U.S. v. Torres
| Citation | 908 F.2d 1417 |
| Decision Date | 02 August 1990 |
| Docket Number | 89-30019 and 89-30020,Nos. 89-30006,89-30016,89-30013,s. 89-30006 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rudy TORRES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Theodore VICKERS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mary TORRES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ralph Richard VICKERS, Defendant-Appellant (Two Cases). |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Hugh M. Spall, Ellensburg, Wash., for defendant-appellant Theodore Vickers.
Richard B. Kayne, Kayne & Kitching, Spokane, Wash., for defendant-appellant Ralph Richard Vickers.
Mark D. Watson, Meyer & Fleugge, Yakima, Wash., for defendant-appellant Rudy Torres.
Scott A. Bruns, Dohn, Talbott, Simpson, Gibson & Davis, Yakima, Wash., for defendant-appellant Mary Torres.
Donald E. Kresse, Jr., Asst. U.S. Atty., Yakima, Wash., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Washington.
Before WALLACE, HALL and WIGGINS, Circuit Judges.
This opinion consolidates the appeals brought by Rudy Torres, Mary Torres, Ralph Vickers and Theodore Vickers to their convictions in, respectively, United States v. Torres, No. 89-30006, (Torres I ), United States v. Torres, No. 89-30016 (Torres II ); United States v. Vickers, No. 89-30019 (Vickers I ); and United States v. Vickers, No. 89-30013 (Vickers II ). All the appellants contend that the district court should have suppressed the evidence obtained through a wire intercept because the application and affidavit submitted to obtain the wire intercept order, and the procedures used during wire interception, failed to meet statutory and constitutional requirements. In addition, Rudy and Mary Torres argue that the district court erred in finding untimely their motion to dismiss. Rudy Torres separately contends that the district court wrongfully admitted hearsay testimony against him. Mary Torres contends that the district court erred in denying her motion for acquittal based on a failure of the government to authenticate evidence used against her. Theodore Vickers and Rudy and Mary Torres contend that the district court improperly sentenced them. We have jurisdiction over these timely appeals pursuant to 28 U.S.C. Sec. 1291 (1982). We affirm in part and vacate and remand in part.
The Drug Enforcement Agency (DEA) began an investigation of Ralph Richard Vickers and Richard Allison on March 10, 1987 after suspecting that Vickers and Allison operated a drug distribution ring. Allison lived in a house located on property owned by Vickers. On June 4, 1987, the DEA installed a pen register 1 pursuant to court order on Allison's telephone. That pen register revealed that 28 calls were made from Allison's phone to Ralph Vickers' phone during a twenty-five day period. On June 29, 1987, the DEA installed a pen register on Ralph Vickers' telephone. In the next twenty-five day period that pen register revealed that: 1) 42 calls were made from Ralph Vickers' phone to Allison's pager; 2) 70 calls were made from Ralph Vickers' phone to a New York hotel; and 3) 94 calls were made from Ralph Vickers' phone to suspected coconspirators.
The DEA also introduced undercover agents to Ralph Vickers' drug distribution ring. On September 23, 1987, Ralph Vickers sold cocaine to a DEA undercover agent, Greg Phillips. Ralph Vickers again sold cocaine to Agent Phillips on October 29, 1987.
The DEA, despite information gained from surveillance of the Allison residence, Agent Phillips, and three confidential informants, could not identify all the sources of Ralph Vickers' cocaine supply, all of Ralph Vickers' major customers, all his coconspirators, and the location of his assets.
On September 24, 1987, the DEA sought an order from the Attorney General approving an application to the district court to intercept telephone communications to and from Ralph Vickers' residence. After receiving such approval from a Deputy Assistant Attorney General, the DEA applied to the district court for an order to intercept such wire communications on Ralph Vickers' telephone line. The DEA's affidavit in support of this application stated that other methods of investigating the drug ring would not be as effective because continuous physical surveillance and searches or grand jury investigations would alert the coconspirators to the DEA's investigation, while undercover agents would not be able to contact sources of supply. The district court issued the wire intercept order on November 18, 1987. Interception of wire communications began soon thereafter and continued until December 2, 1987. The DEA intercepted 1,693 calls.
