d Cir.1975). This is so even when "the persons arrested and from whom the evidence is seized are American citizens." Stowe v. Devoy, 588 F.2d 336, 341 (2d Cir.1978). Significantly, in this context, the Fourth Amendment's exclusionary rule does not serve the deterrence purpose for which it was designed because "the actions of an American court are unlikely to influence the conduct of foreign police." United States v. Valdivia, 680 F.3d 33, 51 (1st Cir.2012) (quotation marks omitted); see also Cotroni, 527 F.2d at 712 ("The exclusionary rule is intended to inculcate a respect for the Constitution in the police of our own nation. Since it has little if any deterrent effect upon foreign police, it is seldom used to bar their work product." (internal citations omitted)); United States v. Barona, 56 F.3d 1087, 1091 (9th Cir. 1995) ("Neither our Fourth Amendment nor the judicially created exclusionary rule applies to acts of foreign officials." (quotation marks and alteration omitted)); United States v. Mount, 757 F.2d 1315, 1317-18 (D.C.Cir.1985) ("[T]he exclusionary rule does not normally apply to foreign searches conducted by foreign officials.").
Lee claims that the close, ongoing, and formalized collaboration between the
While no one factor — or combination of factors — is dispositive, we conclude that the Jamaican law enforcement officials here did not act as "virtual agents" of the United States. Accordingly, we hold that the District Court did not err in denying Lee's motion to suppress evidence gathered from the Jamaican wiretaps.
Lee also argues that the District Court erred in denying his motions to compel American law enforcement officials to turn over documents underlying the Jamaican foreign wiretap applications. We review for abuse of discretion the order denying Lee's motion to compel. See, e.g., United States v. Rigas, 583 F.3d 108, 125 (2d Cir.2009). We have repeatedly explained that the term of art "abuse of discretion" includes errors of law, a clearly erroneous assessment of the evidence, or "a decision that cannot be located within the range of permissible decisions." In re Sims, 534 F.3d 117, 132 (2d Cir.2008) (internal quotation marks omitted).
As an initial matter, we note that Lee was not entitled to these documents under any arguable rule of discovery because these materials were not even within the "government's possession, custody, or control." Fed.R.Crim.P. 16(a)(1)(E); see also id. 26.2(a);
In sum, Lee has not demonstrated any basis upon which to suppress evidence derived from foreign electronic surveillance because of an alleged failure by American law enforcement officials to secure the documents from a foreign government. Accordingly, the District Court did not err in denying Lee's motion to compel the retrieval and submission of documentation submitted to a Jamaican court in support of the wiretap orders executed against him abroad.
Finally, Lee (1) challenges the sufficiency of the evidence presented to convict him at trial, arguing that "[a]lthough there clearly was an international marijuana conspiracy, the evidence was insufficient to establish beyond a reasonable doubt that [he] was a member in it," Appellant's Br. 37; and (2) claims that the District Court erred in permitting the testimony of a DEA agent who testified as "an expert in the pricing of marijuana and the personal versus distribution use and source countries" of the drug. Appellant's Br. 71 (quotation marks omitted). Specifically with regard to the second point, Lee argues that the DEA agent's testimony should have been excluded because it was
"We review de novo challenges to the sufficiency of the evidence underlying a criminal conviction," United States v. Desposito, 704 F.3d 221, 226 (2d Cir.2013), but a defendant "bears a heavy burden," United States v. Coplan, 703 F.3d 46, 62 (2d Cir.2012) (quotation marks omitted), because we review evidence on a sufficiency challenge "in the light most favorable to the government and draw[] all inferences in favor of the government," United States v. Henry, 325 F.3d 93, 103 (2d Cir.2003). "[W]e will uphold [a] judgment[] of conviction if `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Coplan, 703 F.3d at 62 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)). Furthermore, we review a district court's decision to admit or exclude expert testimony for an abuse of discretion. See United States v. Williams, 506 F.3d 151, 159-60 (2d Cir.2007); cf. In re Sims, 534 F.3d at 132.
Having conducted an independent and de novo review of the record, we conclude that the District Court (1) correctly found that the evidence presented at trial was sufficient to convict Lee of the charged conspiracies, and (2) did not err in admitting expert testimony by a DEA agent on the values and quantities of marijuana generally used by drug traffickers.
We have considered all of Lee's arguments on appeal and find them to be without merit. To summarize, we hold that:
For the reasons stated above, we
Yousef, 327 F.3d at 112 n. 46. In fact, the government in this case specifically informed Lee of the availability of letters rogatory in a letter to the District Court dated April 19, 2010, which was served on Lee's counsel. Despite this notification, the record does not suggest that Lee ever applied for letters rogatory to request the foreign materials he sought, and — perhaps more importantly — Lee's potential to do so in no way suggests that sending the letters would have induced the Jamaican government to produce the warrant applications.
Fed.R.Evid. 702.
Fed.R.Evid. 403.