United States of America v. Robert W. Lee, Sr

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 01-1629
UNITED STATES OF AMERICA
v.
ROBERT W. LEE, SR.,
Appellant
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY
(D. C. Criminal No. 99-640-1)
District Court Judge: John W. Bissell, Jr.
Argued September 20, 2002
Before: SCIRICA, Chief Judge, and
ALITO, and MCKEE, Circuit Judges.
(Opinion Filed: February 20, 2004)
GERALD KROVATIN (argued)
Krovatin & Associates
744 Broad Street, Suite 1901Newark, NJ
07102
Counsel for Appellant
GEORGE S. LEONE
Chief, Appeals Division
MICHAEL M ARTINEZ (argued)
Assistant U.S. Attorney
U.S. Department of Justice
970 Broad Street
Newark, NJ 07102-2535
Counsel for Appellee
OPINION OF THE COURT
ALITO, Circuit Judge:
This is an appeal by
defendant Robert W. Lee, Sr. (“Lee”) from
a judgment in a criminal case. Lee was
indicted on charges stemming from the
alleged payment of bribes by boxing
promoters to Lee and other officials of the
International Boxing Federation (“IBF”).
After a jury trial, Lee was convicted of one
count of conspiracy to engage in money
laundering, in violation of 18 U.S.C. §
1956(h); three counts of interstate travel in
aid of racketeering, in violation of 18
U.S.C. § 1952 (the “Travel Act”) and 18
U.S.C. § 2; and two counts of filing false
tax returns, in violation of 26 U.S.C. §
7206. He was sentenced to a concurrent
term of 22 months’ imprisonment on each
count and was fined $25,000.
In this appeal, Lee argues (1)

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that video tapes that show him receiving
money from a confidential government
informant violated his Fourth Amendment
rights and should have been suppressed,
(2) that the District Court misinstructed the
jury concerning the meaning of the “duty
of fidelity” under the New Jersey
commercial bribery statute, N.J.S.A.
2C:21-10, (3) that his Travel Act and
money laundering conspiracy convictions
must be reversed because they are
predicated upon the New Jersey
commercial bribery statute, and there is an
insufficient nexus between his conduct and
New Jersey to permit the application of the
New Jersey statute, (4) that his money
laundering conviction should be reversed
because the evidence at trial did not prove
the existence of a single conspiracy, (5)
that two of the Travel Act counts were
impermissibly amended at trial, and (6)
that the District Court erred when it
imposed concurrent sentences of 22
months’ imprisonment on the tax counts.
We affirm.
I.
Lee was a cofounder and
president of the IBF, an organization that
crowns international boxing champions
and publishes ratings of boxers within
different weight divisions. The ratings are
published monthly from the IBF
headquarters in East Orange, New Jersey.
The primary function of the ratings is to
determine which boxers will fight in
upcoming IBF championship bouts.
During the period relevant to this appeal,
Lee served on the IBF Executive Board
and various IBF committees, including the
championship committee, chaired by Don
“Bill” Brennan, and the ratings committee,
chaired by C. Douglas Beavers.
In May 1996, the Federal
Bureau of Investigation received
information that boxing promoters were
paying certain IBF officials in order to
receive more favorable IBF ratings for
their boxers. Beavers was questioned and,
in May of 1997, chose to cooperate with
the FBI. He told investigators that he had
solicited and received bribes from boxing
promoters and that these bribes had been
divided equally among himself, Brennan,
Lee, and Lee's son, Robert W. Lee, Jr.
("Lee, Jr."). Beavers, who is based in
Portsmouth, Virginia, further testified that
h e h a d h e l d r eg u l a r t e le p h o n e
conversations with Lee, who works out of
the IBF headquarters in East Orange,
regarding strategies for maximizing
payment amounts, methods for laundering
bribes that were received as checks1, and
arrangements for Lee to travel from New
1 Because of the difficulty of
transporting large amounts of cash from
South America, bribes from South
American promoters were sometimes
received in the form of checks. These
were either hand delivered or mailed to
Beavers, who would then deposit the
checks into a bank account belonging to
the Portsm outh Ath letic C lub, a
gymnasium owned by Beavers. Once the
checks had cleared, Beavers would then
retain his share and distribute the
remainder of the bribe to Lee in the form
of cash.

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Jersey to Virginia to collect his share of
the bribes.
With Beavers’ cooperation,
the FBI made audio and video recordings
of three meetings between Beavers and
Lee that took place in Portsmouth,
Virginia, on June 9, 1997, December, 18,
1997 and October 21, 1998. The meetings
were held in a hotel suite rented by
Beavers for Lee in the Portsmouth Holiday
Inn and were electronically monitored and
recorded using equipment installed in the
living room of the suite by the FBI prior to
Lee’s arrival. This equipment consisted of
a concealed camera and microphone that
transmitted video and audio signals to a
monitor and recorder located in an
adjacent room. The FBI did not obtain a
warrant authorizing the installation or use
of the equipment but instead relied on
Beavers’ consent. The government agents
located in the room next to Lee’s suite
were instructed to monitor activity in the
corridor to determine whether or not
Beavers had entered Lee’s rooms. The
agents were further instructed to switch on
the monitor and recorder only when
Beavers was in the suite and that, at all
other times, the monitor and recorder were
to be switched off. During the December
1997 meeting, Beavers was recorded
handing Lee cash that had originated as a
bribe paid to the IBF’s South American
representative, Francisco “Pancho”
Fernandez, by a Colombian boxing
promoter, Billy Chams.
On November 4, 1999, a
federal grand jury in the District of New
Jersey indicted Lee, Lee, Jr., Brennan and
Fernandez on 35 counts related to the
receipt of bribes from boxing promoters.
As noted, Lee Sr. was convicted on six
counts but acquitted on the rest. Lee, Jr.
was acquitted on all counts. The case
against Brennan was dismissed because of
his ill health and age, and Fernandez
remains a fugitive outside the United
States.
II.
A.
Lee challenges the District
Court’s admission into evidence of tapes
of meetings in his hotel suite. Lee
contends that the monitoring and recording
of these meetings violated his Fourth
A m e n d m e n t r i g ht s b e c a us e t h e
government did not obtain a warrant.
Lee’s argument, however, is inconsistent
with well-established Fourth Amendment
precedent concerning the electronic
monitoring of conversations with the
consent of a participant.
In United States v. Hoffa,
385 U.S. 293 (1967), a confidential
government informant named Partin met
with the defendant in the defendant’s hotel
suite and elsewhere and testified about
those conversations at trial. The defendant
argued that Partin had conducted an illegal
search for verbal evidence and that,
because the defendant was unaware of
Partin’s role as an informant, the defendant
had not validly consented to his entry into
the suite. Id. at 300. The Supreme Court
rejected this argument, holding that the
defendant had “no interest legitimately
protected by the Fourth Amendment.” Id.

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at 301-02. The Court concluded that the
Fourth Amendment does not protect “a
wrongdoer’s misplaced belief that a person
to whom he voluntarily confides his
wrongdoing will not reveal it.” Id. at 302.
Although Hoffa involved testimony
about conversations and not electronic
recordings of conversations, the Supreme
Court in later cases drew no distinction
between the two situations. See United
States v. Caceres, 440 U.S. 741, 744
(1979); United States v. White, 401 U.S.
745, 752 (1971) (plurality). As the Court
in Caceres put it,
Concededly a police agent
who conceals his police
connections may write down
f o r o f f i c ia l u s e h is
c o n v e r s a ti o ns w i t h a
defen d a n t a n d t e stify
concerning them, without a
warrant authorizing his
e n c o u n t e r s w i t h t h e
defendant and without
otherwise violating the
latter’s Fourth Amendment
rights. Hoffa v. United
States, 385 U.S., at 300-303.
For constitutional purposes,
no different res ult is
required if the agent instead
of immediately reporting
a n d t r a n s c r ib i n g h i s
c o n v e r s a t i o n s w i t h
d e f e n d a n t , e it h e r ( 1 )
simultaneously records them
with electronic equipment
which he is carrying on his
person; (2) or carries radio
e q u i p m e n t w h i c h
simultaneously transmits the
conversations either to
recording equipment located
elsewhere or to other agents
monitoring the transmitting
frequency . . . .
440 U.S. at 750-51 (quoting United States
v. White, 401 U.S. 745, 749 (1971))
(citation omitted)). The Court added that
it had “repudiated any suggestion that [a]
defendant had a ‘constitutional right to rely
on possible flaws in the agent’s memory,
or to challenge the agent’s credibility
without being beset by corroborating
evidence that is not susceptible of
impeachment.’” Id. at 750 (quoting Lopez
v. United States, 373 U.S. 427, 439
(1963)). In short, the Court adopted the
principle that, if a person consents to the
presence at a meeting of another person
who is willing to reveal what occurred, the
Fou rth A m e n d m en t p e rm its th e
government to obtain and use the best
available proof of what the latter person
could have testified about. This principle
appears to doom Lee’s argument here.
Lee argues, however, that neither
the Supreme Court nor our court has
e x t e n d e d t h is p r i n c i p l e t o t h e
circumstances present in this case. He
points to three factors: (1) the agents used
video rather than audio equipment; (2) the
recording occurred in Lee’s hotel room, a
place where a person has a heightened
expectation of privacy; and (3) the
monitoring equipment remained in the
room when Beavers was not present.

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In making this argument, Lee relies
on the First Circuit’s decision in United
States v. Padilla, 520 F.2d 526, 527-28 (1st
Cir. 1975), which held that the defendant’s
Fourth Amendment rights were violated
when agents placed an audio recording
device in the defendant’s hotel room and
recorded conversations between the
defendant and another person who
consented to the recordings. In reaching
this conclusion, the First Circuit expressed
concern that if law enforcement officers
were permitted to leave a monitoring or
recording device in a hotel for a lengthy
period of time the officers would be
tempted to monitor or record conversations
that occurred when no consenting
participant was present. Id. As the Court
put it,
[t]he government’s position
would turn on its head the
c a r e f u l l y t a i l o r e d
[consenting party] exception
to . . . one’s expectation of
privacy. Electronic devices
could be installed for
lengthy periods of time
w i t h o u t a n t e c e d e n t
authority, so long as only a
suspect’s conversations with
police agents were offered
in e vidence and th e
e n f o r c e m e n t o f f i c ia l s
alleged that nothing else
was recorded. Under this
approach a room or an entire
hotel could be bugged
permanently with impunity
and with the hope that some
usable conversations with
agents would occur.
Id. at 528. See also United States v.
Shabazz, 883 F.Supp. 422 (D.Minn. 1995)
(audio and video recording).
In contrast to the First Circuit, the
Second and Eleventh Circuits have held
that the Fourth Amendment is not violated
by the use of a fixed electronic device to
record a meeting between a defendant and
a person who consents to the recording.
United States v. Yonn, 702 F.2d 1341,
1346-47 & n. 5 (11th Cir. 1983); United
States v. Myers, 692 F.2d 823 (2d Cir.
1982). In Myers, a defendant was
videotaped during a meeting with a
government informant at a townhouse
maintained by the FBI. Id. at 832.
Rejecting the defendant’s Fourth
Amendment argument, the Court stated
that the defendant’s “conversations with
undercover agents in whom he chose to
confide were not privileged, and
mechanical recordings of the sights and
sounds to which the agents could have
testified were proper evidence.” Id. at
859.
In Yonn, the Eleventh Circuit
likewise held that the Fourth Amendment
was not violated when agents placed a
microphone in a motel room and
monitored and recorded the defendant’s
conversations when a person who
consented to the surveillance was present.
The Court held that “[t]he location of the
electronic equipment does not alter the
irrefutable fact that Yonn had no
justifiable expectation of privacy in his

