11-1237-cr

United States of America v. Getto

In the

United States Court of Appeals

For the Second Circuit

________

No. 11-1237-cr

UNITED STATES OF AMERICA,

Appellee,

v.

MATTHEW GETTO,

Defendant-Appellant.

________

Appeal from the United States District Court

for the Southern District of New York.

No. 09 CR 667 (HB) ― Harold Baer, Jr., Judge.

________

ARGUED: OCTOBER 24, 2012

DECIDED: SEPTEMBER 9, 2013

________

Before: CABRANES, SACK and CARNEY, Circuit Judges.

________
2 No. 11-1237-cr

In this appeal we consider two issues: (1) whether 

the United States District Court for the Southern District 

of New York (Harold Baer, Jr., Judge) erred in denying 

the motion of defendant-appellant Matthew Getto, an 

American citizen, to suppress evidence obtained 

through searches and surveillance undertaken in Israel 

by the Israeli National Police following a request by 

American law enforcement pursuant to a mutual legal 

assistance treaty; and (2) whether the District Court 

committed procedural error in calculating Getto’s 

sentence. 

We hold that ongoing collaboration between an 

American law enforcement agency and its foreign 

counterpart in the course of parallel investigations does 

not—without American control, direction, or an intent 

to evade the Constitution—give rise to a relationship 

between the two entities sufficient to apply the 

exclusionary rule to evidence obtained abroad by 

foreign law enforcement. We also hold that, in the 

circumstances presented, the alleged warrantless 

searches and surveillance do not shock the judicial 

conscience. As a result, the District Court correctly 

denied Getto’s motion to suppress the evidence 

gathered through foreign searches and surveillance. 

We further conclude that the District Court 

committed procedural error by failing to explain 

adequately the sentence it imposed. Accordingly, we 

AFFIRM the judgment of conviction in all respects, 

except for the sentence; and REMAND the cause to the 

District Court with instructions to vacate Getto’s 
3 No. 11-1237-cr

sentence and resentence him in a manner consistent 

with this opinion.

________

STEPHANIE M. CARVLIN, Law Office 

of Stephanie M. Carvlin, New York, 

NY, for Matthew Getto.

STEVE C. LEE (Avi Weitzman, Justin 

S. Weddle, Assistant United States 

Attorneys, on the brief), Assistant 

United States Attorney, for Preet 

Bharara, United States Attorney for 

the Southern District of New York, 

for the United States of America.

________

JOSÉ A. CABRANES, Circuit Judge:

Getto, an American citizen, appeals from a March 

29, 2011 judgment of conviction entered by the United 

States District Court for the Southern District of New 

York (Harold Baer, Jr., Judge), sentencing Getto to 150 

months’ imprisonment and imposing restitution in the 

amount of $8,200,000. We consider: (1) whether the 

District Court erred in denying defendant Matthew 

Getto’s motion to suppress evidence obtained through 

searches and surveillance undertaken in Israel by the 

Israeli National Police (“INP”), following a Mutual 

Legal Assistance Treaty (“MLAT”) request by American 

law enforcement; and (2) whether the District Court 
4 No. 11-1237-cr

committed procedural error in calculating Getto’s 

sentence. 

We hold that ongoing collaboration between an 

American law enforcement agency and its foreign 

counterpart in the course of parallel investigations does 

not—without American control, direction, or an intent 

to evade the Constitution—give rise to a relationship 

sufficient to apply the exclusionary rule to evidence 

obtained abroad by foreign law enforcement. 

Consequently, the District Court correctly denied 

Getto’s motion to suppress the evidence gathered 

through foreign searches and surveillance. We further 

conclude that the District Court committed procedural 

error in failing adequately to explain the sentence it 

imposed. Accordingly, we affirm Getto’s conviction, but 

remand the cause to the District Court with instructions 

to vacate Getto’s sentence and resentence him in a 

manner consistent with this opinion.

I. BACKGROUND

Following an October 18, 2010 bench trial on 

stipulated facts, Getto was convicted of a single count of 

conspiracy to commit mail fraud and wire fraud 

through telemarketing, in violation of 18 U.S.C. §§ 1349, 

2326(2). Getto’s conviction stemmed from his 

involvement in a conspiracy that had defrauded 

American victims through a lottery telemarketing 

scheme operated out of three so-called “boiler rooms” at 

different locations in Israel. A member of the conspiracy 

would purchase batches of lottery tickets containing the 
5 No. 11-1237-cr

contact information of lottery entrants, which lotteries 

and sweepstakes typically sell to legitimate businesses

for marketing purposes. The conspirators, billing 

themselves as lawyers or other staff working for a 

fictional lottery, then called unsuspecting lottery 

entrants and told them that they had won substantial 

cash prizes in an international sweepstakes. Under this 

guise, the conspirators would gather further

information about the lottery entrants—such as their 

age and finances—to target, in particular, wealthy, 

elderly victims. At the last step, they would tell their 

targets that certain “taxes and fees” needed to be paid at 

the outset. The unwitting victims would then be asked 

to send the sums to the conspirators in the hopes of 

obtaining the phantom cash prize.

