## Facts

- Federal prosecutors charged six defendants with participating in an ongoing conspiracy to distribute cocaine sourced from Colombia and distributed through California to other markets.
- Villabona and Bennett allegedly organized and supervised the operation; Barona and Martinez delivered cocaine to McCarver and Harris for further distribution.
- U.S. authorities investigated the conspiracy through “Operation Pisces” and related efforts, including arrests and surveillance tied to money laundering and drug trafficking.
- While Villabona and Bennett were abroad (Denmark and Italy), foreign authorities intercepted telephone calls under their domestic legal procedures, after requests for assistance and coordination with U.S. agents.
- Recordings of the foreign interceptions were introduced at trial as major evidence against the defendants.
- The investigation also included domestic evidence, including seizures of large quantities of cocaine during transport and domestic wiretaps on cellular phones used by Villabona.
- A multi-count indictment included drug conspiracy and substantive offenses; Villabona and Bennett were additionally convicted of operating a continuing criminal enterprise (CCE) under 21 U.S.C. § 848.
- The district court denied suppression motions and entered judgments of conviction; defendants appealed.

## Issues

1. Whether foreign wiretap interceptions conducted abroad, with U.S. participation, required suppression under the Fourth Amendment because they did not satisfy U.S. wiretap procedures.
2. Whether Villabona’s and Bennett’s CCE convictions were invalid because the jury instructions permitted counting legally ineligible individuals as the five “supervisees” required by 21 U.S.C. § 848.
3. Whether other challenged rulings (including evidentiary, sufficiency, and sentencing issues) required reversal beyond the CCE counts.

## Decision

- The court affirmed admission of the foreign wiretap evidence and rejected Fourth Amendment suppression arguments as to those interceptions.
- The court reversed the CCE convictions of Villabona and Bennett due to erroneous jury instructions on the “five or more persons” management/supervision element and remanded for further proceedings on those counts.
- The court otherwise affirmed the remaining convictions and largely affirmed the sentences.

## Legal Principles

- The Fourth Amendment generally does not apply to searches or interceptions conducted by foreign officials abroad; constitutional scrutiny may apply where U.S. agents participate sufficiently to constitute a joint venture.
- In a joint-venture foreign interception conducted overseas, Fourth Amendment reasonableness is evaluated in light of the host nation’s law; evidence is ordinarily admissible if the surveillance complied with that foreign legal regime and is reasonable under those standards.
- A CCE conviction under 21 U.S.C. § 848 requires proof that the defendant acted in concert with five or more persons whom the defendant organized, supervised, or managed; jury instructions must correctly limit who may be counted to satisfy this element.
- Where jury instructions allow the jury to rely on legally ineligible “supervisees,” and the reviewing court cannot determine whether the verdict rested on permissible individuals, the CCE conviction must be reversed.

## Conclusion

The Ninth Circuit held that foreign wiretaps conducted abroad as part of a U.S.-assisted investigation were admissible when authorized under the host country’s law, but it reversed and remanded the CCE convictions because the jury instructions risked allowing the jury to satisfy § 848’s supervisee element with ineligible individuals; all other convictions were largely affirmed.


United States v. Barona, 56 F.3d 1087 (9th Cir. 1995)