In U.S. v. Emmanuel, No. 07-10378 (April 21, 2009), the Court affirmed drug trafficking convictions.
The Court rejected the argument that a wiretap of the defendants under Bahamian law so "shocked the conscience" as to warrant suppression of its fruits, because no neutral magistrate need approve the wiretap. The Court noted that the "shock the judicial conscience" standard is meant to protect against conduct that violates "fundamental international norms of decency." Fundamental international norms of decency do not require judicial review in all jurisdictions of applications to intercept wire communications. Therefore, the Bahamian wiretap is not excludable.
The Court also rejected the argument that the United States so involved itself with the Bahamian government in the wiretap that the Fourth Amendment applied. The Court noted that Emmanual was a nonresident alien entirely outside the United States. The Fourth Amendment therefore could not apply, regardless of United States involvement. The Court distinguished U.S.v. Behety, on the ground that it involved a resident alien and a U.S. citizen. The Fourth Amendment exclusionary rule does not apply to the interception of wire communications in the Bahamas of a Bahamian resident.
The Court rejected hearsay and Confrontation Clause challenges to the admission at trial of the Bahamian government’s approval of the wiretap, finding that admission of this evidence, even if error, did not substantially affect the trial.
The Court also found no prejudice in the district court’s admission of police officer testimony that he recognized the defendant’s voice from having heard it at the defendant’s condition of bail hearing. The comment was a brief reference during a relatively long trial.
The government offered a police officer as an expert to interpret drug codes and jargon used in taped conversations. The Court rejected Emmanuel’s Rule 702 challenge to this testimony, finding that drug codes and jargon are proper subjects of expert testimony. The Court recognized that such testimony "may unfairly provide the government with an additional summation by having the expert interpret the evidence, and may come dangerously close to invading the province of the jury. Here,"most" of the testimony "was specific and closely related to [the] interpretation of drug codes and jargon." But "some" of the testimony "went beyond interpreting code words to interpret conversations as a whole." Nevertheless, it was unlikely this affected Emmanuel’s substantial rights, because the judge emphasized that the jury will determine whether the testimony is credible. In addition, based on Emmanuel’s own incriminating statements on tape, the jury "could have easily interpreted the coded conversations as involving drugs based on other evidence in the case, including actual seizures of drugs and drug money and testimony from coconspirators." Any error, therefore, did not require reversal.