The workers in the three boiler rooms were 

organized into groups, based on function, with 

corresponding levels of compensation. “Qualifiers” 

would call the victims in the first instance to obtain 

personal and financial information.1If the victims met 

certain criteria, their information was then passed along 

to “Shooters.” Shooters had the more delicate task of 

informing the victims that they had won a prize and of 

persuading them to send money. To do this, Shooters 

would often pose as employees of a fake law firm or as

officials from the Internal Revenue Service, even going 

so far as faxing their targets fraudulent documents as 

 

1 Qualifiers were paid 5% of the gross proceeds obtained from 

their victims and a daily salary equivalent to $50. 
6 No. 11-1237-cr

part of the ruse.

2 Shooters would also often repeatedly 

bilk the same victims, claiming, for instance, that the 

prize had doubled and additional fees needed to be 

paid.3 The operations at each boiler room were 

ultimately overseen by “Managers,” who kept records, 

distributed proceeds, and assisted in swindling the 

victims. 

Getto joined the conspiracy in October 2007, as a 

Shooter in a boiler room on Ha’Arad Street in Tel Aviv, 

Israel (“Ha’Arad room”). At the time, there was only 

one other boiler room, which was located in Eilat, Israel

(“Eilat room”). In March 2009, Getto leased an 

additional boiler room, located on Ha’Negev Street in 

Tel Aviv (“Ha’Negev room”). He served as both a 

Manager and a Shooter in the Ha’Negev room; he also 

had an ownership stake in the Ha’Negev room, which 

entitled him to a greater share of its profits. 

Sometime in late 2008, based on a tip from a 

witness in the United States, the Federal Bureau of 

Investigation (“FBI”) initiated an investigation into the

conspiracy. Operating undercover, FBI agents planted

“dummy” lottery tickets containing their own contact 

information in shipments bound for an identified 

conspirator, and posed as victims when subsequently 

contacted by members of the conspiracy in early 2009. 

 

2 Shooters were paid a commission ranging from 20-25% of the 

gross proceeds obtained from their victims.

3

In this manner, some elderly victims ultimately lost hundreds 

of thousands of dollars to defendant and his confederates.
7 No. 11-1237-cr

This tactic allowed the agents to trace the telephone 

numbers and bank accounts used by the conspirators. 

On April 20, 2009, American law enforcement 

authorities filed a request, pursuant to the MLAT

between the United States and Israel4for the Israeli 

National Police to investigate the conspiracy. As part of 

the MLAT request, the FBI provided the INP with the 

details of the investigation in the United States, 

including Israeli phone numbers belonging to suspected

conspirators. Using this information, the INP conducted 

an investigation that began by identifying a “SIM”5 card 

associated with one of the suspects’ phone numbers, 

and by interviewing employees at Tel Aviv restaurants 

called on the number (who directed the INP to the 

address of the Ha’Negev boiler room) and the 

superintendent of the building where the Ha’Negev 

room was located. The INP then sought, and received, 

Israeli court authorization to install a clandestine 

surveillance device in the Ha’Negev room and to search 

it. Based in part on the evidence gathered from the 

Ha’Negev room, Getto was arrested in the United States 

in July 2009.

 

4 The Treaty with Israel on Mutual Legal Assistance in Criminal 

Matters entered into force on May 25, 1999. See Treaty with Israel on 

Mutual Legal Assistance in Criminal Matters, U.S.-Isr., Jan. 26, 1998, S. 

Treaty Doc. No. 105-40, 1998 WL 1784226. The Treaty provides that the 

United States and Israel “shall provide mutual assistance . . . in 

connection with the investigation, prosecution, and prevention of 

offenses, and in proceedings related to criminal matters.” Id. at *8.

5 “A SIM, or ‘security identity module,’ card is the device within 

a phone that contains the unique information identifying a particular 

subscriber.” United States v. Moreno, 701 F.3d 64, 71 n.9 (2d Cir. 2012) 

(internal quotation marks omitted).
8 No. 11-1237-cr

Before the District Court, Getto moved to 

suppress the evidence gathered by the INP as 

inadmissible. He claimed that, although evidence 

obtained abroad by foreign law officials is not 

ordinarily subject to suppression, he was entitled to 

exclusion of the evidence because (1) the INP was 

working jointly with the FBI, and (2) “the actions of the 

INP in obtaining the evidence were sufficient[ly]

egregious to trigger application of the Fourth 

Amendment.” Appellant’s Br. 9. On August 25, 2010, 

the District Court denied the defendant’s motion to 

suppress without an evidentiary hearing. United States 

v. Getto, No. 09 CR 667(HB), 2010 WL 3467860 (S.D.N.Y. 

Aug. 25, 2010). Following a bench trial on stipulated 

facts, the District Court found Getto guilty on October 

28, 2010. United States v. Getto, No. 09 CR 667(HB), 2010 

WL 4449514 (S.D.N.Y. Oct. 28, 2010). On March 25, 2011, 

the District Court sentenced Getto to a term of 150 

months’ imprisonment, followed by three years’ 

supervised release, and restitution in the amount of 

$8,200,000, a sum based on the loss amount and the 

number of victims swindled by workers in all three 

boiler rooms.

This timely appeal followed.

