U.S. v. Brown

• Decision Date: 29 January 1985
• Docket Number: No. 83-5330,83-5330
• Citation: 761 F.2d 1272
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Douglas William BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1272

761 F.2d 1272

UNITED STATES of America, Plaintiff-Appellee, v. Douglas William BROWN, Defendant-Appellant.

No. 83-5330.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 7, 1984.

Decided Jan. 29, 1985.

Charles F. Gorder, Jr., Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Michael Pancer, Pancer & Sherman, San Diego, Cal., for defendant-appellant.

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

Before WALLACE and NORRIS, Circuit Judges, and WILLIAMS, ^* District Judge.

WALLACE, Circuit Judge:

Brown appeals his conviction on two counts of unlawful use of a telephone facility in violation of 21 U.S.C. Sec. 843(b). The district court had jurisdiction under 18 U.S.C. Sec. 3231. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm.

I

Brown, an attorney, began purchasing cocaine for personal use from his neighbor, Valletta, early in 1982. Later, Brown agreed to allow Valletta to store cocaine at his residence and gave Valletta a key to permit entry when he was not at home. In return, Valletta began giving Brown free cocaine. Brown testified that his purpose in permitting the storage at his residence was not to conspire with Valletta to distribute cocaine, but only to assist his friends in obtaining it.

In May 1982, the Federal Bureau of Investigation (FBI) began investigating a group allegedly involved in distributing cocaine in the San Diego area. Although an FBI agent infiltrated the organization and obtained incriminating information from Bishop, a suspected participant, and from several confidential informants, the investigation reached an impasse when the FBI's confidential sources refused to testify or cooperate further and when the evidence obtained through its conventional methods appeared insufficient to result in any convictions.

The FBI therefore obtained an order from the district court in August 1982, authorizing installation of wiretaps on the telephones of Valletta, Bishop, and another suspect in the operation, DeVito. The wiretaps revealed, among other things, that Valletta occasionally met customers at Brown's residence and sold them cocaine. In October 1982, the FBI obtained an order from the district court permitting a tap on Brown's telephone. This wiretap revealed that Brown also conducted transactions with his friends at his residence, and passed their money on to Valletta.

The investigation resulted in Brown's indictment on one count of conspiracy to distribute and possess with intent to distribute cocaine and on fourteen counts of using a telephone to facilitate the distribution of and the possession with intent to distribute cocaine. After his indictment, Brown moved to suppress the evidence obtained from the wiretaps and to dismiss the indictment for violating his sixth amendment right to a speedy trial. The district judge denied Brown's motions, and his case went to trial. The jury found him guilty on two of the telephone counts, not guilty on twelve of them, and it was unable to reach a decision on the separate conspiracy charge. The district judge sentenced Brown to a year and one day on each of the two telephone counts, to run concurrently.

II

Brown first argues that the district court should have suppressed the evidence obtained from the wiretaps. He asserts that the affidavit offered in support of the August wiretap order did not properly allege the necessity for the wiretaps as required by 18 U.S.C. Sec. 2518(1)(c) and that there was in fact neither probable cause nor sufficient need for the order as required by 18 U.S.C. Sec. 2518(3). Thus, he concludes that the evidence from the August wiretaps was illegally seized and the evidence from the October wiretap was tainted fruit. Alternatively, he argues that the district court should have suppressed the evidence obtained from the October wiretap because the October order did not satisfy section 2518(3)'s necessity requirement.

To authorize a wiretap, section 2518(3) requires a judge to make two types of findings. First, he must find there is "probable cause for belief that an individual is committing, has committed, or is about to commit" certain offenses including narcotics violations, id. Sec. 2518(3)(a), that relevant communications will be intercepted by the wiretap, id. Sec. 2518(3)(b), and that the targeted persons will use the targeted facility. Id. Sec. 2518(3)(d). Second, he must find that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." Id. Sec. 2518(3)(c). These two requirements are usually referred to as the probable cause and necessity requirements. Section 2518(1)(c) requires an investigative agency seeking a wiretap order to provide the judge with "a full and complete statement" demonstrating the necessity requirement.

