U.S. v. Forcelledo
| Decision Date | 20 November 1990 |
| Docket Number | Nos. 89-30335,s. 89-30335 |
| Citation | 919 F.2d 146 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Elias Armenteros FORCELLEDO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jesus RENTERIA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Eduardo Diaz RENTERIA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Maria Elene GONZALEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rosa SAVINOVICH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angil GONZALEZ, a/k/a Miguel Gonzalez, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Timothy DESPAROIS, Defendant-Appellant. to 89-30338, 89-30340, 89-30342 and 89-30343. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before SKOPIL, O'SCANNLAIN and FERNANDEZ, Circuit Judges.
Elias Armenteros Forcelledo ("Forcelledo"), Maria Elene Gonzalez ("Maria Gonzalez"), Jesus Renteria, Eduardo Diaz Renteria ("Eduardo Renteria"), Rosa Savinovich ("Savinovich"), Miguel Angil Gonzalez ("Miguel Gonzalez"), and Timothy Desparois ("Desparois") appeal their convictions and sentences for various drug offenses. All of the defendants complain that the district court improperly admitted evidence obtained via a wiretap. Each defendant also complains that he or she was improperly sentenced under the Sentencing Guidelines. Forcelledo challenges his conviction on several other grounds such as improper evidentiary rulings, improper jury instructions, and juror misconduct. Desparois charges that the district court improperly admitted evidence seized from a car he was driving. Desparois also complains that the district court improperly found that his role in the conspiracy involved approximately six kilograms of cocaine. We affirm.
The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742.
In February of 1987, the FBI began investigating Forcelledo because it suspected that he was involved in a cocaine distribution organization. From its initial investigation, the FBI determined that Forcelledo was distributing cocaine and that the other defendants were also involved in the organization. By August 1988, the FBI had obtained telephone records for several of the defendants' residential telephones and pagers. The FBI had also been able to contact five confidential informants and two cooperating witnesses.
From the telephone records, the informants, and the witnesses, the FBI had learned the identities of several members of the distribution organization and had also learned that Forcelledo appeared to head the local organization. The FBI had been told that Forcelledo received his cocaine from a source in Miami and a source in California. The informants and witnesses described numerous drug sales in which they had been involved. Neither the informants nor the witnesses were able to identify the actual source of the organization's cocaine, the manner in which it was transported or all of the identities of the people involved with the organization.
In August of 1988, the FBI applied for authorization for a wiretap. The wiretap was approved as was a thirty-day extension beginning in September of 1988. The wiretap was terminated at the end of September 1988.
During the course of the wiretap, the FBI intercepted a call from a member of the organization, Pedro Perera, to Forcelledo. Perera told Forcelledo he had some cocaine in the garage of his house. Perera told Forcelledo that he might have been followed and that he wanted to move the cocaine from his house. Perera and Forcelledo discussed where to move the cocaine and Perera stated that he would call a guy to come to pick up the cocaine. Approximately fifteen minutes after the FBI intercepted the call, Desparois drove up to Perera's house. Desparois ultimately parked his car near the garage of Perera's house, went inside for a short period and then left. When Desparois had driven several blocks away, he was stopped by uniformed police officers. They handcuffed him and placed him in the police car. The police then searched the automobile and found five kilograms of cocaine in the trunk of the car.
All of the defendants were indicted in March of 1989. Each was charged with one count of conspiracy to possess and distribute cocaine. Eduardo and Jesus Renteria, Desparois and Forcelledo were also charged with one count each of possession of cocaine with intent to distribute. Prior to trial, the defendants challenged the validity of the wiretap authorization. The district court conducted a three-day Franks 1 hearing to resolve the issue and concluded that the wiretap application was valid and the wiretap was properly authorized. The defendants proceeded to trial during which all of these defendants except Forcelledo entered conditional guilty pleas preserving their rights to appeal. Forcelledo was found guilty on both charges in which he was named.
We review de novo the question of whether a wiretap was properly authorized. United States v. Torres, 908 F.2d 1417, 1421 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 272, 112 L.Ed.2d (1990) and 59 U.S.L.W. 3326 (U.S. Oct. 29, 1990) (No. 90-5767). We review for abuse of discretion the authorizing district court's decision that a wiretap was necessary for the government to adequately investigate a matter. United States v. Echavarria-Olarte, 904 F.2d 1391, 1395 (9th Cir.1990); Torres, 908 F.2d at 1422. Finally, we independently review the record to determine whether an application for a wiretap contains a material omission or misstatement of fact. United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir.1988).
In this case, all of the defendants argue that the district court should have suppressed the evidence garnered from the wiretap because the wiretap was not properly authorized, the wiretap was not necessary to the criminal investigation and the government's application for the wiretap contained material omissions. 2
Authorization.
Section 2516 of title 18 permits the Attorney General of the United States ("AG") to empower various assistants to authorize a wiretap. 18 U.S.C. Sec. 2516(1). One of those assistants is a Deputy Assistant Attorney General ("Deputy AAG"). The AG need not specifically authorize a Deputy AAG by name, but need only authorize the Deputy AAG by job title. Torres, 908 F.2d at 1421-22.
Here, the AG had specifically empowered the holders of the job title of Deputy AAG as persons who could authorize wiretaps. The wiretap in this case was authorized by a Deputy AAG. Therefore, the wiretap was properly authorized.
A wiretap should not be permitted unless the government can show 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." 18 U.S.C. Sec. 2518(3)(c); see also Torres, 908 F.2d at 1422. The government need not show that it has exhausted every other possible investigative technique and the appellate court should take a "practical and common sense approach" to the analysis. Echavarria-Olarte, 904 F.2d at 1396. See Torres, 908 F.2d at 1422; United States v. Brone, 792 F.2d 1504, 1506 (9th Cir.1986) ("[L]aw enforcement officials need not exhaust every conceivable alternative before obtaining a wiretap.").
In this case, the government sought a wiretap in the hope that it might learn more about the source of the organization's cocaine and the organization's method of operation. The government noted that it was unable to gain any further information from its informants because none of the informants held a position of sufficient trust within the organization. The government presented evidence that the informatns were mainly in the lower echelon of the organization or that they had already left the organization. Similarly, the government presented evidence that surveillance would not be fruitful because the only supplier addresses known to the government were "drop" houses. Since the government wanted to identify the source of the cocaine, it would need to know the address of the source before surveillance would be fruitful. The government presented substantial evidence that other investigative techniques would not have proved fruitful. The district court did not abuse its discretion when it ruled that the government had established that the wiretap was necessary to its investigation. 3
B. Material Omissions.
The government may not omit material information from a wiretap application. United States v. Ippolito, 774 F.2d 1482, 1485, 1486 n. 1 (9th Cir.1985). The government must present any information which would be necessary for a court to determine whether a wiretap should be permitted in a particular case. Id. If the government fails to do so, evidence obtained from the wiretap must be suppressed. Id.
Here, the defendants argue that the government omitted several pieces of material information. The defendants' primary complaint is that the government did not disclose certain facts which would have indicated to the court that several of the informants could have successfully penetrated the organization. The defendants contend that the issuing court was given the mistaken impression that use of informants was not a viable investigative technique. The district court concluded that none of the alleged omissions were material. The district court did not err. Given all of the evidence, it was perfectly reasonable for the government to...
To continue reading
Request your trial