II. DISCUSSION

Getto asserts two claims on appeal: (1) the District 

Court should have granted his motion to suppress the 
9 No. 11-1237-cr

foreign evidence6; and (2) the District Court committed 

procedural error by sentencing him, without sufficient 

explanation, based on the offense conduct of

conspirators in all three boiler rooms. We consider each 

claim in turn.

A. Suppression of Foreign Evidence

Our “standard of review for evaluating the 

district court’s ruling on a suppression motion is clear

error as to the district court’s factual findings, viewing 

the evidence in the light most favorable to the 

government, and de novo as to questions of law.” United 

States v. Voustianiouk, 685 F.3d 206, 210 (2d Cir. 2012).

We recently had occasion to review the scope of 

the Fourth Amendment’s exclusionary rule with respect 

to foreign police actions and held that “suppression is 

generally not required when the evidence at issue is 

obtained by foreign law enforcement officials.”

7 United 

 

6 Getto also argues that the District Court should at least have 

held an evidentiary hearing prior to ruling on his motion to suppress. 

We review a denial of an evidentiary hearing for an abuse of discretion, 

United States v. Bonventre, 720 F.3d 126, 128 (2d Cir. 2013), and “an 

evidentiary hearing on a motion to suppress ordinarily is required if the 

moving papers are sufficiently definite, specific, detailed, and 

nonconjectural to enable the court to conclude that contested issues of 

fact going to the validity of the search are in question,” In re Terrorist 

Bombings of U.S. Embassies in East Africa, 552 F.3d 157, 165 (2d Cir. 2008). 

Because we hold that Getto’s allegations, even if assumed to be true, 

would not require suppression, we also conclude that the District Court 

did not abuse its discretion in declining to hold an evidentiary hearing.

7 We also noted the longstanding history and purpose of the 

rule, observing that
10 No. 11-1237-cr

 

 

[m]ore than two decades ago, we held that “[w]hen 

conducted in this country, wiretaps by federal officials 

are largely governed by Title III of the Omnibus Crime 

Control and Safe Streets Act of 1968, see 18 U.S.C. §§ 

2510-2520,” but that this statute “does not apply outside 

the United States.” [United States v. ]Maturo, 982 F.2d

[57,] 60 [(2d Cir. 1992)]. It is also well-established that 

the Fourth Amendment’s exclusionary rule, which 

requires that evidence seized in violation of the Fourth 

Amendment must be suppressed, generally does not 

apply to evidence obtained by searches abroad 

conducted by foreign officials. See United States v. Janis, 

428 U.S. 433, 455 n.31 (1976) (“It is well established, of 

course, that the exclusionary rule, as a deterrent 

sanction, is not applicable where a private party or a 

foreign government commits the offending act.”). We 

held as long ago as 1975 that “information furnished [to] 

American officials by foreign police need not be 

excluded simply because the procedures followed in 

securing it did not fully comply with our nation’s 

constitutional requirements.” United States v. Cotroni, 527 

F.2d 708, 711 (2d Cir. 1975). This is so even when “the 

persons arrested and from whom the evidence is seized 

are American citizens.” Stowe v. Devoy, 588 F.2d 336, 341 

(2d Cir. 1978). Significantly, in this context, the Fourth 

Amendment’s exclusionary rule does not serve the 

deterrence purpose for which it was designed because 

“the actions of an American court are unlikely to 

influence the conduct of foreign police.” United States v. 

Valdivia, 680 F.3d 33, 51 (1st Cir. 2012) (quotation marks 

omitted); see also Cotroni, 527 F.2d at 712 (“The 

exclusionary rule is intended to inculcate a respect for 

the Constitution in the police of our own nation. Since it 

has little if any deterrent effect upon foreign police, it is 

seldom used to bar their work product.” (internal 

citations omitted)); United States v. Barona, 56 F.3d 1087, 

1091 (9th Cir. 1995) (“Neither our Fourth Amendment 

nor the judicially created exclusionary rule applies to 

acts of foreign officials.” (quotation marks and alteration 

omitted)); United States v. Mount, 757 F.2d 1315, 1317-18 
11 No. 11-1237-cr

States v. Lee, --- F.3d ----, 2013 WL 2450533, at *4 (2d Cir. 

June 7, 2013); see also United States v. Busic, 592 F.2d 13, 

23 (2d Cir. 1978) (“[T]he Fourth Amendment and its 

exclusionary rule do not apply to the law enforcement 

activities of foreign authorities acting in their own 

country.”). In reaffirming the general rule against 

suppressing evidence collected by foreign law

enforcement authorities abroad—a rule occasionally 

referred to as the “international silver platter doctrine,” 

see Lee, 2013 WL 2450533, at *3 n.3 (noting “the 

substantive viability of the international silver platter 

doctrine, if not the clarity of its moniker”)—we also 

noted our recognition of “two circumstances where 

evidence obtained in a foreign jurisdiction may be 

excluded[:] [f]irst, where the conduct of foreign officials 

in acquiring the evidence is so extreme that it shocks the 

judicial conscience and second, where cooperation with 

foreign law enforcement officials may implicate 

constitutional restrictions.” Id. at *4 (internal quotations 

marks and alterations omitted). On appeal, Getto 

concedes the continuing vitality of the general rule, but 

claims that the facts of the instant case require 

suppression of the fruits of the search on the basis of 

both exceptions set forth above. Appellant’s Br. 43. 