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conversation with [the person who
consented].” 702 F.2d at 1347. The Court
also specifically rejected the reasoning of
Padilla, stating that it saw “no reason to
suppress the recording of a clearly
unprotected conversation merely because
the monitoring technique employed poses
a hypothetical risk that protected
conversations may be intercepted.” Id. at
1347 n.5.
We have considered the concern
expressed by the Padilla Court, but we
remain convinced that the present case is
governed by the well-established principle
that a person has no legitimate expectation
of privacy in conversations with a person
who consents to the recording of the
conversations. None of the three factors
on which Lee relies appears to us to be
sufficient to take this case beyond the
reach of this principle.
First, we cannot distinguish this
case on the ground that the recorded
meetings occurred in a hotel suite. What is
significant is not the type of room in which
the surveillance occurred but Lee’s action
in admitting Beavers to the room.
Although Lee had an expectation of
privacy in the hotel suite so long as he was
alone there, when Lee allowed Beavers to
enter, any expectation of privacy vis-a-vis
Beavers vanished. We note that in Hoffa
many of the conversations also occurred in
a hotel suite, but the Court nevertheless
held that the case did not involve any
legitimate Fourth Amendment interest.
385 U.S. at 296.
Second, we cannot draw a
constitutional distinction between
consensual audio and video surveillance.
The principle underlying the governing
Supreme Court cases is that if a defendant
consents to the presence of a person who
could testify about a meeting and is willing
to reveal what occurs, the defendant
relinquishes any legitimate expectation of
privacy with respect to anything that the
testimony could cover. Thus, just as Lee
gave up any expectation of privacy in the
things that he allowed Beavers to hear, Lee
also gave up any expectation of privacy in
the things that he allowed Beavers to see.
Although video surveillance may involve
a greater intrusion on privacy than audio
surveillance, the difference is not nearly as
great as the difference between testimony
about a conversation and audio recordings
of conversations. As noted, however, the
Supreme Court has not drawn any
distinction between those two types of
evidence, and we similarly see no
constitutionally relevant distin ction
between audio and video surveillance in
the present context.
Finally, we do not agree with the
First Circuit that it is appropriate to
suppress recordings of meetings between
a defendant and a cooperating individual
simply because the recording device was
placed in the room rather than on the
cooperating individual’s person. To be
sure, there are three circumstances in
which this distinction would matter for
Fourth Amendment purposes. First, if the
defendant had an expectation of privacy in
the premises at the time when the device
was installed, the entry to install the device

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would constitute a search. Second, the
cases involving consensual monitoring do
not apply if recordings are made when the
cooperating individual is not present.
Third, the logic of those cases is likewise
inapplicable if the placement of the
recording device permits it to pick up
evidence that the cooperating individual
could not have heard or seen while in the
room. Unless one of these circumstances
is present, however, it does not matter for
Fourth Amendment purposes whether the
device is placed in the room or carried on
the person of the cooperating individual.
In either event, the recording will not
gather any evidence other than that about
which the cooperating witness could have
testified.
As the government argues, the
decision in Padilla appears to be based, not
on the conclusion that the recordings in
that case had been obtained in violation of
the Fourth Amendment, but on a
prophylactic rule designed to stamp out a
law enforcement technique that the Court
viewed as creating an unacceptable risk of
abuse. Even assuming for the sake of
argument that we have the authority to
adopt such a rule2, however, we would not
do so. Although Padilla was decided more
than a quarter century ago and has not
been followed in any other circuit, we are
not aware of evidence that the installation
of recording devices to monitor meetings
attended by a cooperating individual has
led to the sort of abuse that the Padilla
Court feared. Nor is it intuitively obvious
that there is much risk of such abuse. As
noted, the Padilla Court feared that law
enforcement agents would install
electronic devices in a hotel rooms and
monitor what occurred “in the hope that
some usable conversations with agents
would occur.” 520 F.2d at 527-28.
However, there are numerous reasons to
doubt whether law enforcement is likely to
find this an alluring strategy.
First, a person who illegally
intercepts wire, oral, or electronic
communicates is subject to criminal and
civil penalties, see 18 U.S.C. §§ 2511,
2520, and a federal agent who violates the
Fourth Amendment may be sued under
Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971). Second, in
order to install a monitoring device, law
enforcement authorities or a person
cooperating with them must acquire a right
to enter the premises, such as by obtaining
a warrant or renting the premises in which
the device is to be installed. Thus, the
Padilla Court’s fear that agents might bug
“an entire hotel,” 520 F.2d at 528, and the
fear of the District Court in Shabazz that
devices could be placed in a person’s
home, see 883 F.Supp. at 425, seem
misplaced. Third, it is not clear that law
enforcement would have much to gain
from monitoring conversations that occur
when a cooperating individual is not
present. A video tape of a conversation
generally reveals whether a cooperating
individual is present, and without proof of
the presence of the cooperating individual,
the tape is inadmissible. We do not go so2But see United States v. Payner,
447 U.S. 727, 735-36 & n.8 (1980).

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far as to say that there is no risk of the type
of abuse that worried that Padilla Court,
but the risk is not great enough to justify
the holding of the Padilla Court.
In the present case, there was no
violation of Lee’s Fourth Amendment
rights. The monitoring devices were
installed in the suite’s living room at a
time when Lee had no expectation of
privacy in the premises. There is no
evidence that conversations were
monitored when Beavers was absent from
the room, and Beavers was plainly there at
the time of the incriminating meetings
shown on the tapes that were introduced at
Lee’s trial. We are satisfied that the tapes
do not depict anything material that
Beavers himself was not in a position to
hear or see while in the room. Finally, we
reject Lee ’s sug gestio n that t he
government was required, before resorting
to video surveillance, to demonstrate that
less intrusive investigative techniques
were unlikely to succeed. Although this
requirement applies to m onitorin g
governed by the federal wiretapping
statute, 18 U.S.C. § 2518(3)(c), that statute
does not apply to electronic surveillance
conducted with the prior consent of a party
to the communication. Similarly, judicial
d e c i s io n s c o nside ring a s imil a r
requirement in cases involving silent video
surveillance conducted without a
participant’s consent, see United States v.
Williams, 124 F.3d 411, 416 & n.5 (3d
Cir. 1997), are inapplicable in this context.
We therefore reject Lee’s argument that
the tapes should have been suppressed.
B.
Lee next contends that the District
Court misinstructed the jury regarding the
elements of commercial bribery under the
New Jersey Commercial bribery statute,
N.J.S.A. § 2C:21-10, which figured in four
of the counts on which Lee was convicted,
i.e., the three counts of interstate travel in
aid of racketeering and the money
laundering conspiracy count.3 Our
“[r]eview of the legal standard enunciated
in a jury instruction is plenary,” United
States v. Yeaman, 194 F.3d 442, 452 (3d
Cir. 1999), “but review of the wording of
the instruction, i.e., the expression, is for
abuse of discretion.” Id. “This Court
reviews jury instructions to determine
whether, ‘taken as a whole, they properly
apprized the jury of the issues and the
3The Travel Act counts charged that
he traveled in interstate commerce with the
intent to promote, manage, establish, carry
on and facilitate the promotion,
management, establishment and carrying
on of commercial bribery in violation of
the New Jersey bribery statute. The
relevant part of the money laundering
conspiracy count charged that Lee and the
other alleged conspirators conspired to
commit the offense of engaging in
financial transactions involving proceeds
derived from violations of the New Jersey
commercial bribery statute while knowing
that these proceeds were derived from
such violations and that the financial
transactions were designed at least in part
to conceal and disguise the nature,
location, source, ownership, and control of
the proceeds.

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applicable law.’” Id. (quoting Dressler v.
Busch Entertainment Corp., 143 F.3d 778,
780 (3d Cir. 1998)).
The New Jersey commercial bribery
statute provides in relevant part as follows:
A person commits a
crime if he solicits, accepts
or agrees to accept any
benefit as consideration for
knowingly violating or
agreeing to violate a duty of
fidelity to which he is
subject as . . . An officer,
director, manager or other
participant in the direction
of the affairs of an
i n c o r p o r a t e d o r
unincorporated association .
. . . .
N.J.S.A. § 2C:21-10a (emphasis added).
The District Court instructed the
jury that the three elements needed in
order to establish a violation of the New
Jersey commercial bribery statute are:
F i r s t , t h a t th e
d e f e n d a n t s o l i c i t e d ,
accepted or agreed to accept
a benefit;
Second, that the
d e f e n d a n t d i d s o in
consideration for knowingly
violating or agreeing to
violate a duty of fidelity;
Third, that th e
defendant owed that duty of
fidelity because he is either
an officer, a director, a
manager or other participant
in the direction of the affairs
of an incorporated or
unincorporated association.
Joint App. at 3788. This was a
straightforward and accurate statement of
the elements of N.J.S.A. § 2C:21-10a.
The Court further instructed the
jury as to the meaning of a “duty of
fidelity,” stating:
A person who owes a
duty of fidelity or loyalty
may not engage in self-
dealing or otherwise use his
or her position to further
personal interests rather than
those of the beneficiary.
For example officers and
directors have a duty not to
engage in self-dealing to
further their own personal
interests rather than the
interests of the corporation.
. . . .
The duty of loyalty or
fidelity may also arise based
on the existence of a
contractual relationship
between a defendant such as
Mr. Lee, Sr. and the
corporation such as the IBF.
A contract creates a duty
between the contracting
parties to adhere to the
terms of the contract, and
those terms may include or

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encompass a duty of
fidelity. A director
or officer’s failure to
abide by the terms of
his contract with a
corporation could, if
you so find, be a
breach of his duty of
l o y a l t y t o t h e
corporation.
Joint App. at 3790-91.
Pointing to these latter instructions,
Lee contends that the District Court erred
by telling the jury (1) that a person can
breach a “duty of fidelity” merely by
engaging in self-dealing and (2) that a
breach of an employment contract is a per
se breach of a duty of fidelity. We
disagree. Lee first argues that the District
Court went astray in instructing the jury
that any act of self-dealing by a corporate
officer constitutes a breach of a duty of
loyalty. According to Lee, the New Jersey
commercial bribery statute reaches only
“those specific duties of the actor ‘to
which he is subject’ as a director, manager,
etc. of the specific corporation at issue, not
to generic, vague, undefined corporate
duties, such as a duty to refrain from ‘self-
dealing.’” Appellant’s Br. at 32 (emphasis
added). However, Lee cites no New
Jersey case law that supports this
interpretation of N.J.S.A. § 2C:21-10a; we
are not aware of any such authority; and
the jury instruction in question seems to be
an accurate interpretation of the statutory
language. Moreover, in light of the nature
of the breach alleged in this case
(accepting bribes in exchange for rigging
the ratings of boxers) any failure to draw
the fine distinction suggested by Lee
(between “specific” and “generic”
corporate duties) was harmless.
Lee next maintains that the
instructions regarding the “duty of
fidelity” were flawed because the jury
could have interpreted them to mean that
proof that he breached this duty was alone
sufficient to establish that he violated
N.J.S.A. § 2C:21-10a. Lee’s argument is
not convincing. The Court’s discussion of
the meaning of a “duty of fidelity” was
delivered immediately after its careful
explanation of the three elements that were
necessary for the jury to convict Lee of
violating N.J.S.A. § 2C:21-10a, and one of
these elements was that “the defendant
[received a benefit] in consideration for
knowingly violating or agreeing to violate
a duty of fidelity.” Joint App. at 3788.
Thus, the District Court did not read the
element of consideration out of the statute.
Finally, Lee suggests that the
District Court told that jury that a breach
of contract is per se a breach of a duty of
fidelity, Appellant’s Br. at 33, but the
District Court said no such thing. Rather,
the Court said only that a duty of loyalty or
fidelity “may . . . arise based on the
existence of a contractual relationship
between a defendant such as Mr. Lee, Sr.
and the corporation such as the IBF” and
that “[a] director or officer’s failure to
abide by the terms of his contract with a
corporation could, if you so find, be a
breach of his duty of loyalty to the
corporation.” Joint App. at 3791

