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United States v. Faagai

United States Court of Appeals, Ninth Circuit

September 7, 2017

United States of America, Plaintiff-Appellee,
Jacob Del Mundo Faagai, AKA Jacob Faagai-Del Mundo, AKA Jake, Defendant-Appellant.

          Argued and Submitted February 24, 2017 Honolulu, Hawaii

         Appeal from the United States District Court for the District of Hawaii Susan Oki Mollway, Senior District Judge, Presiding D.C. No. 1:13-cr-00653-SOM-6.

          Thomas M. Otake (argued), Honolulu, Hawaii, for Defendant-Appellant.

          Chris A. Thomas (argued), Assistant United States Attorney; Florence T. Nakakuni, United States Attorney; United States Attorney's Office, Honolulu, Hawaii; for Plaintiff-Appellee.

          Before: Alex Kozinski, Michael Daly Hawkins, and Carlos T. Bea, Circuit Judges.


         Criminal Law

         The panel affirmed the district court's order denying the defendant's motion to suppress contraband seized during a warrantless search of the defendant's truck.

         The panel held that under the totality of the circumstances, there was probable cause to believe that contraband would be found in the truck, and that the search was therefore permissible under the automobile exception to the warrant requirement.

         Dissenting, Judge Kozinski wrote that the government, whose case rests on four meetings between the defendant and a suspected meth dealer, came nowhere close to meeting the probable cause standard, where officers, who observed most of the meetings and wiretapped the dealer's phone, never saw a handoff of money or contraband, nor heard an explicit mention of drugs.



         I. Background

         From August to November 2012, John Penitani ("Penitani") was the primary target of a court-authorized wiretap investigation. The purpose of the investigation was to identify Penitani's drug trafficking organization, including his sources of methamphetamine.

         Law enforcement agents began investigating Penitani in July 2012, based on the seizure of 14 ounces of methamphetamine and approximately $3, 600 from Penitani's cousin, Makusi Penitani ("Makusi"). Makusi told law enforcement agents that he had obtained the seized methamphetamine from Penitani and that he had been purchasing approximately one to two pounds of methamphetamine a month from Penitani.[1]

         Appellant Jacob Del Mundo Faagai ("Faagai") was introduced to Penitani by Julius Mitchell ("Mitchell"). Law enforcement agents knew that Mitchell and Penitani had previously engaged in three illegal drug transactions before this introduction took place.[2] In addition, Mitchell had assisted Penitani in collecting a drug debt that Makusi owed to Penitani.

         On October 29, 2012, Penitani met Faagai alone at a restaurant in West Oahu. Beforehand, Penitani asked Faagai in an intercepted telephone conversation: "You by yourself[, ] eh?" Faagai responded, "Yeah, yeah automatic." Agents observed Penitani and Faagai at the restaurant, but could not hear what the two men discussed. In an intercepted telephone call after the meeting, Penitani asked Mitchell whether Faagai was "trustworthy, " and told Mitchell, "I said I just hope he don't try to do me wrong."

         Later that same day, agents intercepted another call between Penitani and Faagai, in which Faagai was attempting to locate Penitani at the Pearlridge Shopping Center for what appeared to be a pre-planned meeting. Drug Enforcement Administration Special Agent Clement Sze ("Special Agent Sze") testified that he believed that although agents were not able to conduct surveillance of that meeting, they believed, based on the entirety of their investigation, that Penitani and Mitchell were meeting Faagai to supply him with methamphetamine.

         On November 4, 2012, law enforcement agents seized five pounds of methamphetamine from a courier whom Penitani's supplier had sent to Hawaii.

         On November 5, 2012, agents intercepted a text message from Faagai to Penitani in which Faagai said that he was going to Costco in Kapolei "to buy food for [his] house" and that if Penitani "gotta buy food for [Penitani's] house, " they should meet at Costco. Special Agent Sze testified that he believed that Faagai was using "food" as a code word for "money." He also testified that he believed that Faagai wished to arrange a meeting in which he would pay Penitani for methamphetamine that Penitani fronted to him on October 29.[3] Defense counsel did not object to this opinion testimony. Agents traveled to the Costco in Kapolei and observed Penitani and his then girlfriend, Keschan Taylor, exit Costco and drive away. Agents did not see Faagai in the area, but Special Agent Sze testified that the agents believed that the meeting between Faagai and Penitani had already taken place.

         Four hours later, agents intercepted a text message from Penitani to Faagai stating, "Man thanks to this broad I lost ten large. Man sorry taking long with da tools bro." Special Agent Sze testified that he believed that Penitani was indicating to Faagai that he had lost $10, 000, and that "tools" referred to methamphetamine. Once again, ...

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