We first consider Getto’s claim that the INP’s 

conduct shocks the judicial conscience, and then turn to 

 

(D.C. Cir. 1985) (“[T]he exclusionary rule does not 

normally apply to foreign searches conducted by foreign 

officials.”).

United States v. Lee, --- F.3d ----, 2013 WL 2450533, at *3 (2d Cir. June 7, 

2013).
12 No. 11-1237-cr

the issue of whether the INP’s parallel investigation, 

conducted to assist in the American investigation,

demonstrates “cooperation” sufficient to trigger the 

Fourth Amendment’s exclusionary rule. Third, we also 

consider the applicability of the so-called “joint 

venture” doctrine to cases where a defendant seeks to 

suppress evidence on the basis of alleged Fourth 

Amendment violations abroad. We observe, by way of 

preface, that even if the Fourth Amendment’s 

exclusionary rule were to apply here, the evidence need 

not be suppressed unless the foreign search was

unreasonable. See In re Terrorist Bombings of U.S. 

Embassies in East Africa, 552 F.3d 157, 167 (2d Cir. 2008)

(“[T]he Fourth Amendment’s warrant requirement does 

not govern searches conducted abroad by U.S. agents; 

such searches of U.S. citizens need only satisfy the 

Fourth Amendment’s requirement of reasonableness.”).

i. “Shocks the Conscience”

Defendant argues that the INP’s conduct meets

the threshold for “shock[ing] the judicial conscience.” 

Lee, 2013 WL 2450533, at *4. Specifically, he claims that

the INP searched the Ha’Negev room before it had 

obtained a warrant and that the INP concealed this fact 

by later lying in its warrant application. Appellant’s Br. 

41. In support of this contention, defendant proffered 

before the District Court that he had noticed 

“suspicious activity consistent with a break in,” 

including that a security camera at the Ha’Negev boiler

room had been turned off, items in the room had been 

rearranged, and a door handle had been broken. Id. 
13 No. 11-1237-cr

Getto also disputes the INP’s account of its 

investigation, see Part I, ante, claiming that workers at 

the boiler room did not use telephones with “SIM” 

cards, see note 5 and accompanying text, ante, and, in 

any event, did not use their telephones for delivery 

service from Tel Aviv restaurants. Appellant’s Br. 50.

Even accepting, arguendo, the credibility of 

Getto’s contested allegations—which the District Court 

characterized as “speculative,” Getto, 2010 WL 3467860, 

at *3—we find them insufficient to meet the high 

standard necessary to “shock the judicial conscience” 

recognized by our court and by others in transnational 

law enforcement cases. In the due process context, we 

have explained that conduct does not shock the judicial 

conscience when it is “simply illegal”; rather, it must be 

“egregious.” United States ex rel. Lujan v. Gengler, 510 

F.2d 62, 66 (2d Cir. 1975); cf. United States v. AlvarezMachain, 504 U.S. 655, 661 (1992) (applying the “KerFrisbie” doctrine—“‘that the power of a court to try a 

person for crime is not impaired by the fact that he had 

been brought within the court’s jurisdiction by reason of 

a forcible abduction’”—to an abduction abroad of a 

foreign citizen that was authorized by U.S. officials

(quoting Frisbie v. Collins, 342 U.S. 519, 522 (1952))).

8 We 

 

8

Interpreting the decision in Ker v. People of State of Illinois, 119 

U.S. 436 (1886), and related authority, the first Justice John Marshall

Harlan long ago observed that, almost without exception, “there is 

nothing in the Constitution, treaties, or laws of the United States which 

exempts an offender, brought before the courts of a state for an offense 

against its laws, from trial and punishment, even though brought from 

another state by unlawful violence, or by abuse of legal process.” 

Pettibone v. Nichols, 203 U.S. 192, 213 (1906) (internal quotation marks 

omitted).
14 No. 11-1237-cr

have accordingly held that conduct did not shock the 

judicial conscience when, for example, there was no act 

“of torture, terror, or custodial interrogation of any 

kind,” Gengler, 510 F.2d at 66, or when there was “no 

claim of ‘rubbing pepper in the eyes,’ or other shocking 

conduct,” United States v. Nagelberg, 434 F.2d 585, 587 

n.1 (2d Cir. 1970). See also United States v. Emmanuel, 565 

F.3d 1324, 1331 (11th Cir. 2009) (“The shocks the judicial 

conscience standard is meant to protect against conduct 

that violates fundamental international norms of 

decency.” (internal quotation marks omitted)); United 

States v. Mitro, 880 F.2d 1480, 1483-84 (1st Cir. 1989) 

(same). 

The requirement of a showing that conduct 

“shocks the conscience” stems not from the Fourth 

Amendment, but instead from a federal court’s 

authority to exercise its supervisory powers over the 

administration of federal justice. See United States v. 

Maturo, 982 F.2d 57, 60-61 (2d Cir. 1992). Pursuant to 

this authority, “we may employ our supervisory 

powers when absolutely necessary to preserve the 

integrity of the criminal justice system.” United States v. 

