Unpublished Disposition, 874 F.2d 817 (9th Cir. 1989)

MEMORANDUM^* 

Errol F. Remsing appeals the judgment and sentence of the district court following his conviction for violating state and federal wildlife laws. He contends that the testimony of five prosecution witnesses was tainted by illegal searches and should have been excluded. Remsing also argues that the district court committed reversible error by considering at sentencing evidence which had been suppressed at trial. We affirm.

BACKGROUND

In April 1986, Alaska state law enforcement officers received a tip that Remsing was engaging in illegal hunting activities. State officers initiated surveillance of Remsing's two aircraft, including implantation of electronic tracking devices. An undercover agent sent to Remsing's house in early May 1986 met David Hedges, a military man from New Mexico. Hedges discussed Remsing's hunting activities with the agent, disclosing that two Mexican hunters were arriving soon to hunt with Remsing.

On May 15, ground surveillance at the airstrip observed Remsing and three male companions depart in Remsing's two airplanes. The electronic tracking devices enabled officers to follow the aircraft to the Noatak National Preserve. A subsequent ground search yielded physical evidence of a bear-kill at that location. Remsing and his companions returned to the airstrip at 1 a.m. on May 16. The surveillance officers observed a large white bag being unloaded from one of the planes. Later that day Remsing and one of his companions, subsequently identified as Joseph LoMonaco, brought the white bag to the Fish and Game office. The bag contained two grizzly bear hides. The men reported that they had shot the bears on May 14 on the Charley River.

Surveillance confirmed that neither of Remsing's aircraft had flown on May 14. The officers suspected Remsing of unlawfully assisting nonresidents in a bear hunt and unlawfully hunting the same day as airborne. In January 1987, officers seized diaries, log books, and photographs from Remsing's home and office pursuant to a state search warrant. These items gave complete details of the illegal May 15 bear hunt. Also in late January, federal agents obtained a warrant to search LoMonaco's home for evidence of unlawful transactions in marine mammal parts. Agents executing that warrant made several "plain view" seizures of evidence related to the bear hunt.

In June 1987, Remsing, LoMonaco, Juan Gonzalez Loaiza (Gonzalez), and Jorge Escalante Pratt (Escalante) were charged with conspiring to violate state and federal wildlife laws. The charges against Remsing included misdemeanor counts of aiding a nonresident to hunt bear without a license or guide, hunting bear the same day as airborne, and hunting without the proper permit. Remsing was also charged with feloniously exporting unlawfully taken wildlife. That same month Hedges pleaded guilty to a misdemeanor count in connection with his bear hunts and agreed to testify if needed.

Remsing moved to suppress all items seized from his home under the state search warrant, as well as the results of aerial surveillance of his aircraft by means of the electronic tracking device. His three codefendants moved to suppress the same evidence. LoMonaco also moved to suppress evidence seized from his home under the federal search warrant. Although the magistrate recommended suppression of the evidence as to all defendants, the district court suppressed evidence obtained from Remsing only as to him and suppressed evidence obtained from LoMonaco only as to him.¹ 

Within two weeks of the district court's denial of their motions to suppress, Escalante, Gonzalez, and LoMonaco agreed to plead guilty to one misdemeanor count and to testify against Remsing. None of the three men knew the precise location of the grizzly bear hunt. Although the government knew the location from its aerial surveillance, that evidence had been suppressed. Escalante, Gonzalez, and LoMonaco gave prosecutors general information about the distance and direction of their May 15 flight. David James, a state game biologist, was given this information and photographs of the scene seized from LoMonaco. With the aid of an experienced pilot, James flew to the area and located the exact spot depicted in the photographs.

James, Hedges, LoMonaco, Escalante, and Gonzalez testified at Remsing's trial. Remsing moved to suppress the testimony of all the men as tainted by the illegal seizures and surveillance. The district court admitted the testimony, finding the testimony sufficiently free of any taint. The jury convicted Remsing on all counts.

The district court ruled that its instructions were inadequate to ensure a unanimous verdict on the felony conspiracy count and therefore sentenced Remsing on that count as a misdemeanor. At sentencing, the district court, over Remsing's motion to strike, considered evidence obtained from the illegal search of Remsing's home. The court sentenced Remsing to five months incarceration and five years probation and imposed a $10,000 fine. Remsing timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

STANDARD OF REVIEW

A district court's finding that testimony is sufficiently attenuated from an illegal search so as to dissipate the taint is reviewed de novo. See United States v. McConney, 728 F.2d 1195, 1202-14 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). Although the analysis does include factual inquiries, the Supreme Court has held that "considerations relating to the exclusionary rule and the constitutional principles which it is designed to protect must play a factor in the attenuation analysis...." United States v. Ceccolini, 435 U.S. 268, 279 (1978). Since attenuation is a mixed question of law and fact requiring consideration of underlying policies and implicating constitutional rights, de novo review is appropriate. See McConney, 728 F.2d at 1203-05. Any underlying findings of fact made by the district court, however, will be upheld unless clearly erroneous. See United States v. Hooton, 662 F.2d 628, 632 (9th Cir. 1981), cert. denied, 455 U.S. 1004 (1982).

The district court has broad discretion to consider a wide range of factors in determining an appropriate sentence and its decision is reviewable only for an abuse of discretion. Jones v. United States, 783 F.2d 1477, 1479-80 (9th Cir. 1986); United States v. Givens, 767 F.2d 574, 585 (9th Cir.), cert. denied, 474 U.S. 953 (1985).