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(emphasis added). We are convinced that
the jury instructions, read in their entirety,
“properly apprized the jury of the issues
and the applicable law.” Yeaman, 194
F.3d at 452.
C.
Lee next contends that his
convictions for interstate travel in aid of
racketeering and for conspiracy to engage
in money laundering violated his rights to
due process.4 Asserting that those
convictions were predicated on violations
of the New Jersey commercial bribery
statute, Lee argues that “the connections
between the conduct underlying [those
counts] and the State of New Jersey [were]
tenuous at best” and that the application of
the New Jersey statute to the conduct at
issue would violate due process.5
Appellant’s Br. at 39. Lee contends that
“the vast majority of the conduct
constituting ‘commercial bribery’ took
place outside the state of New Jersey in
states that either do not consider such
conduct a crime, or do not consider it as
serious a criminal offense as New Jersey
does.” Appellant’s Br. at 36. He notes
that the bribe money was handed to him by
4At one point in his brief, Lee
claims that the application of the New
Jersey commercial bribery statute to the
conduct charged in the counts at issue also
violated his right to the equal protection of
the laws, but his brief makes no attempt to
explain what this invocation of the Equal
Protection Clause adds to his due process
argument. We are therefore unable to
assess any independent equal protection
argument regarding the New Jersey
commercial bribery statute.
5We understand the question before
us to be exclusively one of federal
constitutional law, not state law.
Specifically, we understand the question to
be whether the conduct at issue is
sufficiently tied to the State of New Jersey
to permit that state to regulate that conduct
without violating the federal Constitution.
The state-law question of whether the
conduct at issue is sufficiently tied to the
state to bring the conduct within the scope
of the state commercial bribery statute has
not been developed in Lee’s briefs, and we
do not regard that question as before us in
this appeal. Lee’s brief does refer to the
New Jersey statute that specifies the
territorial reach of the state’s criminal
laws, N.J.S.A. 2C1-3, but Lee makes no
attempt to argue that the conduct at issue
here does not fall within this provision. In
particular, Lee does not explain why the
conduct at issue in this case does not fall
within N.J.S.A. § 2C:1-3a(1), which
provides that “a person may be convicted
under [New Jersey law] if . . . [e]ither the
conduct which is an element of the offense
or the result which is such an element
occurs within this State.” Instead, of
addressing this question, Lee’s brief
quickly notes that this statute “is itself
subject to constitutional review where
extra-territorial application of New Jersey
law would violate the due process clause
of the United States Constitution.”
Appellant’s Br. at 38-39.

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12
Beavers in Virginia and that the
agree men ts between Beavers and
Fernandez, the IBF’s South American
representative, were made outside of New
Jersey. Lee’s arguments are not
persuasive.
“Acts done outside a jurisdiction,
but intended to produce and producing
detrimental effects within it, justify a state
in punishing the cause of the harm as if
[the defendant] had been present [in the
state] at the effect.” Strassheim v. Daily,
221 U.S. 280, 284 (1911). See also United
States v. Woodward, 149 F.3d 46, 66 (1st
Cir. 1998).6 Cf. Model Penal Code § 1.03.
In this case, both the purpose and the
effect of the commercial bribery was to
cause the IBF, which has its principal
place of business in New Jersey, to alter its
rankings of boxers. Thus, the conduct in
question had effects within New Jersey: it
tended to harm a business headquartered in
the state and to produce attendant
consequences there. These effects are
sufficient to permit the state to regulate the
conduct without violating due process.
The First Circuit’s decision in
United States v. Woodward, supra,
supports this conclusion. In Woodward, a
member of the Massachusetts Legislature
accepted gratuities in Florida and was
convicted under the Travel Act of
traveling in interstate commerce with the
intent to promote the offense of
commercial bribery, in violation of the
Massachusetts statute. The First Circuit
held that the potential effect on
Massachusetts when one of its legislators
accepts gratuities in another state was
sufficient to satisfy the “effects test” set
out in Strassheim. 149 F.3d at 67-68.
Lee attempts to distinguish
Woodward by arguing that the conduct of
the defendant in that case created a
potential for harm that was unique to his
own state (because he was a member of
that state’s legislature), whereas the effects
of Lee’s conduct “were no greater in New
Jersey than they were in any other state.”
Reply Br. at 12. However, the effects
6Lee relies on BMW of North
America, Inc. v. Gore, 517 U.S. 559
(1996), and Healy v. Beer Institute, Inc.,
491 U.S. 324 (1981), but we do not find
those cases to be apposite. Pointing to,
among other things, the restrictions
imposed by the dormant Commerce
Clause, the Court in BMW held that a state
court’s award of punitive damages “must
be supported by the State’s interest in
protecting its own consumers and its own
economy.” Id. at 572. Lee does not make
a make a dormant Commerce Clause
argument here, and in any event, BMW
does not preclude a state from basing an
award of punitive damages on conduct that
occurs outside the state but that has a
sufficient effect on the state’s “own
consumers and its own economy.” Id.
Healy held that a state law
concerning beer prices violated the
dormant Commerce Clause. As noted, Lee
does not make a dormant Commerce
Clause argument here, and therefore we do
not address that issue.

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13
within a state of extraterritorial conduct
need not be unique to that state in order to
justify the exercise of jurisdiction. The
effects need only be of sufficient
magnitude, and while the effects-test
argument was stronger in Woodward than
it is here, the effects here were adequate.
Moreover, we note that, contrary to Lee’s
suggestion, his conduct did create the
potential for special harm in New Jersey
because that is where the IBF is
headquartered and publishes its rankings.
We thus hold that Lee’s convictions on the
counts in question did not violate due
process.
D.
Lee contends that the government
failed to prove the existence of a single
conspiracy to engage in money laundering,
as charged in the indictment,7 and merely
proved the existence of a series of
unrelated conspiracies between different
boxing promoters and individual officers
of the IBF. Lee argues that his conviction
for conspiracy to engage in money
laundering should therefore be reversed.
We reject this argument.
We exercise plenary review over
“whether there was sufficient evidence
from which the jury could have concluded
that the government proved the single
conspiracy alleged in the indictment.”
United States v. Kelly, 892 F.2d 255, 258
(3d Cir. 1989). In reviewing the
sufficiency of the evidence after
conviction, we must view the evidence in
the light most favorable to the verdict. Id.
Where a single conspiracy is alleged in an
indictment, and the evidence at trial merely
proves the existence of several distinct
conspiracies, there is an impermissible
variance. Id. On the other hand, “a
finding of a master conspiracy with sub-
schemes does not constitute a finding of7 Count 27 of the Superceding
Indictment provides, in relevant part:
From in or about December 1990,
through in or about November 1997, in the
district of New Jersey, and elsewhere,
defendant ROBERT W. LEE, SR., and
separately charged Don Brennan, a/k/a/
“Bill”, and separately charged Francisco
Fernandez, a/k/a/ “Pancho,”a/k/a “Pacho,”
and others conspired to violate Title 18,
United States Code, Section 1956(a)(1),
that is, knowing that the property involved
in financial transactions represented the
proceeds of some form of unlawful
activity, conducted and attempted to
conduct financial transactions, which in
fact, involved the proceeds of specified
unlawful activity, namely, bribery,
contrary to N.J.A.C. §§ 2C:21-10(a)(4)
and 2C:21-10(b).
. . . .
b. knowing that the transaction was
designed in whole and in part to disguise
the nature, location, source, ownership and
control of the proceeds of specified
unlawful activity, nam ely, bribery,
contrary to N.J.A.C. §§ 2C:21-10(a)(4)
and 2C:21-11(b).
Joint App. at 120.

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14
multiple, unrelated conspiracies and,
therefore, would not c r e a te an
impermissible variance.” Id. (quoting
United States v. Smith, 789 F.2d 186, 200
(3d Cir. 1986)). In Kelly, we adopted a
three-step inquiry to distinguish a single
conspiracy from a series of separate,
unrelated conspiracies:
First, we examine
whether there was a
common goal among the
conspirators. Second, we
look at the nature of the
s c h e m e t o d e t e r m i n e
whether the agreement
contemplated bringing to
pass a continuous result that
will not continue without
the continuous cooperation
of the conspirators. Third,
we examine the extent to
which the participants
overlap in the various
dealings.
Id. at 259 (citations and quotation marks
omitted).
Application of the Kelly inquiry
shows that the jury had a reasonable basis
for concluding that what Lee alleges were
four separate conspiracies was in fact part
of the same overarching conspiracy to
launder the proceeds of the bribes paid to
Lee and other IBF officials.8 The first step
of the Kelly inquiry is satisfied because
Lee, Lee Jr., Brennan and Fernandez
shared a common goal, namely, to receive
shares of the payments from boxing
promoters. The second step in the Kelly
inquiry – that the co-conspirators each
acted to bring about a continuous result
that would not have continued but for their
continuing cooperation – is also met
because the participants continuously
cooperated in their receipt of bribes, in the
laundering of checks, and in the
distribu tion of p rocee ds be tw een
themselves. For example, Lee held several
conversations with Beavers regarding the
risks of receiving bribes in the form of
checks, and Beavers deposited checks that
he had received from Fernandez into the
bank account belonging to the Portsmouth
Athletic Club and then distributed part of
the proceeds to Lee. Finally, there was
sufficient evidence to show that the
participants overlapped in the various
dealings, in satisfaction of the third Kelly
factor. In establishing this third factor, the
government is not required to “prove that
each defendant knew all the details, goals,
or other participants in order to find a
single conspiracy.” Id. at 260 (internal
quotation marks and citations omitted).
Evidence was presented at trial that Lee
participated in each of the four supposedly
separate schemes, Beavers was directly
implicated in three9, and Fernandez was
8 Two of the allegedly separate
conspiracies involved payments by
Colombian boxing promoters to Fernandez
and then to Beavers. The two remaining
conspiracies involved direct payments by
U.S. boxing promoters to Lee and Beavers.
9 He either received money from
Fernandez or directly from a boxing

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15
directly implicated in two.
In sum, there was sufficient
evidence, when viewed in the light most
favorable to the government, from which
the jury could have concluded that there
was a single conspiracy, as opposed to a
series of unrelated smaller agreements
between the participants.
E.
Lee contends that the two of the
Travel Act counts of the indictment were
improperly amended at trial. We exercise
plenary review over a claim that an
indictment was impermissibly amended.
United States v. Asher, 854 F.2d 1483,
1497-98 (3d Cir. 1988). “In order to rise
to the level of an impermissible
amendment, a variance must act to modify
the indictment so that the defendant is
convicted of a crime that involves
elements distinct from those of the crimes
with which he was originally charged.” Id.
at 1497. “Thus, where trial evidence [has]
amended the indictment by broadening the
possible bases for conviction from that
which appeared in the indictment, the
variance violates the defe ndan t’s
substantial right to be tried only on charges
returned by a grand jury.” Id. (citations
and quotation marks omitted, emphasis
and alteration in original). “If, on the
other hand, the variance does not alter the
elements of the offense charged, [courts]
focus upon whether or not there has been
prejudice to the defendant.” Id. (alteration
in original).
Counts 21 and 23 of the indictment
included the following language:
On or about the following
dates, in the district of New
Jersey, and elsewhere, the
below-named defendants
did knowingly and wilfully
travel in interstate and
f o r e i g n c o m m e r c e a s
described below, with intent
t o p r o m o t e , m a n a g e ,
establish, carry on and
facilitate the promotion,
management, establishment
and carrying on of an
unlawful activity, that is,
bribery, contrary to N.J.S.A.
2C:21–10(a)(4) and 2C:21-
10(b), and therafter did
perform, and cause the
performance of an act to
promote, manage, establish,
carry on and facilitate the
promotion, management,
and carrying on of said
unlawful activity.
. . . .
Count Date D e f e n d a n t s
From/To
21 11/97 L e e , S r .
Colombia to
Virginia
23 6/98 L e e , S r .
Colombia to
V i r g i n i a .
A p p e l l e e ’ s
Supp. App. at
promoter.