Barona, 56 F.3d 1087, 1091 (9th Cir. 1995); cf. Emmanuel, 

565 F.3d at 1330.

Defendant’s allegations, at most, amount to a 

claim that Israeli law enforcement officials may not 

have obtained a warrant under Israeli law prior to 

conducting some searches or surveillance—a 

circumstance that would hardly “violate[ ] fundamental 

international norms of decency.” Mitro, 880 F.2d at 1484;
15 No. 11-1237-cr

see also id. at 1483 n.2 (rejecting argument that “evidence 

derived from a foreign search is not admissible in an 

American prosecution if the foreign search violated 

foreign law”); cf. In re Terrorist Bombings of U.S. 

Embassies in East Africa, 552 F.3d at 167 (holding that 

searches of U.S. citizens conducted abroad by U.S. 

agents are not governed by the Fourth Amendment’s 

warrant requirement and need only be reasonable). As 

one of our sister circuits has said, “the wiretaps at issue 

cannot be said to shock the conscience” even when 

“secured in violation of [a] foreign law.” Barona, 56 F.3d 

at 1091. 

Defendant’s argument on appeal that “[n]o case 

of this Court establishes that only physical abuse can 

constitute the kind of shocking conduct that could lead 

to suppression,” Appellant’s Br. 47-48, misses the basic 

nature of the standard. In the context of assessing 

abusive executive action, the concept of “shocking the 

conscience” derives from the Supreme Court’s decision 

in Rochin v. California, 342 U.S. 165 (1952). See County of 

Sacramento v. Lewis, 523 U.S. 833, 846 (1998). In Rochin, 

the Supreme Court held that

we are compelled to conclude that the 

proceedings by which this conviction was 

obtained do more than offend some 

fastidious squeamishness or private 

sentimentalism about combatting crime too 

energetically. This is conduct that shocks 

the conscience. Illegally breaking into the 

privacy of the petitioner, the struggle to 
16 No. 11-1237-cr

open his mouth and remove what was 

there, the forcible extraction of his 

stomach’s contents—this course of 

proceeding by agents of government to 

obtain evidence is bound to offend even 

hardened sensibilities. They are methods 

too close to the rack and the screw to 

permit of constitutional differentiation.

342 U.S. at 172. Indeed, the Supreme Court has 

explained that a “court’s inherent power to refuse to 

receive material evidence is a power that must be 

sparingly exercised [only in cases of] manifestly 

improper conduct by federal officials.” Lopez v. United 

States, 373 U.S. 427, 440 (1963). The alleged searches and 

surveillance in the instant case are different in kind.

Accordingly, we conclude that the District Court 

did not err in denying defendant’s motion to suppress 

on the basis that the search did not “shock the 

conscience.”

ii. “Implicates Constitutional Restrictions”

Defendant also argues that the instant case falls

within the second exception to the “international silver 

platter doctrine,” claiming that this case is one in which

“cooperation with foreign law enforcement officials 

may implicate constitutional restrictions.” Lee, 2013 WL 

2450533, at *4 (internal quotation marks omitted). 

Defendant asserts that a number of factors bring this 

case within the so-called “constitutional restrictions”
17 No. 11-1237-cr

exception, including: (1) the INP initiated its 

investigation based on the MLAT request from 

American law enforcement officials; (2) Israel never 

sought to prosecute Getto; (3) many other members of 

the conspiracy, or related conspiracies, were extradited 

to the United States; and (4) an article in an Israeli 

newspaper stated that American law enforcement 

agents watched live surveillance of the Ha’Negev boiler 

room. 

We have explained that, under the “constitutional 

restrictions” exception, “constitutional requirements 

may attach in two situations: (1) where the conduct of 

foreign law enforcement officials rendered them agents, 

or virtual agents, of United States law enforcement 

officials; or (2) where the cooperation between the 

United States and foreign law enforcement agencies is 

designed to evade constitutional requirements 

applicable to American officials.” Lee, 2013 WL 2450533, 

at *4 (internal quotation marks omitted). In examining 

defendant’s claims that both “virtual agency” and an 

intentional evasion of constitutional requirements 

occurred here, the District Court found that “[w]hile 

there was some cooperation in the case,” it was not 

enough to fall within the exception. Getto, 2010 WL 

3467860, at *3. We agree.

Addressing the two situations in turn, Getto first 

argues that the factors described above rendered the 

INP “virtual agents” of American law enforcement. In 

order to render foreign law enforcement officials virtual 

agents of the United States, American officials must 
18 No. 11-1237-cr

play some role in controlling or directing the conduct of 

the foreign parallel investigation. See Lee, 2013 WL 

2450533, at *4 (noting that a foreign law enforcement 

agency did not “solicit the views, much less approval, 

of [American] agents prior to conducting surveillance”); 

United States v. Cotroni, 527 F.2d 708, 712 (2d Cir. 1975) 

(declining to suppress the fruits of foreign wiretaps 

where the “United States government did not in any 

way initiate, supervise, control or direct the 

wiretapping” (internal quotation marks omitted)). It is 

not enough that the foreign government undertook its 

investigation pursuant to an American MLAT request. 

