U.S. v. Abascal

• Citation: 564 F.2d 821
• Decision Date: 18 March 1977
• Docket Number: Nos. 75-1093 and 75-2052,s. 75-1093 and 75-2052
• Parties: 1 Fed. R. Evid. Serv. 694 UNITED STATES of America, Appellee, v. Manuel Glenn ABASCAL, Appellant. UNITED STATES of America, Appellee, v. Paul Gordon FRAKES, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 821

564 F.2d 821

1 Fed. R. Evid. Serv. 694

UNITED STATES of America, Appellee, v. Manuel Glenn ABASCAL, Appellant.

UNITED STATES of America, Appellee, v. Paul Gordon FRAKES, Appellant.

Nos. 75-1093 and 75-2052.

United States Court of Appeals, Ninth Circuit.

March 18, 1977.

Rehearing and Rehearing En Banc Denied Dec. 2, 1977.

Michael S. Hegner, El Cajon, Cal., argued for Abascal.

Terry J. Knoepp, U. S. Atty., James W. Brannigan, Robert D. Krause, Asst. U. S. Attys., San Diego, Cal., argued for the United States.

Gilbert Eisenberg, Ann Cummings, Atty., San Francisco, Cal., argued for Frakes.

William J. Corcoran, argued, Washington, D. C., for appellee in 75-1093.

Appeal from the United States District Court for the Southern District of California.

Before TRASK, GOODWIN and WALLACE, Circuit Judges.

GOODWIN, Circuit Judge:

Paul Gordon Frakes and Manuel Glenn Abascal were convicted of multiple counts of violating 21 U.S.C. § 841 and related statutes which denounce possession and distribution of certain drugs, as well as conspiracy to engage in illegal drug transactions. Their combined appeals present a number of issues common to both appellants, and others that relate to each one individually.

An enterprise distributing large quantities of LSD, involving as many as fifteen suspects, was discovered when an undercover agent of the San Diego County district attorney's office, posing as a purchaser, developed a contact with Clarence "Pee Wee" Batchelder, a suspected dealer in various illicit drugs. Batchelder's activities indicated that his supplier was Vladimir Petroff. The agents obtained wiretap orders and monitored the telephones of both Batchelder and Petroff. The monitored conversations led the agents to believe that Frakes was a partner of Petroff, and that Abascal was active in the distribution network in Northern California.

In due course, Batchelder was arrested in the act of selling LSD, and Petroff was arrested at his house in San Diego. Frakes was arrested a short time after the arrest of Batchelder and Petroff. A quantity of evidence which is material in this appeal was seized in connection with Petroff's arrest.

Meanwhile, another team of agents in the Berkeley-East-Bay area staked out Abascal's house. A few days after Petroff and Batchelder were arrested, agents in Lafayette arrested Kathy Shull as she drove away from Abascal's house in his black Cadillac. In the Abascal Cadillac the agents found a substantial quantity of LSD marked and packaged in the same manner as that found in San Diego in the possession of Batchelder and Petroff.

I. THE WIRETAPS

(a) Standing

The trial, which followed lengthy pretrial proceedings, took eight weeks. Much of the government's evidence was derived from the tap on the Petroff telephone. Abascal had participated in seven of the monitored calls, and Frakes in three. All but one of these calls were referred to in the evidence. Accordingly, the appellants have standing to challenge the legality of this wiretap. United States v. King, 478 F.2d 494, 506 (9th Cir.), cert. denied, 414 U.S. 846, 94 S.Ct. 111, 38 L.Ed.2d 94 (1973), and 417 U.S. 920, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974).

(b) Necessity

Abascal and Frakes assert that the government's applications for the wiretap did not satisfy 18 U.S.C. § 2518(1)(c). ¹ The cited section emphasizes the objective of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq., that wiretaps are "not to be routinely employed as the initial step in criminal investigation." United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1827, 40 L.Ed.2d 341 (1974); United States v. Kahn, 415 U.S. 143, 153 n.12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Nevertheless, the statute is to be interpreted "in a practical and commonsense fashion." S.Rep.No.1097, 90th Cong. 2d Sess. 1968, U.S.Code Cong. & Adm.News, pp. 2112, 2190. Consequently, the government must show only that alternative means are likely, not certain, to fail; i. e., a wiretap need not be resorted to only as a last resort. United States v. Smith,519 F.2d 516 (9th Cir. 1975); United States v. Kerrigan, 514 F.2d 35, 38 (9th Cir.), cert. denied, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249 (1975). See also United States v. Vento, 533 F.2d 838, 850 (3d Cir. 1976).