The necessity requirement exists "to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 983 n. 12, 39 L.Ed.2d 225 (1974). Although wiretaps are not to be used routinely "as the initial step in criminal investigation[s]," United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974), the necessity requirement is not intended to relegate the use of wiretaps to that of last resort; the restriction must be interpreted "in a practical and commonsense fashion." United States v. Bailey, 607 F.2d 237, 241 (9th Cir.1979), cert. denied, 445 U.S. 934, 100 S.Ct. 1327, 63 L.Ed.2d 769 (1980).

Our review of the district court's determination under this statute is deferential. We review the findings of probable cause under the same standard as for a search warrant, United States v. Fury, 554 F.2d 522, 530 (2d Cir.), cert. denied, 436 U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776 (1978), and 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977), to be sure it had a substantial basis. United States v. Seybold, 726 F.2d 502, 503 (9th Cir.1984); see also Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Although we examine de novo whether "a full and complete statement" was submitted meeting section 2518(1)(c)'s requirements, United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984), we review conclusions that the wiretaps were necessary in each situation only for an abuse of discretion. See United States v. Martin, 599 F.2d 880, 886-87 (9th Cir.), cert. denied, 441 U.S. 962, 99 S.Ct. 2408, 60 L.Ed.2d 1067 (1979).

The government argues that we need not review the August order at all because we have already held, in another case involving the same investigation, that the affidavit underlying the August order satisfied the probable cause and necessity requirements. See United States v. Goetz, 730 F.2d 771 (9th Cir.1984) (mem.). We cannot accept the government's argument. Brown was not a party in Goetz, and thus Goetz is not binding as law of the case, as res judicata, or as a matter of collateral estoppel. Although in some instances courts have permitted nonparties to use collateral estoppel offensively, see, e.g., Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 651, 58 L.Ed.2d 552 (1979), we know of no case permitting a party to use it offensively against nonparties to the original decision. This is consistent with the principle that each party is accorded a full and fair opportunity to litigate a particular issue. See id. at 327, 99 S.Ct. at 649. Because Brown has not yet had his full opportunity on this issue, he is not precluded from challenging the August affidavit on this appeal.

Nevertheless, we conclude that the district court did not err in allowing the wiretaps. The finding of probable cause based on the August affidavit had a substantial basis. The affidavit recites facts which provide substantial reason to believe that Valletta, Bishop, and DeVito were engaging in narcotics violations and that their communications concerning these violations would be intercepted by tapping their telephones. Bishop had informed the affiant that she was participating in a large-scale narcotics conspiracy involving DeVito and Valletta. She also had ingested what appeared to be cocaine in the affiant's presence, used the telephone in his presence to conduct what she described as a narcotics transaction, and asked him to store $150,000 in expected gains from that deal. Telephone records show unusually high telephone activity by DeVito and Valletta during the pendency of this supposed transaction and at other times when drug dealing was suspected. A confidential informant had told the affiant that he had heard Valletta admit he was a cocaine dealer and he had seen Valletta possess cocaine and accumulate wealth rapidly.

Nor do we believe the district court abused its discretion by finding that the August wiretaps were necessary under the circumstances. The wiretapping application for the August order demonstrated that normal investigative procedures had been employed in good faith, that they had not succeeded and were not reasonably likely to succeed in proving the illegal activity, if it was going on, and that wiretapping offered a substantially better chance of success. This satisfied section 2518(1)(c). The judge did not abuse his discretion under section 2518(3)(c) in believing the affiant's detailed assertions. Physical surveillance had been employed, but had failed to provide conclusive evidence, and continued surveillance was unlikely to be more successful under the circumstances of the case. Further infiltration by the one FBI agent may have been unusually dangerous because of certain threats and, without the testimony of the confidential sources as witnesses, may not have produced sufficiently reliable proof to convict. The telephone...