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United States v. Larios

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Before Lynch, Chief Judge, Gajarsa *fn1 and Lipez, Circuit Judges.

Benito Robles, Jose Larios and Julio Agron (collectively, “appellants”) were captured on audio/videotape participating in a controlled cocaine transaction in a motel room with an undercover agent. Robles and Larios entered guilty pleas to charges of conspiracy to distribute cocaine and possession of cocaine with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1), and, as to Robles, distribution of cocaine, 21 U.S.C. § 841(a)(1). They were each sentenced to 120 months in prison. Agron proceeded to trial and was convicted of conspiracy to distribute cocaine and possession of cocaine with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1), and was sentenced to a prison term of 168 months.

On appeal, Robles and Larios contend that the district court erred in admitting the audio recording at sentencing, because the unauthorized recording was obtained in violation of the federal wiretap statute, 18 U.S.C. §§ 2510-22 (enacted as Title III of the Omnibus Crime Control and Safe Streets Act) (“Title III”). Agron contends, on the same basis, that the court erroneously admitted the audio recording at trial. Appellants contend that they had a reasonable expectation of privacy in the motel room where the controlled transaction took place, and therefore the audio recording was an “oral communication” protected by Title III. The government argues that all three appellants lacked a legitimate expectation of privacy and therefore cannot invoke the protection of Title III. Alternatively, it argues that, as to Robles and Larios, the audio recording was admissible at sentencing as impeachment evidence.

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