Section 2518(1)(c) requires the government to make a particularized showing in each case of the improbability of success or high degree of danger from the use of alternative investigative techniques. The government must do more than merely characterize a case as a "gambling conspiracy" or a "drug conspiracy" or any other kind of case that is in general "tough to crack". United States v. Kalustian, 529 F.2d 585, 589 (9th Cir. 1975); United States v. Kerrigan, 514 F.2d at 38. But see United States v. McCoy, 539 F.2d 1050, 1056 (5th Cir. 1976). Cf. United States v. Scully, 546 F.2d 255, 260-261 (9th Cir. 1976).

There is, of course, little doubt of the sufficiency of the affidavits supporting the Batchelder tap. Batchelder had discovered that he was under surveillance and had turned "wary". (Batchelder was involved in a complex network of marijuana smuggling and distribution in addition to the LSD conspiracy.) Batchelder had refused to allow the undercover agent to deal directly with any of his drug sources. The agents knew from their nonelectronic investigation that wiretaps would generate significant new evidence from Batchelder, but that nothing else would be productive. On Petroff, the record was similar, but nonelectronic techniques had produced little.

The wiretap statute requires that § 2518(1)(c) be satisfied with regard to each separate wiretap. Thus a showing of need for the Batchelder wiretap would not necessarily justify the need for the Petroff wiretap. It is not enough that the agents believe the telephone subscribers they wish to tap are all part of one conspiracy. Less intrusive investigative procedures may succeed with one putative participant while they may not succeed with another. Here, however, we are satisfied that the supporting affidavits were sufficient to justify the Petroff tap. The government, upon discovering that Petroff was probably Batchelder's source, had undertaken an extensive "paper" investigation of Petroff. His lengthy criminal record was soon supplemented by a mass of false personal data Petroff had given to various agencies in an apparent effort to avoid being traced. Also found were telegrams to Europe and telephone toll records indicating a call to a woman in New Orleans who had a California LSD arrest record. During the investigation Batchelder had indicated both that he thought Petroff was manufacturing the drug and that it was being imported from Europe and smuggled through a bribed Customs agent. Agents were entitled to check both theories.

Professionally packaged drug containers obtained from Batchelder were circulated to a variety of law enforcement agencies, but these samples produced no new leads. Batchelder's refusal to allow the undercover agent to deal directly with Petroff made it impossible for agents to move upward from within the conspiracy. No other informants that could have been of any assistance were known. Even if Batchelder had known something about the operations beyond Petroff, the government would have jeopardized its entire investigation by pressing Batchelder for more information.

The agents had, therefore, substantial reason to believe, at the time they requested the wiretap, that Petroff was in the middle of an extensive drug conspiracy with international dimensions. It was also clear that the telephone was the principal means of communication of the conspirators. Petroff's known record and activities had shown him to be wary of surveillance and adept at avoiding it.

This is not a case of "boilerplate" allegations true of drug conspiracies in general and held not to be sufficient in Kalustian. Here, the affidavit etched the nature and contours of this conspiracy and the nature and extent of this investigation up to the requesting point with enough particularity to allow a judge reasonably to ascertain that continued use of ordinary surveillance probably would be fruitless. The wiretap orders were valid. United States v. Spagnuolo, 549 F.2d 705 (9th Cir., 1977).

(c) Minimization

Claiming a systematic failure by the agents monitoring the Petroff and Batchelder wiretaps to comply with the minimization requirements of 18 U.S.C. § 2518(5), Frakes and Abascal also sought total suppression of the wiretap evidence on this ground.

The government argued that these defendants had standing to challenge minimization only as to their own calls; that the monitoring agents had made a good-faith, if not completely successful, effort to limit interception; and that, assuming a failure to minimize, total suppression was not an appropriate remedy. Following a fourteen-day evidentiary hearing and the submission of briefs, the district court denied the motion to suppress. This ruling was correct.

On the facts of this case the agents reasonably could have recorded all the monitored calls during the twelve-day life of the wiretaps. ² We need not, therefore, fix abstract limits of standing to complain about minimization or discuss what might be appropriate relief under 18 U.S.C. § 2518(5) if minimization were not properly carried out.

The standard of minimization is reasonableness. Reasonableness must be determined from the facts of each case. United States v. Chavez, 533 F.2d 491 (9th Cir.), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976); United States v. Scott, 170 U.S.App.D.C. 158, 516 F.2d 751, 755, cert. denied, 425 U.S. 917, 96 S.Ct. 1519, 47 L.Ed.2d 768 (1976).

In assessing reasonableness in this case, it is significant that the life of the wiretaps was very brief. The officers were investigating a large-scale drug ring in which the existence but not the identity of coconspirators was known. Se...