Courts have repeatedly observed that the purpose of 

the exclusionary rule for Fourth Amendment violations 

is “to inculcate a respect for the Constitution in the 

police of our own nation,” Lee, 2013 WL 2450533, at *3 

(internal quotation marks omitted) (emphasis supplied); 

see note 7, ante (collecting authorities), and have 

“seldom used [it] to bar [foreign police] work product” 

because it “has little if any deterrent effect upon foreign 

police.” Lee, 2013 WL 2450533, at *3 (internal quotation 

marks omitted). An inescapable corollary of this 

principle is that in instances where American law 

enforcement agents do not have authority to control or 

direct an investigation abroad, application of the 

exclusionary rule to the fruits of that investigation 

would serve no deterrence purpose. See United States v. 

Janis, 428 U.S. 433, 446 (1976) (“[T]he prime purpose of 

the rule, if not the sole one, is to deter future unlawful 

police conduct.” (internal quotation marks omitted)); see 

also Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363 

(1998) (“[B]ecause the rule is prudential rather than 
19 No. 11-1237-cr

constitutionally mandated, we have held it to be 

applicable only where its deterrence benefits outweigh 

its substantial social costs.” (internal quotation marks 

omitted)). As we explained in United States v. Lira, 515 

F.2d 68 (2d Cir. 1975), “where the United States 

Government plays no direct or substantial role in the 

misconduct and the foreign police have acted not as 

United States agents but merely on behalf of their own 

government, the imposition of a penalty would only 

deter United States representatives from making a 

lawful request for the defendant and would not deter 

any illegal conduct.” Id. at 71.

A review of the record here makes clear that U.S. 

officials neither controlled nor directed the foreign 

investigation. Although American law enforcement 

agents requested assistance with investigating Getto 

and shared the results of their preliminary investigation 

(e.g., telephone numbers and bank account information) 

with the INP, the foreign law enforcement agency 

conducted an independent, parallel investigation.

Indeed, the American government has proffered, and 

Getto has not rebutted, that, although American agents 

“were in contact frequently [with their Israeli 

counterparts] to share information,” they did not 

participate in any law enforcement actions by the INP in 

Israel.9Joint App’x 195-96.

 

9 For example, American agents were not involved in the 

preparation, submission, and execution of search warrants. Nor were 

they involved in the interviews of witnesses or defendants in Israel. 
20 No. 11-1237-cr

Defendant’s allegations, even if credited,

demonstrate only robust information-sharing and 

cooperation across parallel investigations and do not 

contradict the government’s claim that the Israeli 

investigation was not controlled or directed by 

American law enforcement. Cf. United States v. 

Paternina–Vergara, 749 F.2d 993, 998 (2d Cir. 1984) 

(noting, in the context of statutory analysis of the Jencks 

Act, that “[t]he investigation of crime increasingly 

requires the cooperation of foreign and United States 

law enforcement officials, but there is no reason to think 

that Congress expected that such cooperation would 

constitute the foreign officials as agents of the United 

States”). We do not find persuasive defendant’s 

argument that a “live feed” allowing American law 

enforcement agents to view surveillance footage in real 

time, supposedly referenced in an Israeli newspaper

article, demonstrates that the INP acted as virtual 

agents of the United States. We have long allowed

foreign authorities to share the fruits of an investigation 

with their American counterparts without suggesting or 

assuming that the latter controlled the investigation.

See, e.g., Maturo, 982 F.2d at 61. The ability of modern 

law enforcement agencies, aided by global 

telecommunications, to share information across 

borders without delay is not a significant departure 

from the traditional method of sharing surveillance 

after-the-fact and does not, in and of itself, give rise to 

an inference of agency. See United States v. Morrow, 537 

F.2d 120, 140 (5th Cir. 1976) (“Normal lines of 

communication between the law enforcement agencies 
21 No. 11-1237-cr

of different countries are beneficial without question 

and are to be encouraged.”).

Likewise, defendant’s argument that the INP 

would not have investigated defendant but for the 

MLAT request, even if true, does not bear upon 

whether American law enforcement directed the 

subsequent investigation in Israel. Rather, this fact only 

shows that the INP was unaware of a criminal 

conspiracy within its jurisdiction whose victims were 

almost exclusively residing in the United States. See 

Maturo, 982 F.2d at 61 (“[T]he fact that the [Turkish 

National Police] did not initiate the wiretap until 

[American agents] gave them the numbers 

demonstrates only that the [Turkish National Police] 

was unaware that these individuals were using their 

phones to traffick [sic] narcotics.”); Morrow, 537 F.2d at 

140 (“Criminal conspiracies . . . are sometimes 

international in scope, and the routine transmittal of the 

name and telephone number of a possibly valuable 

informant [or suspect] across national borders clearly is 

permissible under the [F]ourth [A]mendment.”).

Finally, we do not find particularly significant the 

fact that the defendant—an American citizen, whose 

victims were primarily American citizens—was arrested 

and charged in the United States, rather than charged in 

Israel. A number of factors may properly inform the 

decision of prosecutorial venue among different

sovereign states, including: (1) the location of the 

relevant witnesses, victims, and evidence; (2) the nature 

of different legal systems; (3) the relative priority of a 
22 No. 11-1237-cr

case to different nations; and (4) the resources available 

to undertake the prosecution in different jurisdictions. 