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16
6 4 - 6 5
(e m ph
a s i s
added)
.
In violation of Title 18, United
States Code, Sections 1952 and 2.
Appellee’s Supp. App. at 64-65
(emphasis added).
Lee contends that his conviction
under these counts should be overturned
because the government impermissibly
amended the indictment by presenting
evidence at trial, not that he traveled from
“Colombia to Virginia” on or about
“11/97" and “5/98,” as the indictment
charged, but that Fernandez made those
trips. We disagree.
Lee’s argument ignores the fact that
Counts 21 and 23 charge that the alleged
conduct violated “Title 18, United States
Code, Sections 1952 and 2,” Appellee’s
Supp. App. at 65 (emphasis added), and
under 18 U.S.C. § 2 Lee could be held
liable as a principal for Fernandez’s travel
in interstate or foreign commerce if Lee
aided, abetted, counseled, commanded,
induced, procured, or willfully caused
Fernandez to engage in that conduct. We
have previously noted that criminal
indictments are to be read “as a whole and
interpret[ed] in a common sense manner.”
Gov’t of the Virgin Islands v. Moolenar,
133 F.3d 246, 250 (3d Cir. 1998).10
Accordingly, even though Counts 21 and
23 of Lee’s indictment could perhaps have
been more carefully drafted, it is apparent
that these counts apply both to travel in aid
of racketeering by Lee himself, acting as
principal, and to Lee’s aiding and abetting
the travel in aid of racketeering of another
unnamed individual or individuals. The
evidence presented at trial showed that Lee
aided and abetted Fernandez’s travel to
and from Colombia but did not show such
travel by Lee. The elements of the offense
charged in Lee’s indictment were therefore
narrowed at trial. Accordingly, we look to
whether Lee suffered any prejudice.
Asher, 854 F.2d at 1497. The indictment
charged Lee with aiding and abetting
travel between Colombia and Virginia by
an unnamed individual on or about
November of 1997 and June of 1998.
Evidence at trial showed that Fernandez,
the IBF’s South American representative
and Lee’s co-indictee, was the unnamed
individual that Lee had aided and abetted
in his travels between Colombia and
Virginia during these months. We cannot
believe Lee was prejudiced by this
narrowing of the government’s theory at
trial.
F.
1 0 Moolenar dealt w ith an
information, as opposed to an indictment,
but stressed that, for the purpose of
assessing the permissibility of amendments
at trial, an information and an indictment
should be treated in the same manner. 133
F.3d at 248.

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17
Lee’s last argument is that the
District Court erred when it sentenced him
to concurrent terms of 22 months’
imprisonment on the two tax counts, which
charged violations of 26 U.S.C. § 7206.
Because Lee did not raise this argument in
the District Court, we review for plain
error. United States v. Gricco, 277 F.3d
339, 350 (3d Cir. 2002).
Title 26, United States Code
Section 7206 provides that any violation
may be punished by a fine of “not more
than $100,000 . . . or imprison[ment for]
not more than 3 years.” 26 U.S.C. § 7206.
Section 3D1.2 of the Sentencing
Guidelines directs a sentencing court to
group “[a]ll counts involving substantially
the same harm,” and Section 5G1.2(b) of
the Guidelines instructs a court to apply
the same sentence to each count in the
same group, unless the statutorily
authorized maximum for that count is less
than the minimum of the guideline range
or the statutory minimum is greater than
the maximum of the guideline range.
U.S.S.G. § 5G1.2(b) (referring to §§
5G1.1(a) and (b)). A t t h e s e n t e n c i n g
hearing, the District Court determined the
offense level for Lee’s money laundering
and Travel Act offenses to be 16 and the
offense level for his tax convictions to be
seven. Joint App. at 3646-48. The Court
did not commit plain error when it grouped
these offenses. The Court proceeded to
identify a guideline range of 21 to 27
months, based on an offense level of 16
and Lee’s criminal history category of I.
Id. at 6. The Court then imposed
concurrent sentences of 22 months on all
six counts. Id. at 3700. Because the
statutory maximum for Lee’s tax offenses,
3 years, is not less than the minimum
guideline range of 21 months, and because
there was no mandatory minimum term of
imprisonment for those offenses, the
District Court did not commit plain error
when it imposed the same concurrent 22-
month sentence on all counts.
III.
For the reasons explained above,
we affirm the judgment of the District
Court.
McKee, Circuit Judge, dissenting.
“What a person knowingly exposes
to the public, even in his own home or
office, is not a subject of Fourth
Amendment protection.” Katz v. United
States, 389 U.S. 347, 351 (1967)
(emphasis added). Today my colleagues
stretch that rule to include personal effects
that a person unknowingly exposes to the
public. Accordingly, I must respectfully
dissent from the majority’s rejection of
Lee’s Fourth Amendment claim.
I. BACKGROUND
The FBI rented a hotel suite for Lee
in June and December of 1997. The suite
consisted of “a sitting room and
kitchenette, from which one could walk
through a continuously open door, into a
bedroom, which also had a bathroom in
it.” A496-97. C. Douglas Beavers, the
government’s cooperating witness, rented

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18
the hotel suite in Lee’s name on behalf of
the government and kept a key for himself.
However, both Lee and Beavers treated the
suite as if it was exclusively Lee’s hotel
room.
With Beavers’ consent, the FBI
concealed a video camera and microphone
in the suite after Beavers rented it. The
camera could swivel 360 degrees and
transmit video images from the living
room area and part of the bedroom area of
Lee’s suite 24 hours a day. Special Agent
Reilly of the FBI monitored the hidden
surveillance equipment from an adjacent
hotel room the government had rented for
that purpose. Reilly could remotely
control the camera and equipment in Lee’s
suite from her location in the adjoining
room. The equipment in Lee’s room
continuously transmitted video and audio
to the receiving equipment operated by
Agent Reilly although she could not
receive or record those transmissions
unless her equipment was turned on.
Agent Reilly testified without
contradiction that she did not turn her
equipment on or monitor any of the
transmissions from Lee’s suite unless
Beavers was in the suite with Lee.
However, the camera could scan and focus
on different areas of Lee’s suite whether or
not Beavers was there. See Reply Br. at 4
n.1.
When Beavers visited Lee, he also
wore a “body wire” capable of sending
audio transmissions to the equipment in
Agent Reilly’s adjoining room. However,
Beavers’ body transmitter apparently
malfunctioned and the FBI was only able
to monitor and record audio transmissions
by utilizing the microphone and camera
hidden inside Lee’s suite. The audio and
video recordings that resulted from this
surveillance constituted the primary
evidence for the only counts on which Lee
was convicted.
The Government argues that
“Beavers’ view of the room was
unobstructed, and he could look around the
room at will. Nothing was concealed from
Beavers that was visible to the camera.”
See Appellee’s Br. at 28. However, that
claim is not supported by this record, and
the district court did not focus on that
aspect of Lee’s argument. Instead, it
found that Lee had no expectation of
privacy in his hotel suite because he
admitted Beavers to the room, and
Beavers’ presence negated Lee’s Fourth
Amendment expectation of privacy under
Hoffa v. United States, 385 U.S. 293
(1966). A498.
II. DISCUSSION
A. Katz and Hoffa
The Supreme Court first addressed
the tension between law enforcement’s use
o f t e c h n o lo g y a n d th e F o u r t h
Amendment’s guarantee of privacy in Katz
v. United States. 389 U.S. 347 (1967).
There, FBI agents attached an electronic
device to the outside of a public telephone
booth that Katz was suspected of using for
gambling-related telephone calls. The
device allowed the FBI to surreptitiously
listen to Katz’s end of telephone
conversations. Based primarily upon

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19
evidence obtained from monitoring those
calls, Katz was subsequently convicted of
using the telephone for interstate
transmission of gambling information in
violation of 18 U.S.C. § 1084. Following
his conviction, Katz appealed the trial
court’s denial of his motion to suppress
evidence derived from the electronic
i n t e r c e p t i o n o f h i s t e l e p h o n e
conversations.
The Supreme Court concluded that
Katz’s expectation of privacy in the
content of his calls was reasonable even
though he was standing in a public
telephone booth in full view of everyone
passing by, and that the electronic
interception of his telephone calls
constituted a “seizure” under the Fourth
Amendment even thou gh it was
accomplished without physically invading
the place where the monitoring occurred.
Therefore, absent exigencies that were not
present, the seizure was subject to the
warrant requirement of the Fourth
Amendment. The Court explained:
[B]ypassing a neutral
predetermination of the
scope of a search leaves
individuals secure from
F o u r t h A m e n d m e n t
violations only in the
discretion of the police.
These considerations do not
vanish when the search in
question is transferred from
the setting of a home, an
office, or a hotel room to
that of a telephone booth.
Wherever a man may be, he
is entitled to know that he
will remain free from
unreasonable searches and
seizures. The government
agents here ignored the
procedure of antecedent
justification . . . that is
central to the Fourth
Amendment, a procedure
that we hold to be a
constitutional precondition
of the kind of electronic
surveillance involved in this
c a s e . B e c a u s e t h e
surveillance here failed to
meet that condition, and
because it led to the
petitioner’s conviction, the
judgment must be reversed.
389 U.S. at 358-59 (internal quotation
marks and citations omitted).
The majority relies upon Hoffa v.
United States, 385 U.S. 293 (1966), in
concluding that Lee’s expectation of
privacy inside the intimacy of his hotel
suite was not reasonable. However, on
this record, that is an unjustified and
unsupportable extension of Hoffa and its
progeny.
The defendant in Hoffa was
convicted of jury tampering based
primarily upon the testimony of Edwin
Partin, an official of a Teamsters Union
local in Nashville, Tennessee, where Hoffa
and other union officials were on trial for
violating the Taft-Hartley Act. During the
course of that trial, the government

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20
became concerned that Hoffa and his co-
defendants might attempt to bribe some of
the jurors. Unbeknownst to Hoffa, the
government recruited Partin to gather
evidence of jury tampering. Partin was
able to visit Hoffa’s hotel suite and Hoffa
spoke freely of attempting to bribe jurors
in his presence. Hoffa’s trial for Taft-
Hartley violations ended with a hung jury,
but Hoffa was thereafter convicted of jury
tampering based largely on Partin’s
testimony about statements Hoffa had
made in his hotel suite.11 Hoffa appealed
arguing in part that Partin’s testimony
should have been suppressed because it
was obtained in violation of the Fourth
Amendment. Hoffa argued that Partin’s
failure to disclose that he was “a
government informer vitiated the consent
that [Hoffa] gave to Partin’s repeated
entries into the [hotel] suite, and that by
listening to [Hoffa’s] statements Partin
conducted an illegal ‘search’ for verbal
evidence.” 385 U.S. at 300.
The Hoffa Court began its analysis
by conceding that the legal predicate of
Hoffa’s argument rested on solid ground.
A hotel room can clearly be
the obje ct of Fou rth
Amendment protection as
much as a home or office. .
. . The Fourth Amendment
can certainly be violated by
guileful . . . intrusions into a
constitutionally protected
area. . . . And the
protections of the Fourth
Amendment are surely not
limited to tangibles, but can
extend as well to oral
statements.
Id. at 301. The Court explained:
The Fourth Amendment
protects . . . the security a
man relies upon when he
places himself or his
p r o p e r t y w i t h i n a
constitutionally protected
area, be it his home or his
office, his hotel room or his
automobile. There he is
protected from unwarranted
governmental intrusion.
A n d w h e n h e p u t s
something in his filing
cabinet, in his desk drawer,
or in his pocket, he has the
right to know it will be
secure from an unreasonable
search or an unreasonable
seizure.
Id. (footnote omitted). However, the Court
rejected the balance of Hoffa’s argument
because Hoffa’s disclosures resulted from
his relationship with Partin, not any
reliance on the privacy of his hotel suite.
11 The government’s evidence at the
jury tampering trial consisted primarily of
Partin’s testimony about statements he
heard Hoffa make while in Hoffa’s hotel
room during the first trial.