DISCUSSION

I. Testimony of LoMonaco, Escalante, and Gonzalez

Remsing argues that the district court erred in allowing the government to use the testimony of his coconspirators who testified pursuant to plea bargains. He claims that the testimony was "fruit of the poisonous tree" because the government learned the identities and involvement of the coconspirators through the evidence illegally seized from his home and then used that evidence to coerce the coconspirators into testifying.

The exclusionary rule bars the use of evidence obtained in violation of the fourth amendment in a criminal trial against the victim of the illegal search and seizure. Weeks v. United States, 232 U.S. 383, 398 (1914); Mapp v. Ohio, 367 U.S. 643, 655 (1961). The rule "applies not only to the illegally obtained evidence itself, but also to other incriminating evidence derived from the primary evidence." Nix v. Williams, 467 U.S. 431, 441 (1984). Despite the constitutional violation, however, the evidence may still be admissible if it has an attenuated link to the illegally obtained evidence. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).

In determining whether the connection between the illegality and the testimony is sufficiently attenuated, the Supreme Court has "recognized that the cost of excluding live-witness testimony is often greater than the loss of physical evidence, so 'a closer, more direct link' between the illegality and the live testimony is required" to warrant exclusion. United States v. Kandik, 633 F.2d 1334, 1336 (9th Cir. 1980) (quoting United States v. Ceccolini, 435 U.S. 268, 278 (1978)).

The district court made the following findings of fact: (1) although the illegally obtained evidence played a "moderate" role in the coconspirators' decision to testify, a variety of other factors influenced their decision, including avoiding the expense, inconvenience, and risks of going to trial; (2) the proximity between the illegal searches and the coconspirators' decision to cooperate was remote; and (3) the police motivation in conducting the search was to obtain evidence against Remsing, not to force the coconspirators to testify.

We find that the coconspirators' testimony was sufficiently attenuated from the illegal search. The coconspirators exercised their own free will in deciding whether to plead guilty or stand trial. Although their decision may have been influenced somewhat by the illegally seized evidence, many other considerations also affected their decision. Furthermore, the basic purpose of the exclusionary rule, deterring police misconduct, would not be served by excluding this testimony. The police motivation in conducting the search was to find evidence against Remsing, not to force the coconspirators to testify. Thus, the testimony was properly admitted.

At trial Hedges testified about a hunting trip he took with Remsing just prior to Remsing's hunt with LoMonaco, Escalante, and Gonzalez. Hedges testified that Remsing had initially agreed to use his own hunting tag for any bears Hedges killed, but then told Hedges they would use someone else's tag because Remsing needed his own to cover an upcoming hunt with some Mexicans.

Remsing contends that the illegally obtained evidence was used to coerce Hedge's testimony and, therefore, suppression was required. Remsing also argues that Hedges's testimony amounted to evidence of an uncharged conspiracy and its admission was prejudicial error. The government contends that the testimony was proper under Fed.R.Evid. 404(b) to show Remsing's motive, opportunity, intent, plan, scheme, knowledge, modus operandi, and absence of mistake or accident in his hunt with LoMonaco, Escalante, and Gonzalez.

The district court found that Hedges's identity and involvement were discovered independently of any illegal evidence and that the critical factor in his decision to plead guilty and testify was the potential risk to his military career. Thus his testimony was sufficiently attenuated from any taint.

Hedges's testimony bears on Remsing's intent and plan to use his tag to cover any bears killed by Escalante or Gonzalez. The testimony was proper under Rule 404(b), see United States v. Testa, 548 F.2d 847, 851 (9th Cir. 1977), and we may affirm its admission regardless of the ground relied upon by the district court, United States v. Best, 573 F.2d 1095, 1100-01 (9th Cir. 1978); United States v. Bacall, 443 F.2d 1050, 1055 (9th Cir.), cert. denied, 404 U.S. 1004 (1971).

The location of the kill site in a national preserve was an element in some of the charges against Remsing. Although federal agents knew the location from aerial surveillance, that evidence had been suppressed. James testified at trial about the location of Remsing's hunt. James's knowledge derived from photographs seized from LoMonaco and clues given by the coconspirators.

Remsing argues that the initial illegal surveillance directed agents to seize photographs from LoMonaco's home and then to seek out James, a person familiar with the Noatak region. Remsing contends that the testimony was inadmissible because the illegal surveillance gave significant direction and impetus to the subsequent investigation.

Because surveillance had already revealed the kill site, the agents had no great incentive to seek out additional proof of the location. The photographs assumed importance only after surveillance evidence was suppressed and the coconspirators agreed to testify. Suppression is inappropriate because the illegal surveillance played a de minimis role in the discovery of the photographs and James's testimony. See Bacall, 443 F.2d at 1056 (suppression inappropriate even when illegally seized evidence is a "but for" source of additional evidence if the illegal evidence played insubstantial role).

The presentence report in this case contained material from Remsing's diaries, pilot logs, and other information previously suppressed at trial. Remsing argues that the district court committed reversible error by considering this evidence at sentencing.

This court has held that whether the exclusionary rule should apply at sentencing depends on "whether the rule's purpose of deterring unlawful police conduct would be sufficiently furthered by exclusion to outweigh any detrimental effects of excluding the evidence." United States v. Larios, 640 F.2d 938, 941 (9th Cir. 1981). Excluding such evidence has a detrimental effect upon sentencing because " [i]t deprives the district judge of information necessary to effectuate the federal policy of individualized sentencing." United States v. Vandemark, 522 F.2d 1019, 1021 (9th Cir. 1975).

In Remsing's case, the police obtained a warrant to search his home, although the affidavit supporting the warrant apparently lacked probable cause. There is no suggestion that the police conducted the search to influence sentencing. The district court properly considered the illegally seized evidence.

CONCLUSION

The judgment and sentence of the district court is AFFIRMED.