During a call monitored on November 27, 1987, Theodore Vickers, Ralph Vickers' brother, ordered an ounce of marijuana from Ralph Vickers. During a call monitored on November 29, 1987, Mary Torres described to Ralph Vickers the details of the importation of drugs by her husband, Rudy Torres, from Mexico.
On February 11, 1988, the government obtained indictments against Ralph Vickers, Theodore Vickers, Mary Torres, and Rudy Torres. Appellants moved to suppress those conversations on the ground that the application had not been properly authorized by the Attorney General. The district court denied their motions on July 13, 1988. Appellants then moved to suppress the conversations on the grounds that the affidavit failed to show sufficient necessity and that the DEA failed to minimize the interception of telephone conversations not related to its investigation. The district court denied their motions on August 8, 1988.
On October 18, 1988, Rudy and Mary Torres moved to dismiss their indictments on the ground that the intercepted conversations implicating them were outside the scope of the wire intercept order and were not subsequently authorized as required by 18 U.S.C. Sec. 2517(5) (1988). The district court denied this motion on the grounds that the conversations were not outside the scope of the order, the government had proceeded in good faith, and that the Torreses' motion was untimely. At trial, the Torreses unsuccessfully renewed their challenge to the use of conversations obtained by the wire intercept.
During trial, the district court admitted testimony, over objection, of Allison and Mark Horton regarding statements made by Ralph Vickers implicating Rudy Torres in the distribution of drugs. On November 15, 1989, Mary Torres moved for acquittal on the grounds that the government failed to authenticate properly evidence admitted against her. The district court denied that motion.
Rudy Torres was convicted of one count of conspiracy to import a controlled substance and nine counts of use of a communication facility in furtherance of a narcotics felony. The district court sentenced Rudy Torres to five years for the conspiracy charge and four years for each of the communications charges, sentences to run concurrently. Mary Torres was convicted of one count of conspiracy to import a controlled substance and five counts of use of a communication facility in furtherance of a narcotics felony. The district court sentenced her to three years for the conspiracy charge and three years for each of the communications charges, sentences to run concurrently.
Ralph Vickers pleaded guilty to one count of conspiracy to manufacture a controlled substance. The district court sentenced him to twelve years and fined him $50,050. On November 18, Theodore Vickers pleaded guilty to one count of possession of marijuana. The district court sentenced him to two years and fined him $5,050.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2511-2521 (1988), prohibits willful interception or disclosure of telephone conversations except as provided under 18 U.S.C. Secs. 2516-2519. Appellants argue that the DEA's alleged failure to: 1) seek proper authorization for its wire intercept application; 2) prove necessity for the wire intercept; and 3) minimize the wire interception requires suppression of the intercepted conversations, see 18 U.S.C. Sec. 2518(10)(a), or dismissal of their indictments.
We review de novo whether the DEA obtained proper authorization to apply for an intercept order. See United States v. Camp, 723 F.2d 741 (9th Cir.1984) ().
Section 2516(1) of Title III provides that: "any Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General, may authorize an application to a Federal judge [for a wire intercept order]...." 18 U.S.C. Sec. 2516(1) (emphasis added). In the instant case, Joe D. Whitley, a Deputy Assistant Attorney General for the Criminal Division of the Department of Justice, authorized the application for the order. Prior to Whitley's authorization, then Attorney General Edwin Meese issued an order which stated that "any Deputy Assistant Attorney General of the Criminal Division" may authorize applications for wire intercept orders. Whitley was one of four Deputy Assistant Attorneys General. Appellants contend that the Attorney General's order did not "specially designate" Whitley because that order did not specifically mention Whitley by name.
Whitley was specially designated within the meaning of section 2516(1). An Attorney General may "specially designate" an officer pursuant to section 2516(1) by job title rather than name. Camp, 723 F.2d at 744. Although Camp decided only whether a special designation order may refer by job title to one person, not a group of persons, nothing in Camp suggests that a special designation by job title is invalid if more than one person has that job. Because Title III's policy...
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