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21
Thus, there was no reasonable expectation
of privacy in the contents of the statements
made to Partin, and no Fourth Amendment
privacy interest prevented Partin from
testifying about Hoffa’s “confidential”
statements. The Court explained:
It is obvious that [Hoffa]
was not relying on the
security of his hotel suite
w h e n h e m a d e t h e
incriminating statements to
Partin or in Partin’s
presence. Partin did not
enter the suite by force or by
stealth. He was not a
surreptitious eavesdropper.
Partin was in the suite by
i n v i t a t i o n , a n d e v e ry
conversation which he heard
was either directed to him or
knowingly carried on in his
presence. The petitioner, in
a word, was not relying on
the security of the hotel
room; he was relying upon
his misplaced confidence
that Partin would not reveal
his wrongdoing.
Id. at 302.
The same is true here, but only to a
point, and it is this limitation that the
majority ignores in allowing Hoffa to
swallow Katz on this record, and gulp
down the Fourth Amendment in the
process. Under the majority’s Hoffa
analysis, once Lee allowed Beavers to
enter the suite, Lee no longer had a
reasonable expectation of privacy and Katz
becomes irrelevant. I disagree.
Hoffa teaches that one’s expectation
of privacy is compromised, and therefore
unreasonable, to the extent that he or she
confides in a confederate because the
speaker is assuming the risk that the
confederate may subsequently betray the
speaker’s trust and repeat anything
communicated in “private.” The same
logic dictates that one has no reasonable
expectation in the privacy of anything
he/she knowingly allows the confederate to
see in the presumed privacy of a home or
hotel room, or elsewhere.12 As noted
above, the government concealed a
microphone and video camera in the sitting
room area inside Lee’s hotel suite. From
that vantage point, the government was
capable of monitoring Lee’s activity inside
his suite 24 hours a day by way of audio
and video transmissions to Agent Reilly in
the adjoining room.
The government maintains that it
took steps to insure Lee’s privacy and to
guarantee that its actions were consistent
with the pronouncements in Hoffa. It
argues that Agent Reilly did not start
monitoring the transmissions from Lee’s
suite until Beavers arrived, that she turned
12 This has been referred to as the
“invited informant” doctrine. See, e.g.,
United States v. Nerber, 222 F.3d 597, 605
n.10 (9th Cir. 2000). For convenience, I
will use that phrase throughout my
discussion.

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22
the equipment off when Beavers left, and
that she did not turn it on in Beavers’
absence. My colleagues conclude that this
restraint was consistent with Lee’s
expectation of privacy under Hoffa, and
therefore no Fourth Amendment violation
occurred. In doing so, my colleagues
ignore the fact that the Court in Katz
rejected that very argument.
The Court in Katz began its analysis
by noting the restrained manner in which
the government had obtained the evidence
there.
[T]he surveillance was
limited, both in scope and in
duration, to the specific
purpose of establishing the
contents of petitioner’s
u n l a w f u l t e l e p h o n i c
communications. The
a g e n t s c o n f i n e d t h e
surveillance to the brief
periods during which he
used the telephone booth
and they took great care to
o v e r h e a r o n l y t h e
c o n v e r s a ti o n s o f th e
petitioner himself.
389 U.S. at 354 (footnotes omitted).
Accordingly, there, as here, the actual
surveillance had been conducted “in an
entirely defensible manner[.]” Id. There,
as here, “[i]t [was] apparent that the agents
. . . acted with restraint” Id. at 356.
Nevertheless, the Court concluded that this
self-imposed restraint could not legitimize
the warrantless seizure of Katz’s
conversations in the public telephone
booth. The Court reasoned:
[T]he inescapable fact is
that this restraint was
imposed by the agents
themselves, not by a judicial
officer. They were not
r e q u i r e d , b e f o r e
commencing the search, to
present their estimate of
probable cause for detached
scrutin y to a neutra l
magistrate. They were not
compelled, during the
conduct of the search itself,
to observe precise limits
established in advance by a
specific court order. Nor
were they directed, after the
search had been completed,
to notify the authoring
magistrate in detail of all
that had been seized. In the
absence of such safeguards,
this Court has never
sustained a search upon the
sole ground that officers
reasonably expected to find
evidence of a particular
crim e and volun tarily
confined their activities to
the least intrusive means
consistent with that end.
Id. at 356-57 (emphasis added).
Accordingly, I fail to see the
significance of the government’s self-
imposed restraint here. Despite those self-

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23
imposed limitations, the fact remains that
Agent Reilly had the ability to manipulate
a video camera to see and hear practically
everything that Lee did in the privacy of
his hotel suite throughout the day and
night. The limitations of that Orwellian
capability were not subject to any court
order. Rather, they were defined by the
curiosity and scruples of a single agent.
That is simply not adequate given the
importance of Fourth Amendment
guarantees.
If subjective good faith
alone were the test, the
protections of the Fourth
A m e n d m e n t w o u l d
evaporate, and the people
would be secure in their
persons, houses, papers and
e f f e c t s , o n l y i n th e
discretion of the police.
Terry v. Ohio, 392 U.S. 1, 22 (1068)
(internal quotation marks and citation
omitted).
Moreover, the agents in Katz did
not even initiate their electronic
monitoring “until investigation of the
[defendant’s] activities established a
strong probability that he was using the
telephone in question [for interstate
gambling purposes].” 389 U.S. at 354.
Here, there is no such representation. In
fact, it is clear that Lee was not using the
hotel suite for illegal purposes before the
government installed microphones and
cameras there and arranged for him to
occupy it.
The government attempts to negate
the reasonableness of Lee’s expectation of
privacy by suggesting that, since Lee knew
Beavers paid for the room and retained a
key, “Lee’s expectation of privacy in the
room was relatively diminished.”
Appellee’s Br. at 21. However, as noted
above, both parties regarded the suite as
Lee’s and the government does not
seriously argue to the contrary. Everyone
involved apparently knew that Lee was to
remain in the suite overnight, and there is
nothing to suggest that anyone ever
expected Beavers to remain in the suite for
any length of time. “From the overnight
guest’s perspective,” the expectation of
privacy in a hotel room is entitled to the
same respect as afforded one’s actual
home under the Fourth Amendment.
Minnesota v. Olson, 495 U.S. 91, 99
(1990). Thus, “[n]o less than a tenant of a
house, or an occupant of a room in a
boarding house, . . . a guest in a hotel
room is entitled to constitutional protection
against unreasonable searches and
seizures.” Stoner v. California, 376 U.S.
483, 490 (1964).
Accordingly, the fact that Beavers
rented the suite for Lee and retained a key
to Lee’s suite before surrendering
possession to Lee for the latter’s sole
occupancy is little more than a technicality
of convenience that the government
devised to fortify this intrusion against the
expected suppression motion. It is entitled
to no more consideration than that.
[I]t is unnecessary and ill-
advised to import into the
l a w s u r r o u n d i n g t h e

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24
constitutional right to
b e f r e e f r o m
u n r e a s o n a b l e
searches and seizures
subtle distinctions,
d e v e l o p e d a n d
r e f i n e d b y t h e
common l aw in
evolving the body of
private property law
which, more than
almost any other
branch of law, has
been shaped by
distinctions whose
validity is largely
historical. (W)e
ought not to bow to
them in the fair
administration of the
criminal law.
Id. at 488. To the extent the Fourth
Amendment has any vitality in an era of
increasingly sophisticated electronic
eavesdropping, it surely protects the
privacy of someone in the intimacy of a
hotel suite from the potential of
warrantless 24-hour video surveillance.
As noted above, the majority
concludes that the Supreme Court’s
analysis in Hoffa negates Lee’s claim of
privacy. Lee, like Hoffa, “was not relying
on the security of his hotel suite when he
made incriminating statements to
[Beavers] or in [Beavers’] presence.”
Hoffa, 385 U.S. at 302. Beavers, like the
confederate in Hoffa, “was in the suite by
invitation, and every conversation which
he heard was either directed to him or
knowingly carried on in his presence.” Id.
It is now clear that the Fourth
Amendment does not protec t “a
wrongdoer’s misplaced belief that a person
to whom he voluntarily confides his
wrongdoing will not reveal it.” Id.
How ever, this means that Lee’s
expecta t i o n o f p r i v a cy is o n ly
unreasonable insofar as he actually made
statements in Beavers’ presence, or
allowed Beavers to see the effects inside
his suite. It does not mean that Lee’s
expectation of privacy in things beyond
Beavers’ earshot or line of sight was
unreasonable. Indeed, that expectation
remained reasonable and should be
protected under the Fourth Amendment.
However, the concealed camera
was capable of sweeping the hotel suite at
a 360-degree angle, thereby displaying for
the FBI all of Lee’s effects inside the suite
whether or not Beavers would have been
able to see them. Neither Hoffa nor any
other legal precedent supports such an
abrogation of the fundamental right of
privacy.
B. Lee’s Right of Privacy
The Fourth Amendment states that
“[t]he right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and
seizures, shall not be violated. . . .” U.S.
CONST. Amend. IV. At the very core of
the Fourth Amendment “stands the right of
a [person] to retreat into [his or her] own