Cf. Linde v. Arab Bank, PLC, 706 F.3d 92, 114 (2d Cir. 

2013) (noting that different interests and legal codes 

might inform the decisions of foreign states in deciding 

whether to prosecute for similar offense conduct); Slater 

v. Clarke, 700 F.3d 1200, 1203 (9th Cir. 2012) (noting that 

“the decision whether to prosecute[ ] involves a 

balancing of myriad factors, including culpability, 

prosecutorial resources and public interests” (internal 

quotation marks and brackets omitted)). We decline to 

infer that the decision to prosecute defendant in the 

United States, without more, indicates that American 

law enforcement directed the preceding investigation 

abroad.

Second, Getto argues, see Appellant’s Br. 43-47,

that “the cooperation between the United States and 

foreign law enforcement agencies [was] designed to 

evade constitutional requirements applicable to 

American officials,” Lee, 2013 WL 2450533, at *4. By its 

terms, however, this method of fulfilling the 

“constitutional restrictions” exception requires some 

intent to evade American constitutional requirements.

See id.; cf. United States v. Yousef, 327 F.3d 56, 146 (2d Cir. 

2003) (noting, in the context of overseas interrogations,

that statements may be suppressed under the Fifth 

Amendment “where United States officials, although 

asking no questions directly, use foreign officials as 

their interrogation agents in order to circumvent the 

requirements of Miranda” (emphasis supplied)).
23 No. 11-1237-cr

Getto points to nothing in the record suggesting 

an intent to evade the Fourth Amendment’s 

requirements. Instead, the record demonstrates that the 

decision to request INP assistance was motivated by the

inability of American law enforcement agents to further

investigate criminal activity occurring substantially 

within the territory of a foreign sovereign. See Maturo, 

982 F.2d at 62 (“[T]he [Turkish National Police’s]

wiretapping of phones in Turkey was prompted not by 

a desire to circumvent [American] constitutional 

constraints, but by [a] logistical problem.”).

Accordingly, we hold that the information in the 

record—the MLAT request, the information-sharing 

between American law enforcement and the INP, and

American receipt of the fruits of the INP’s investigation 

in Israel—reveals no cooperation “designed to evade 

constitutional requirements,” Maturo, 982 F.2d at 61, but 

only successful coordinated law enforcement activity.

iii. “Joint Venture” Doctrine

In analyzing Getto’s claims within the 

constitutional restrictions exception, the District Court 

applied the “joint venture” doctrine adopted by some of 

our sister circuits. Getto, 2010 WL 3467860, at *3; see 

generally United States v. Valdivia, 680 F.3d 33, 52 (1st Cir. 

2012); United States v. Peterson, 812 F.2d 486, 490 (9th Cir. 

1987) (holding that the exclusionary rule analysis 

applies if “United States agents’ participation in the 

investigation is so substantial that the action is a joint 

venture between United States and foreign officials”). 

We note that in the context of the Fourth Amendment, 
24 No. 11-1237-cr

the joint venture doctrine has been applied by other 

courts with inconsistent, even confusing, results. 

Compare United States v. Behety, 32 F.3d 503, 511 (11th 

Cir. 1994) (finding no joint venture where American 

agents provided information for a search, were present 

at the search, and videotaped part of it), with Peterson, 

812 F.2d at 490 (finding joint venture where American 

officials described their actions as a “joint investigation” 

and were “involved daily in translating and decoding 

intercepted transmissions, as well as advising [foreign] 

authorities of their relevance”).

We have repeatedly declined to adopt the joint 

venture doctrine in the context of the Fourth 

Amendment. See Lee, 2013 WL 2450533, at *4 n.4; 

Maturo, 982 F.2d at 61-62. As we have explained above, 

the purpose of the Fourth Amendment’s exclusionary 

rule is “to inculcate a respect for the Constitution in the 

police of our own nation.” Lee, 2013 WL 2450533, at *3 

(internal quotation marks omitted); see also note 7, ante. 

This purpose of deterrence is not served in instances 

where American law enforcement officers, not 

intentionally seeking to evade our Constitution, 

participate in a so-called “joint venture” but do not 

direct or otherwise control the investigation. See Part

II.A.ii, ante. We, therefore, decide again not to adopt the 

joint venture doctrine and, instead, reaffirm the 

longstanding principles of “virtual agency” and 

intentional constitutional evasion described in this 

opinion as the applicable analytic rubric to determine 

whether “cooperation with foreign law enforcement 
25 No. 11-1237-cr

officials may implicate constitutional restrictions.”10 See 

Lee, 2013 WL 2450533, at *4; Maturo, 982 F.2d at 60-61.

For the reasons stated above, we conclude that 

the District Court did not err in denying defendant’s 

motion to suppress the evidence gathered abroad by 

foreign law enforcement officials.

