S.D.Fla.: Observing MLAT search in Canada not enough to invoke “joint venture” doctrine

The government’s MLAT request to Canada to seize records there and then being there to observe for relevance of what was seized was not a “joint venture” when Canada acted on the request. A “joint venture” requires actual involvement, not observation. United States v. Kachkar, 2018 U.S. Dist. LEXIS 218445 (S.D. Fla. Dec, 26, 2018), adopted, 2019 U.S. Dist. LEXIS 1665 (S.D. Fla. Jan. 4, 2019):

Contrary to Defendant’s contention, this attenuated and subordinate level of participation by FDIC-OIG agents in Canada’s compliance with the MLAT Request does not satisfy the “joint venture doctrine.” See Behety, 32 F.3d at 511 (DEA agents being present and videotaping a foreign search “does not constitute the level of participation [the ‘joint venture’] exception contemplates.”); United States v. Rosenthal, 793 F.2d 1214, 1231 (11th Cir. 1986) (American agents being apprised of Colombian officials’ plans to search defendant’s residence and their being present during the search and seizure conducted by the Colombian officials did not satisfy the “joint venture doctrine”).

By contrast, the only two cases cited by Defendant in which the “joint venture doctrine” was applied involved a substantial level of involvement on the part of U.S. law enforcement personnel. In United States v. Peterson, 812 F.2d 486 (9th Cir. 1987) the “DEA was involved daily in translating and decoding intercepted transmissions, as well as advising the Philippine authorities of their relevance.” Id. at 490. In United States v. Emery, 591 F.2d 1266, 1268 (9th Cir. 1978), the defendant challenged the “[f]ailure of the Mexican authorities to comply with the requirements of Miranda.” Id. at 1267. The court found that the “joint venture doctrine” applied because D.E. A. agents “substantially participated in the entire arrest” of the defendant. Id. at 1268. Specifically, “D.E.A. agents alerted the Mexican police of the possible activity, coordinated the surveillance at the Guaymas airport, supplied the pilot for the plane and gave the signal that instigated the arrest once it was determined that the marijuana was in the suitcase [carried by the defendant].” Id. at 1268.

Having found that the “joint venture doctrine” does not apply to this case, the undersigned concludes that Kachkar’s Fourth Amendment rights were not violated by Canada’s compliance with the MLAT Request.