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25
home and there be free from unreasonable
governmental intrusion.” Silverman v.
United States, 365 U.S. 505, 511 (1961).
It has often been said that “the
Fourth Amendment protects people, not
places.” Katz, 389 U.S. at 351. However,
my colleagues appear to assume that since
Lee admitted Beavers to his suite (the
place), Lee (the person) lost all
constitutional protection. That conclusion
would be warranted if Lee had allowed
Beavers’ unlimited access to everything
that was within the 360-degree field of
vision of the video camera. However,
despite its assertion to the contrary, the
government has not established that he did.
“[T]he capacity to claim the protection of
the Fourth Amendment depends . . . upon
whether [Lee] has a legitimate expectation
of privacy” in those portions of his hotel
room that were beyond the gaze of
Beavers. Minnesota v. Olson, 495 U.S. 91,
95 (1990) (ellipsis in original; internal
citation and quotation marks omitted).
Unlike my colleagues, I conclude
that Lee’s expectation of privacy in
anything inside the suite that he did not
knowingly let Beavers see was reasonable,
and entitled to Fourth Amendment
protection.
Moreover, the government was able
to peer into Lee’s hotel room even after
Beavers left. “When [the informant]
leaves [the] premises, [the subject] is left
with the expectation of privacy in his
surroundings which is not only actual but
justifiable. . . .” United States v. Padilla,
520 F.2d 526, 527 (1st Cir. 1975) (citing
Katz, 389 U.S. 347).
C. Video Surveillance Under Hoffa
In United States v. Felton, 753 F.2d
256 (3d Cir. 1985), we explained the
invited informant rule in the context of a
monitored telephone conversation. There,
we stated:
Insofar as the Fourth
Amendment is concerned,
one party to a telephone
conversation assumes the
risks that the other party (a)
will permit a third party to
eavesdrop on an extension
telephone, for the purpose
of communicating what he
heard to the police, or (b)
may be a police informer
who will relate or record or
transmit a conversation to
the authorities, or (c) may
record the conversation and
deliberately turn it over.
Id. at 260. We then stated: “the
expectation of privacy is not measured by
what takes place during or after the
conversation, it is measured by what is
expected before the conversation begins.”
Id. As then-Chief Judge Aldisert so
plainly explained, “[w]hen you pick up
that phone and talk, you can’t trust
nobody, nohow, nowhere!” Id.
Hoffa’s reliance on the Court’s
earlier decision in Lopez v. United States,
373 U.S. 427 (1963) clearly demonstrates
this. Lopez is even more relevant to Lee’s

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26
claim here because in Lopez, unlike in
Katz, the government concealed a
transmitter and recorder on a government
agent. That agent then interviewed the
defendant in the latter’s office after being
invited in. The defendant was convicted
of offering the agent a bribe based on the
ensuing conversation, and thereafter
argued that the trial court had erred in
refusing to suppress recordings of
conversations with the agent. The Lopez
Court began by noting that “it [was] plain
that [the agent] could properly testify
about his conversation with Lopez;” thus,
“the constitutional claim relating to the
recording of that conversation emerge[d]
in proper perspective.” 373 U.S. at 438.
The Court concluded that the recordings
were properly admitted at trial because
“[t]he Government did not use an
electronic device to listen in on
conversations it could not otherwise have
heard.” Rather, “the device was used only
to obtain the most reliable evidence
possible of a conversation in which the
Government’s own agent was a participant
and which that agent was fully entitled to
disclose.” Id.13 However, neither Lopez
nor Hoffa allow the government to go
farther and substitute its own electronically
enhanced senses for the mortal senses of
the informant. Putting aside for a moment
the ability to monitor Lee’s suite when
Beavers left, absent a showing that
Beavers and Agent Reilly were limited to
identical observations while Beavers was
in Lee’s suite, the g overnment’s
surveillance simply goes too far. The
problem is only exacerbated by the fact
that Agent Reilly had the capability of
monitoring Lee at all hours of the day and
night even though Beavers was not in the
suite. As noted above, it is clear under
Katz that the fact that Agent Reilly did not
peek is not relevant to this invasion of
Lee’s privacy under the Fou rth
Amendment.
My colleagues note that they “are
satisfied that the tapes [here] do not depict
anything material that Beavers himself was
not in a position to hear or see while in the
room.” Maj. Op. at 13. Again, putting
aside the intrusion that occurred when
Beavers was not even in the suite, I must
still respectfully disagree with the
majority’s analysis. T h e g o v e r n m e n t
concedes that the camera continued to
transmit video surveillance of Lee’s room
on occasion when Beavers left Lee’s
presence to go to the bathroom, and there
is no showing that, in Beavers’ absence,
Agent Reilly could only see objects that
Beavers had already seen, or would see
when he returned to the sitting area where
Lee remained. Similarly, there has been
absolutely no finding here that Agent
Reilly was only able to see what Lee
knowingly allowed Beavers to see while
13 The Court likened Lopez’
position to an argument that he had “a
constitutional right to rely on possible
flaws in the agent’s memory, or to
challenge the agent’s credibility without
being beset by corroborating evidence that
is not susceptible to impeachment.” Lopez,
373 U.S. at 439. That position was, of
course, untenable.

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27
Beavers was in Lee’s presence. Despite its
claim that Reilly only saw what Beavers
saw, the government concedes that any
such limitation on its surveillance would
be extremely impractical if not impossible.
D. Audio Surveillance Is
D i s t i n g u i s h a b l e F r o m V i d e o
Surveillance
My colleagues concede that video
surveillance “may involve a greater
intrusion on privacy than audio
surveillance.” Id. at 10-11. Indeed, they
could hardly do otherwise. As the Court
of Appeals for the Ninth Circuit has
observed, in the case of video surveillance:
[t]he governmental intrusion
[is] severe. Hidden video
surveillance is one of the
most intrusive investigative
mechanisms available to law
enforcement. . . . [W]e
[have] pointed out . . . [that]
the defendant ha[s] a
reasonable expectation to be
free from hidden video
surveillance because the
video search was directed
straight at him, rather than
being a search of property
he did not own or control ....
[and] the silent, unblinking
lens of the camera was
intrusive in a way that no
temporary search of the
office could have been.
United States v. Nerber, 222 F.3d 597,
603 (9th Cir. 2000). The court in Nerber
quoted Judge Kozinski’s concurring
opinion in United States v. Koyomejia, 970
F.2d 536, 551 (9th Cir. 1992). There,
Judge Kozinski stated: “every court
considering the issue has noted [that]
video surveillance can re sult in
extraordinarily serious intrusions into
personal privacy. . . .”
This distinction between video and
audio surveillance is dismissed by my
colleagues. They conclude that “[t]he
difference is not nearly as great as the
difference between testimony about a
conversation and audio recordings of
conversation.” Maj. Op. at 11. My
colleagues then correctly note that “the
Supreme Court has not drawn any
distinction between those two types of
evidence,” and they therefore find “no
constitutionally relevant distinc tion
between audio and video surveillance in
the present context.” Id. I must again
respectfully disagree.14
The government correctly states
that it would be extremely impractical to
create a situation where the camera’s view
would be limited to the view of an
14 The majority does not state
whether the Supreme Court has been
called upon to decide if there is a
distinction between video and audio
surveillance under the Fourth Amendment.
My research did not reveal any such case.
Therefore, the Supreme Court’s failure to
draw a distinction is irrelevant. The Court
has never been presented with the
question.

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28
informant. We all know that we can not
see around corners although we can hear
around corners. Everyday experience
teaches enough physics to know that
observers with different lines of sight will
have different fields of vision and
therefore see different things or the same
thing from different angles. One need not
study Gestalt theory to appreciate that two
observers who see the same object from
different angles may “see” two entirely
different objects. The observer at point A
in a given space may not see the same
thing as an observer at point B in the same
space. Moreover, no two observers can
possibly occupy the exact same space at
the same time, and the extent to which
their observations may differ increases
with the distance between the two
observers as well as the increase in the
angle formed by their location and the
location of the objects they are observing.
The amount of discrepancy in their
observations may also depend on the
presence of objects in the space between
them and the object they are viewing.
There is nothing on this record to support
a conclusion that Agent Reilly could only
see what Beavers could see at any given
instance and I think it fair to say that
proposition is a virtual impossibility given
the configuration of the usual hotel suite,
the number of objects inside it, and the fact
that Beavers and the video camera could
not possibly have been looking at any
given object from exactly the same place.
However, Agent Reilly may well
have been only able to hear the same
sounds that Beavers heard depending on
such factors as the sensitivity of the
microphone, transmitting and receiving
equipment, as well as the presence of any
electronic interference in Lee’s room or
Reilly’s.15 Nevertheless, since no court
has yet addressed the impact of such
variables as the sensitivity of the
equipment on an invited informant
analysis under Hoffa, I will assume
arguendo that Agent Reilly could only
hear what Beavers heard. However, as I
have explained, the same can not be said
of the video transmission. This distinction
between audio transmissions and video
transmissions is crucial to any analysis
under Hoffa and its progeny if the Fourth
Amendment is to withstand the increasing
sophistication of electronic surveillance
equipment.
The government argues that unless
we ignore this technicality “video
surveillance would be limited to
circumstances where an informant is
wearing eyeglasses containing mini-video
recorders[,]” and the government
emphasizes that “[s]uch a requirement is
impractical.” Appellee’s Br. at 28.
However, we can not condone a
constitutional violation merely because
complying with the Constitution would be
“impractical.” Nor is the government’s
sarcastic observation that it “is unaware of
the existence of such James Bond-like
gadgets[,]” id., a satisfactory reply. If the
15 See The Physics of Sound,
http://interface.cipic.ucdavis.edu/CIL_tut
orial/3D_phys/3D_phys.htm (viewed on
Jan. 22, 2004).

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29
government wishes to engage in this kind
of invasive surveillance it need only visit
a neutral magistrate; it need not impose
upon “Q.”16
Things that Lee did not knowingly
disclose to Beavers remain within Lee’s
expectation of privacy so long as that
expectation is reasonable, and society is
willing to accept the expectation as such.
“The test of legitimacy is not whether the
individual chooses to conceal assertedly
‘private’ activity, but whether the
government’s intrusion infringes upon the
personal and societal values protected by
the Amendment.” Oliver v. United States,
466 U.S. 170, 182-83 (1984).17
The government maintains that “no
part of the meeting rooms was obstructed
from Beavers’ line of sight, and thus,
Beavers could see whatever the camera
could capture (albeit at a different angle).”
Appellee’s Br. at 20. As noted above, the
majority accepts this premise, stating that
it is “satisfied that the tapes do not depict
anything material that Beavers himself
was not in a position to hear or see while
in the room. . . .” Maj. Op. at 13 (emphasis
added). However, that is supported only
by the government’s unsuppo rted
assertion. The district court never found
that the camera’s transmissions were no
greater than Beavers’ observations. In
fact, the district court found this was
specifically not the case; it noted that
“[t]here were instances . . . where
perfection was not achieved” such as when
Agent Reilly monitored the sitting room
while Beavers visited the bathroom. A497.
The district court dismissed this
“imperfection” stating: “[t]he brief
exceptions do not warrant suppression of
any or all of the evidence taken on that
ground,” and the court noted the
government’s offer to edit out the images
recorded while Beavers was in the
bathroom. A498. However, the right of
privacy can not be quantified in this
manner. .
As the Court explained in Kyllo v.
United States, 533 U.S. 27, 37 (2001),
“[i]n the home, our cases show, all details
are intimate details, because the entire area
is held safe from prying government eyes.”
Thus, everything and anything inside Lee’s
hotel suite was an intimate detail meriting
Fourth Amendment protection to the
extent that Lee did not knowingly allow
Beavers to see it. All such details “were
intimate details because they were details
16 Those familiar with the James
Bond series will recognize “Q” as the
bureau chief charged with outfitting Bond
with all kinds of unimaginable gadgets.
17 “Since Katz v. United States, 389
U.S. 347 (1967), the touchstone of
[Fourth] Amendment analysis has been the
question whether a person has a
constitutionally protected reasonable
expectation of privacy. The Amendment
does not protect the merely subjective
expectation of privacy, but only those
expectations that society is prepared to
recognize as reasonable.” Oliver v. United
States, 466 U.S. 170, 177 (1984) (internal
citations, quotation marks and parentheses
omitted).

