Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding D.C. No. 2:09-cr-02035-EFS-1
The opinion of the court was delivered by: M. Smith, Circuit Judge:
Argued and Submitted October 9, 2012--Seattle, Washington
Before: Alex Kozinski, Chief Judge, A. Wallace Tashima, and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge M. Smith
The panel affirmed in part and reversed in part a criminal judgment in a case in which a jury convicted the defendant of offenses relating to the sale of eagle parts.
The panel held that an undercover agent's warrantless use of a concealed audio-video device in a home into which he has been invited by a suspect does not violate the Fourth Amendment.
The panel held that Count 2 charging the defendant with offering to sell Golden Eagle tails, in violation of the Bald and Golden Eagle Protection Act, and Count 3 charging the defendant with the subsequent sale of a Golden Eagle tail, in violation of the Lacey Act, are multiplicitous because the offer to sell is a lesser included offense. The panel held that Count 4 charging the defendant with offering to sell a pair of eagle plumes from a collection of plumes and Count 5 charging him with the subsequent sale of a pair of plumes, both premised on a violation of the Bald and Golden Eagle Protection Act, are likewise multiplicitous.
The panel rejected the defendant's objection to the admission of certain photographs of eagles and other bird parts under Fed. R. Evid. 403.
The panel held that the district court did not err under the Confrontation Clause by permitting officers to testify to receiving complaints from unnamed tribal members that the defendant was selling eagle parts, when the complaints were offered not to prove that the defendant was selling eagle parts, but merely to explain why federal agents began investigating him.
Defendant-Appellant Ricky Wahchumwah appeals his jury conviction for offenses relating to the sale of eagle parts. He contends that his Fourth Amendment rights were violated when an undercover agent used a concealed audio-video device to record an illegal transaction Wahchumwah conducted in his home. We reject this argument because the Fourth Amendment's protection does not extend to information that a person voluntarily exposes to a government agent, including an undercover agent. See Hoffa v. United States, 385 U.S. 293, 302 (1966). We also reject Wahchumwah's Confrontation Clause challenge, and his objection to the admission of certain photographs of eagles and other bird parts at his trial under Federal Rule of Evidence 403. However, we reverse Wahchumwah's conviction on Counts 2 or 3 and Counts 4 or 5 because those counts are multiplicitous.*fn2
FACTUAL AND PROCEDURAL BACKGROUND
United States Fish and Wildlife Service agents began an undercover investigation of Wahchumwah based on anonymous complaints that he was selling eagle parts. As part of this investigation, Special Agent Robert Romero began developing a rapport with Wahchumwah in April 2008, at a powwow in Missoula, Montana. Romero claimed to have an interest in eagle feathers, and showed Wahchumwah a Golden Eagle tail he had brought with him. Later that evening, Romero bought a set of eagle wings from Wahchumwah for $400.
The following month, Romero sent Wahchumwah a text message asking if Wahchumwah had any immature Golden Eagle tail feathers. Wahchumwah responded in the affirmative, and sent Romero photos depicting three Golden Eagle tails. The exchange culminated in Romero's purchasing a Golden Eagle tail from Wahchumwah.
On October 7, 2008, Romero sent Wahchumwah a text message stating that he would be visiting family who lived near Wahchumwah the following week and would like to stop by Wahchumwah's home. Wahchumwah agreed, and a week later Romero visited Wahchumwah in his residence wearing a concealed audio-video recording device. During the visit, Wahchumwah showed Romero a blue spiral notebook containing a number of eagle plumes. Romero examined the plumes and purchased a pair for ...