B. Procedural Error in Sentencing

Getto also challenges the procedural 

reasonableness of his sentence. “Criminal sentences are 

generally reviewed for reasonableness, which requires 

an examination of the length of the sentence 

(substantive reasonableness) as well as the procedure 

employed in arriving at the sentence (procedural 

reasonableness).” United States v. Chu, 714 F.3d 742, 746 

(2d Cir. 2013) (internal quotation marks omitted). As we 

have explained, “[a] district court commits procedural 

error where it fails to calculate (or improperly 

calculates) the Sentencing Guidelines range, treats the 

Sentencing Guidelines as mandatory, fails to consider 

 

10 We note that our holding declining to adopt the joint venture 

doctrine in the context of the Fourth Amendment does not bear upon our 

earlier jurisprudence adopting the doctrine in the context of Fifth

Amendment. See Lee, 2013 WL 2450533, at *4 n.4 (“Although our case law 

. . . implicitly adopted the joint venture theory in the context of 

suppressing overseas interrogations under the Fifth Amendment’s Due 

Process Clause, we have not done so in the context of the Fourth 

Amendment.” (citations and internal quotation marks omitted)); see 

generally United States v. Verdugo–Urquidez, 494 U.S. 259, 264 (1990)

(noting that the Fourth Amendment “operates in a different manner than 

the Fifth Amendment”); United States v. Yousef, 327 F.3d 56, 145–46 (2d 

Cir. 2003) (adopting the joint venture doctrine in the Fifth Amendment 

context of suppressing statements elicited during overseas 

interrogations).
26 No. 11-1237-cr

the § 3553(a) factors, selects a sentence based on clearly 

erroneous facts, or fails adequately to explain the 

chosen sentence.” United States v. Robinson, 702 F.3d 22, 

38 (2d Cir. 2012) (relying on Gall v. United States, 552 

U.S. 38, 51 (2007)). Getto argues that he was improperly

sentenced based on the total number of victims and the 

collective loss amount attributable to the conspirators at 

all three boiler rooms, and that the District Court did 

not make the required particularized findings before 

attributing the activities at all three rooms to him. 

A district court may sentence a defendant based 

on the reasonably foreseeable acts and omissions of his 

co-conspirators that were taken in relation to a 

conspiracy. See U.S.S.G. § 1B1.3(a)(1)(B). Before 

sentencing a defendant based on the conduct of coconspirators, however, a district court is “required to 

make two particularized findings . . . : (1) that the scope 

of the activity to which the defendant agreed was 

sufficiently broad to include the relevant, co-conspirator 

conduct in question . . . ; and (2) that the relevant 

conduct on the part of the co-conspirator was 

foreseeable to the defendant.” United States v. Johnson, 

378 F.3d 230, 236 (2d Cir. 2004) (internal quotation 

marks, citations, and alterations omitted); see also United 

States v. Studley, 47 F.3d 569, 574-75 (2d Cir. 1995).

It is clear from a review of the transcript of the 

sentencing proceeding that the District Court did not 

make particularized findings relating to the scope of the 

activity or the foreseeability of the conduct of Getto, 

stating only that it had “no quarrel with the 
27 No. 11-1237-cr

[government’s] conspiracy theory here from what I 

have read.” Special App’x 33. This terse statement does 

not constitute particularized findings,11 see Johnson, 378 

F.3d at 236, and compels the conclusion that the District 

Court committed procedural error. Accordingly, we 

remand the cause with instructions to vacate 

defendant’s sentence and proceed promptly to

resentencing. 

CONCLUSION

To summarize, we hold that:

(1) Defendant’s allegations that a foreign law 

enforcement agency conducted warrantless 

searches and surveillance abroad, even if 

credited, would not “shock the conscience” so 

as to require exclusion of the fruits of those 

activities under the Fourth Amendment.

(2) Ongoing collaboration between an American 

law enforcement agency and its foreign 

counterpart in the course of parallel 

investigations does not, without more, give 

rise to a relationship between the two entities 

sufficient to implicate the Fourth Amendment 

abroad because (a) a foreign law enforcement 

agency does not act as a “virtual agent” of 

American law enforcement where American 

 

11 We “note that the scope of conduct for which a defendant can 

be held accountable under the sentencing guidelines is significantly 

narrower than the conduct embraced by the law of conspiracy.” United 

States v. Perrone, 936 F.2d 1403, 1416 (2d Cir. 1991).
28 No. 11-1237-cr

law enforcement officials do not control or 

direct the foreign law enforcement agency’s 

investigation abroad; and (b) cooperation 

between the United States and foreign law 

enforcement agencies does not otherwise 

implicate the Fourth Amendment where the 

American officials do not intend to evade 

constitutional requirements. 

(3) We do not adopt the “joint venture” doctrine 

in the context of the Fourth Amendment. 

(4) The District Court erred by sentencing 

defendant based on the conduct of coconspirators without making the requisite 

particularized findings, see United States v. 

Johnson, 378 F.3d 230, 236 (2d Cir. 2004),

regarding the scope of the defendant’s 

agreement in the conspiracy and the 

foreseeability to the defendant of the coconspirators’ conduct. 

For the reasons stated above, we AFFIRM the 

District Court’s March 29, 2011 judgment of conviction, 

and REMAND the cause with instructions to vacate the 

sentence and proceed promptly to resentence the 

defendant in a manner consistent with this opinion.