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30
of the home. . . .” Id. at 38. “It matters not
that the search uncovered nothing of any
great personal value to [Lee] . . . A search
is a search, even if it happens to discloses
nothing [of value].” Arizona v. Hicks, 480
U.S. 321, 325 (1987).
The district court’s minimization of
the “imperfection” that occurred, and the
majority’s failure to insure that Agent
Reilly could see nothing more than
Beavers could see, undermines their entire
analysis of Lee’s Fourth Amendment
claim. The problem is that Lee’s
reasonable expectation of privacy was
violated, not that the violation may not
have revealed anything that was “material”
or of evidentiary significance. “The
Fourth Amendment’s protection of the
home has never been tied to measurement
of the quality or quantity of information
obtained.” Kyllo, 533 U.S. at 38. Thus,
“any physical invasion of the structure of
the home, ‘by even a fraction of an inch,’
[is] too much.” Id. at 37 (quoting U.S. v
Silverman, 365 U.S. at 512).18
Lee’s motion to suppress the video
tapes should have been granted not
because of the materiality of evidence that
the governmental intrusion disclosed, but
simply because the government’s actions
violated Lee’s reasonable expectation of
privacy in his hotel suite.
E. Bond v. United States
Although the case arises in a very
different context, Bond v. United States,
529 U.S. 334 (2000), demonstrates the
extent to which society recognizes the
reasonableness of a residuum of privacy
even when some privacy has been
surrendered. The defendant there sought
to suppress evidence obtained when his
carry-on luggage was searched by Border
Patrol Agents who had boarded a bus in
Texas to check on the immigration status
of passengers. As an agent walked
through the bus he squeezed the soft
luggage which passengers had placed in an
overhead storage space. Upon squeezing
the defendant’s bag the agent felt a “brick-
like” object, which the agent assumed to
be drugs. That search resulted in a
warrantless seizure of drugs inside the
defendant’s bag. The defendant moved to
suppress the evidence. The government
argued that the defendant could not have a
reasonable expectation of privacy in
luggage in an overhead compartment on a
bus because “matters open to public
18 The Court also noted in Kyllo that
“any information regarding the interior of
the home that could not otherwise have
been obtained without physical ‘intrusion
into a constitutionally protected area’. . .
constitutes a search.” 533 U.S. at 34.
Thus, a search of Lee’s suite occurred to
the extent that Agent Reilly was able to see
anything that Beavers was unable to see,
notwithstanding the application of the
invited informant doctrine. Obviously, an
even greater intrusion occurred once
Beavers left and the government’s camera
remained behind. See Katz, 389 U.S. at
356 (as noted above, the “restraint was
imposed by the agents themselves, not by
a judicial officer.”).

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31
observation are not protected by the Fourth
Amendment.” 529 U.S. at 337. The Court
concluded that, although bus passengers
expect that their bags may be handled, they
do not expect that “other passengers or bus
employees will, as a matter of course, feel
the bag in an exploratory manner.” Id. at
338-39. Accordingly, although the actual
observation of the defendant’s bag in the
overhead luggage compartment was not
protected by the Fourth Amendment,
contents which could only be revealed by
manipulation of the bag were subject to a
reasonable expectation of privacy. This
was true even though police only
manipulated the outside of the bag while it
remained in place in the luggage rack.
Although Bond’s carry-on luggage “was
not part of his person,” the Court was
concerned that carry-on luggage is
generally used to transport “personal items
that, for whatever reason, [individuals]
prefer to keep close at hand.” Id. at 338.
Accordingly, the Court recognized the
defendant’s expectation of privacy in the
contents of the bag was reasonable.19
In referring to electronic
interception of telephone conversations,
the Seventh Circuit has explained,
“[e]lectronic interception, being by nature
a continuing rather than one shot invasion,
is even less discriminating than a physical
search, because it picks up private
conversations. . . over a long period of
time.” United States v. Torres, 751 F.2d
875, 884 (7th Cir. 1984). This situation is
exponentially exacerbated where, as here,
the government’s ability to see intimate
details of a defendant’s daily activities as
he/she goes about his/her business in the
presumed intimacy of a hotel suite depends
solely on the discre tion of the
unsupervised agent controlling the
monitoring equipment.
[A]lthough we may spend
all day in public places,
when we cannot sleep in our
own home we seek out
another private place to
sleep, whether it be a hotel
room, or the home of a
friend. Society expects at
least as much privacy in
these places as in a
telephone booth – a
temporarily private place
w h o s e m o m e n t a r y
occupants’ expectations of
freedom from intrusion are
recognized as reasonable. . .
.
Minnesota v. Olson, 495 U.S. 91, 99
(1990) (internal citation and quotation
marks omitted).
Absent a pronouncement from the
19 Although Bond involves the
“plain view” doctrine, not the “invited
informant” doctrine of Hoffa, it is
nevertheless instructive as it clearly
supports the conclusion that Lee’s
expectation of privacy in the contents of
his hotel room was reasonable to the
extent that he did not allow Beavers to see
his effects.

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32
Supreme Court, or controlling precedent
from this court, I simply can not accept the
idea that a society that defines privacy as a
fundamental freedom can tolerate the
warrantless intrusion that occurred here.20
F. Myers, Yonn and Padilla
In affirming the district court, the
majority adopts the analysis in United
States v. Myers, 692 F.2d 823 (2d Cir.
1982) and United States v. Yonn, 702 F.2d
1341 (11th Cir. 1983) and rejects the
analysis of the Court of Appeals for the
First Circuit in United States v. Padilla,
520 F.2d 526 (1st Cir. 1975). However,
Yonn does not involve video surveillance
and is therefore of extremely limited value
to the discussion here for all the reasons I
have explained. Myers is also of very
l i m it e d a p p l i ca tion be caus e th e
conversations there were not recorded in
Myers’ hotel room, nor was he an
overnight guest in the room where the
conversations were recorded.
Myers went to a townhouse to meet
with individuals who turned out to be
government agents. The court’s analysis
of Myers’ privacy interest consumes only
a single sentence in the lengthy opinion.
The court states: “[the defendant]’s
conversations with undercover agents in
whom he chose to confide were not
privileged, and mechanical recordings of
the sights and sounds to which the agents
could have testified were proper
evidence.” 692 F.2d at 859. The court
then cites to United States v. White, 401
U.S. 745 (1971).
White involved a defendant who
was convicted based upon evidence police
obtained by using a “radio transmitter” to
transmit and secretly record incriminating
conversations between the defendant and
the government informant. Inasmuch as
White involved audio transmissions rather
than video transmissions, and the Myers
Court failed to discuss why the video
transmissions had no more impact on a
subject’s privacy than the audio
transmissions in White, I am remain
unpersuaded.
On the other hand, Padilla involved
video surveillance inside a residence and is
20 I can not help but wonder if my
colleagues would be as complacent about
this situation if presented with a male
agent capable of remotely viewing a
female suspect in her hotel suite at any
hour of the day or night with only self-
imposed limitations shielding the female
suspect from the wandering eye of the
male agent. Clearly, given the analysis of
my colleagues that situation would not
violate the female suspect’s privacy as
long as, at some point in the day, she
allowed an informant to enter the sitting
area of her hotel suite.
I admit that realistic considerations
of taste as well as concerns over a jury’s
reaction to such an intrusion may preclude
that situation from ever occurring. But
Katz seeks to insure that privacy
protections be rooted in stronger stuff than
the judgment of a given agent or concerns
about trial tactics.

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33
much closer to the situation here, but the
court’s analysis reads as though partly
influenced by a concern for the potential
abuses of emerging surveillance
technology. My colleagues criticize those
concerns noting: “Although Padilla was
decided more than a quarter century ago
and has not been followed in any other
circuit, we are not aware of evidence that
the installation of recording devices to
monitor meetin gs atten de d b y a
cooperating individual has led to the sort
of abuse that the Padilla Court feared.”
Maj. Op. at 12. There are several reasons
why that criticism is less than convincing.
Initially, I note that the issue of
whether this technology has been abused
was never raised here and there is
absolutely no record one way or the other
as to the extent of government any abuses
of sophisticated surveillance technology.
In addition, very few cases have addressed
the problem of video surveillance
involving an invited informant. In one that
has, a miniature camera was carried in the
informant’s jacket and transmitted video
images to a nearby agent. See United
States v. Davis, 326 F.3d 361, 363 (2d Cir.
2003).1 3 The court rejected the
defendant’s Fourth Amendment argument
stating: “[b]ecause the hidden camera did
not capture any areas in which Davis
retained a privacy interest, no Fourth
Amendment violation occurred.” 326 F.3d
at 366. As I note above, no such showing
has been made here, and the district court
found to the contrary on at least two
occasions when Beavers was in the suite.
Yet the court in Davis was careful to limit
is holding to only those things that the
informer could see w hile in the
defendant’s presence. The court
specifically stated: “We . . . extend the rule
of White and Lopez to video recordings
that capture images visible to the
consensual visitor. . . .” Id. at 363.
G. Dangers Inherent in Warrantless
Video Surveillance
Although sensory enhancement has
not displaced the guarantees of the Fourth
Amendment, “[i]t would be foolish to
contend that the degree of privacy secured
to citizens by the Fourth Amendment has
been entirely unaffected by the advance of
technology.” Kyllo, 533 U.S. 27, 33-34
(2001). However, given the evolving
sophistication of technology, it is
increasingly i m p erative th at th e
fundamental liberties guaranteed under the
Fourth Amendment not be eroded by the
warrantless use of devices that allow the
government to see through curtains, walls
and doors.
In Kyllo, the Court addressed the
tension between law enforcement’s
innovative use of technology, and the right
to privacy. The Court stated:
While it may be difficult to
refine Katz when the search
of areas such as telephone
13 Since the camera was in the
informant’s jacket, there is a stronger basis
to assume that the informant’s field of
vision closely approximated that of the
monitoring agent than exists on this
record.

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34
booths, automobiles,
or even the curtilage
a n d u n c o v e r e d
p o r t i o n s o f
residences is at issue,
in the case of the
search of the interior
of homes . . . there is
a ready criterion,
with roots deep in
the common law, of
t h e m i n i m a l
e x p e c t a t i o n o f
privacy that exists,
a n d t h a t i s
acknowledged to be
reasonable. To
withdraw protection
of this minimum
expectation would be
to perm it police
technology to erode
t h e p r i v a c y
guaranteed by the
Fourth Amendment.
533 U.S. at 34 (emphasis in original).14
The Court was careful to reaffirm
Katz in the face of challenges presented by
increasingly sophisticated technology. In
doing so, the Court expressed concerns
very similar to the concerns in Padilla that
my colleagues dismiss. Writing for the
Court, Justice Scalia states: “[r]eversing
[the approach outlined in Katz] would
leave the homeowner at the mercy of
advancing technology . . . that could
discern all human activity in the home.”
533 U.S. at 35-36. The Court also
mentioned that “[t]he ability to ‘see’
through walls and other opaque barriers is
a clear, and scientifically feasible, goal of
l a w e n f o r c e m e n t r e s e a r c h a n d
development.” Id. at 36 n.3 (citing The
N a t i o n a l L a w E n f o r c e m e n t a nd
Corrections Technology Center website,
www.nlectc.org/techproj/, as visited on
May 3, 2001).
In Silverman, the Court also
mentions electronic devices that, according
to the defendant there, warranted revisiting
prior cases including Katz. The Court
explains its refusal to do so as follows:
We are told that re-
examination of the rationale
of those cases . . . is now
essential in the light of
r e c e n t a n d p r o j e c t e d
developments in the science
of electronics. We are
favored (sic) w ith a
description of a device
known as the parabolic
microphone which can pick
up a conversation three
hundred yards away. We
a r e t o l d o f a s t i l l
experimental technique
14 Although the Court there focused
on “the interior of homes,” I have already
explained that no distinction can be drawn
for our purposes between homes, and the
interior of Lee’s hotel suite, Olson, 495
U.S. at 99, and the majority does not
suggest the contrary.

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35
whereby a room is
f l o o d e d w i t h a
certain type of sonic
wave, which, when
perfected, will make
i t p o s s i b l e t o
overhear everything
said in a room
without ever entering
it or even going near
it. We are informed
of an instrument
which can pick up a
conversation through
a n o p e n o f f ic e
w i n d o w o n t h e
opposite side of a
busy street.
Silverman, 365 U.S. at 508 (internal
quotation marks and citation omitted).15
At the risk of appearing alarmist, I
think it important to note that, in rejecting
defendant’s invitation to reexamine Court
precedent because of the evolving
technology, the Court explained: “We need
not here contemplate the Fou rth
Amendment implications of these and
other frightening paraphernalia which the
vaunted marvels of an electronic age may
visit upon human society.” 365 U.S. at
509.
The majority lists three reasons for
rejecting the concerns reflected in Padilla
and doubting that “law enforcement [is]
likely to find” abuse of technology “an
alluring strategy.” Maj. Op. at 12. My
colleagues rely upon the possibility of a
civil penalty under Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388
15 In Silverman, the owner of a
vacant house had granted p olice
permission to use that property to conduct
a surveillance of an attached property
whe re police suspected ga mb ling
operations were being conducted. They
conducted the surveillance by means of a
long “spike microphone” which they
passed through the properties’ joint wall
until it made contact with a heating duct in
the target property. That “duct became in
effect a giant microphone, running though
the entire house occupied by appellants.”
365 U.S at 506-07 (internal citation
omitted).
The case is distinguishable from the
situation here not only because it involves
only audio monitoring, but also because
the Court’s ruling was based on the fact
that the defendant did not consent to the
intrusion that resulted from the spike mike
contacting the heating duct in his property.
“[T]he officers overheard the petitioners’
conversations only by usurping part of the
petitioners’ house or office – a heating
system which was an integral part of the
premises occupied by the petitioners, a
usurpation that was effected without their
knowledge and without their consent.” Id.
at 511. Here, Beavers’ consent to the
placing of the camera limits Silverman’s
applicability. However, as explained
above, there remains an issue of Lee’s
reasonable expectation of privacy under
Hoffa and its progeny.

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36
(1971), the need to acquire a warrant or
permission of a cooperating individual to
enter the premises to install a monitoring
device, and skepticism th at law
enforcement has anything to gain because
“[a] video tape . . . generally reveals
whether a cooperating individual is
present, and without proof of the presence
of the cooperating individual, the tape is
inadmissible.” Maj. Op. at 13.
I must respectfully characterize the
majority’s trivialization of the potential for
abuse as naive. Operation of the
technology mentioned in Silverman and
Kyllo requires neither entry nor permission
to enter an area of expected privacy. In
Kyllo, Justice Scalia mentions several
technological innovations that require
neither physical entry nor consent. These
“include a ‘Radar-Based Through-the-
Wall Surveillance System,’ ‘Handheld
U l t r a s o u n d T h r o u g h t h e W a l l
Surveillance,’ and a ‘Radar Flashlight’ that
‘will enable law enforcement officers to
detect individuals through interior building
walls.’” 533 U.S. at 36 n.3.
In addition, though my colleagues
contend that, absent consent, the warrant
requirement can be relied upon to prevent
abuse of such technology, the facts before
us should readily dispose of that notion. It
is clear that none of the agents involved in
monitoring Lee’s hotel suite decided to err
on the side of caution and obtain a warrant
prior to installing a video camera that
could transmit video of his living area, as
well as parts of the bedroom and bathroom
throughout the day and night. In fact, the
record shows that the possibility of a
warrant was never even discussed with
Agent Reilly. Moreover, Lee clearly did
not consent to the FBI installing a camera
that could potentially broadcast some
images of his bedroom and bathroom
activities throughout the day and night. As
explained above, we can not rely upon
technicalities of consent as found in
property law to stretch Beavers’ consent
that far. See Stoner v. California, 376 U.S.
483, 489 (1964). Thus, I do not think the
legal analysis in Padilla can be dismissed
because the opinion might be construed as
“alarmist.” Rather, the court there
expressed the very concerns the Fourth
Amendment was intended to protect;
concerns that the Supreme Court also
expressed in Silverman and Kyllo.
The majority does concede that it is
not willing to go “so far as to say that there
is no risk of the type of abuse that worried
the Padilla Court,” but concludes that “the
risk is not great enough to justify the
holding of the Padilla Court.” Maj. Op. at
13. However, the holding in Padilla rests
not upon the risks the court properly
identified, but on a proper reading of
Supreme Court precedent. The court
explained: “We do not read either White or
its predecessors, Katz v. United States, and
Hoffa v. United States, to go farther than to
say that a person has no justifiable
expectation that one with whom he
converses will not tell the authorities of the
conversation, and that accurate recordings
of the conversation are therefore
permissible.” 520 F. 2d 526, 527 (citations
omitted). See also United States v.
Shabazz, 883 F. Supp. 422 (D. Minn.

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37
1995) (relying upon Padilla to suppress
audio and v i d e o r e co r d i n g s of
conversations in the defendant’s hotel
room).
M y coll e a g u e s ’ r e m a i n ing
justifications for dismissing the concerns
expressed in Padilla are eq ually
unpersuasive. The “remedy” of a Bivens
action is often no remedy at all. The
Fourth Amendment is intended to afford a
right of privacy, not to compensate
individuals whose privacy has been
violated. Moreover, limitations that arise
under the doctrine of qualified immunity
may make it exceedingly difficult to
establish the predicate showing of
unreasonableness required to sustain an
action under Bivens. where the alleged
transgression involves the innovative
application of new technology. See
Saucier v. Katz, 533 U.S. 194 (2001).16
Lastly, my colleagues doubt that
“law enforcement would have much to
gain from monitoring conversations that
occur when a cooperating individual is not
present. A video tape of a conversation
generally reveals whether a cooperating
individual is present, and “without proof
of the presence of the cooperating
individual, the tape is inadmissible.” Maj.
Op. at 13. However, that misses the point
on several fronts as I have already
explained. The informant’s presence does
not guarantee that he/she sees the same
thing that the government transmits and
records and it is therefore not tantamount
to consent. More importantly, however, as
the Court clearly noted in Kyllo, it is the
intrusion, not the evidence that is the
problem. The suppression of the evidence
is only important because of its impact on
police behavior.17
III. Conclusion
The Constitution’s primary bulwark
against arbitrary intrusions into our privacy
is the warrant requirement of the Fourth
Amendment. “The [Fourth Amendment]
reflects the recognition of the Framers that
certain enclaves should be free from
arbitrary government interference.” Oliver
v. United States, 466 U.S. 170, 178 (1984).
The presence of a search
warrant serves a high
function. Absent some
grave emergency, the Fourth
Amendment has interposed
a magistrate between the
citizen and the police. This
was done not to shield
criminals nor to make the
16 Under Saucier, a Bivens plaintiff
must first establish that legal requirements
in a given situation would have been clear
to a reasonable officer. Bennett v. Murphy,
274 F.3d 133, 136-37 (3d Cir. 2001). The
speed of technology’s advance will often
make that an insurmountable hurdle to a
B i v e ns plaintiff challengin g th e
government’s warrantless use of a new
technology.
17 For a general discussion of the
purposes of the exclusionary rule, see
Terry v. Ohio, 392 U.S. 1, 13 (1968).

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38
home a safe haven
for illegal activities.
It was done so that
an objective mind
might weigh the need
t o i n v a d e t h a t
privacy in order to
enforce the law. The
right of privacy was
deemed too precious
to entrust to the
discretion of those
whose job is the
detection of crime
and the arrest of
criminals.
McDonald v. United States, 335 U.S. 451,
455-56 (1948).
I believe the government’s end run
around that “high function” here requires
that we reverse the district court’s ruling
on Lee’s Fourth Amendment claim. I have
already explained that, although Agent
Reilly’s restraint may be commendable
and demonstrate the government’s good
faith, that is not sufficient given these
facts. Rather, as I explained above, a
warrant is required to insure that such
invasions are warranted and conducted in
an appropriate manner. The invited
informant doctrine only increases the need
to obtain a warrant in advance of this type
of video surveillance. “No police officer
would be able to know in advance whether
his through-the-wall surveillance picks up
intimate details – and thus would be
unable to know in advance whether it is
constitutional.” Kyllo, 533 U.S. at 39
(internal quotation marks omitted). “[A]
search which is reasonable at its inception
may violate the Fourth Amendment by
virtue of its [subsequent] intolerable
intensity and scope.” Terry, 392 U.S. at 17.
Katz was not the first time that the
Court has declared that liberties protected
by a warrant requirement can not be left to
the discretion of law enforcement officers
absent exigent circumstances not involved
here. More than half a century ago, the
Supreme Court declared:
T]he point of the Fourth
Amendment, which is often
not grasped by zealous
officers, is not that it denies
law enforcement the support
of the usual inferences
which reasonable men draw
f r o m e v i d e n c e . I t s
protection consists in
r e q u i r i n g t h a t t h o s e
inferences be drawn by a
n e u t r a l a n d d e t a c h ed
magistrate instead of being
judged by the officer
engaged in the o ften
competitive enterprise of
ferreting out crime.
Johnson v. United States, 333 U.S. 10, 13-
14 (1948). That is why the warrant
requirement applies in situations such as

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39
the one before us here.18
I can not endorse my colleague’s
willingness to entrust the fundamental
right of privacy to law enforcement’s
discretion. Accordingly, I must
respectfully dissent from my colleagues’
analysis of Lee’s Fourth Amendment
claim.
18 I n a r g u i n g t h a t t h e
government was obligated to obtain a
warrant for this kind of electronic
surveillance, I realize that the authority of
the federal courts to issue search warrants
authorizing video surveillance is uncertain
under Title III of the Omnibus Crime
Control and Safe Streets Act of 1968. See
18 U.S.C. § 2511 (a section of Title III).
We have never determined whether
Title III authorizes federal courts to issue
warrants for video surveillance, and there
is considerable authority that it doesn’t.
See United States v. Falls, 34 F.3d 674,
679 (8th Cir. 1994); United States v.
Koyomejian, 970 F.2d 536, 539 (9th Cir.
1992); United States v. Torres, 751 F.2d
875, 880 (7th Cir. 1984). However,
although these courts have concluded that
Title III does not give federal courts that
authority, courts have consistently found
that authority under Fed. R. Crim. P. 41(b),
as well as under the inherent supervisory
powers of federal courts, so long as any
warrant that may issue contains the
safeguards of the restrictions embodied in
Title III. See, e.g., In the Matter of the
Application of the United States of
America for an Order Directing X to
Provide Access to Videotapes, 03-MC-89,
2003 U.S. Dist. LEXIS 15227 at *4, *5
n.1, *9 n.3 (D. Md. Aug. 22, 2003); see
also Falls, 34 F.3d 678-79; Koyomejian,
970 F.2d at 542; Torres, 751 F.2d at 877-
78.

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