U.S. v. Homick

Decision Date15 May 1992
Docket NumberNos. 91-10091,91-10092,s. 91-10091
Citation964 F.2d 899
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Delores HOMICK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles DIETZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Gregg Marlowe, Theodore J. Manos & Associates, and Cal Potter, Lovell, Bilbray & Potter, Las Vegas, Nev., for defendant-appellant.

Frank Marine, Asst. U.S. Atty., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: REINHARDT, NOONAN and THOMPSON, Circuit Judges.

REINHARDT, Circuit Judge:

Delores Homick and Charles Dietz appeal their convictions on one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371, and one count of wire fraud, in violation of 18 U.S.C. § 1343. We affirm.

BACKGROUND

On December 11, 1985, Bobby Jean Tipton, her housekeeper, and a delivery man were murdered during the course of a robbery at the Tipton residence in Las Vegas, Nevada. While investigating the robbery and murders, the Las Vegas police became suspicious of appellant Delores Homick's ex-husband, Steven Homick (Steve), and his two brothers, William and Robert. On January 16, 1986, the police sought and received authorization from a Nevada state court judge to place wiretaps on the three telephone numbers at the residence of Steve and Delores Homick and the one telephone number at William Homick's residence. The affidavit submitted in support of the wiretap application was based on information received from an FBI informant unfamiliar to the Las Vegas police.

In a dual operation, the Las Vegas Metropolitan Police Department and the FBI monitored telephone calls to the two residences over a 60-day time period. 1 On On February 1, 1986, Detective Dillard of the Las Vegas police contacted appellant Dietz. In response to Dillard's questions, Dietz claimed ownership of the ring and stated that he had purchased it over ten years ago. Dillard informed Dietz that he would have to present some proof of ownership in order to reclaim the ring. Later that night, the police intercepted a telephone call from Steve Homick in California to Delores Homick at the residence in Las Vegas. Steve told Delores to type out an affidavit stating that she knew the ring belonged to Dietz. Delores agreed to do so. 2

                January 29, 1986, the police arrested Ronald Bryl at his residence on unrelated charges.   Pursuant to a search warrant, the police seized a number of firearms and a small package.   The package, which bore a return address to "C. Dietz" at William Homick's address, was found to contain a diamond ring that was part of the property stolen from the Tiptons.   The next day, Bryl telephoned William Homick and asked William to tell Steve about his arrest and the seizures.   The following day, January 31, the police intercepted a series of conversations between William Homick and Dietz, Robert Homick, and Bryl, in which the parties discussed possible methods of recovering the ring from the police
                

Between February 2 and February 20, the police intercepted one telephone call between Steve and Delores, one call between Delores and Dietz, and three calls between Dietz and the Homick brothers that related to the ring. Additionally, both Delores and Dietz were mentioned in various conversations between others regarding the ring. During the conversation between Dietz and Delores, Dietz coached Delores on the wording of the affidavit and attempted to get her to agree that she had seen the ring in California years before. However, Delores indicated that she had only seen the ring since moving to Las Vegas. Several days later, Steve telephoned Delores from Houston, Texas, and instructed her to destroy the affidavit and "flush it down the toilet." Finally, on February 20, William Homick telephoned Dietz and told him to inform the police that he had been unable to obtain an affidavit. Dietz decided to do nothing.

Delores and Dietz, along with Steve, William, and Robert Homick, were indicted by a federal grand jury for conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371, and wire fraud, in violation of 18 U.S.C. § 1343. The wire fraud and conspiracy charges were originally part of an eleven-count indictment that included counts relating to the Tipton robbery and murders. However, the court granted Delores's motion to sever the charges against her and Dietz for trial. After a jury trial, Delores and Dietz were convicted on both charges. The court sentenced Delores to five years probation under special conditions, including 100 hours of community service, and imposed a fine of $1,000. Dietz received a sentence of ninety days imprisonment for the wire fraud offense and four years probation plus a fine of $2,000 for the conspiracy offense. These timely appeals followed.

DISCUSSION

I. Wiretap Evidence

Delores appeals the district court's denial of her motion to suppress evidence obtained from the wiretaps placed on her three telephone lines. She contends that the government failed to meet the necessity requirement for issuance of a wiretap authorization, failed to minimize the interceptions, and improperly intercepted conversations outside the scope of the authorization. She further argues that she was entitled to an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), on the question whether the affidavit submitted in support of the government's application was based on false statements. Because Delores had a reasonable expectation of privacy as to the residence that she shared with Steve she has standing to challenge the interception orders.

We generally review the district court's denial of a motion to suppress evidence de novo. United States v. Thomas, 844 F.2d 678, 680 (9th Cir.1988). Evidence obtained pursuant to a state court wiretap authorization is not subject to suppression in federal court if that evidence was obtained in compliance with federal law. United States v. Chavez-Vernaza, 844 F.2d 1368, 1372 (9th Cir.1987).

An application for a wiretap authorization must contain a "full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3)(c); United States v. Brone, 792 F.2d 1504, 1506 (9th Cir.1986). However, the statute does not require that the government "exhaust every conceivable alternative before obtaining a wiretap." Id. (citing United States v. Spagnuolo, 549 F.2d 705, 710 (9th Cir.1977)). Because the question of necessity is factual in nature, we apply an abuse of discretion standard to the district court's determination that the government made the required showing. United States v. Commito, 918 F.2d 95, 98 (9th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 224, 116 L.Ed.2d 181 (1991).

The affidavit filed by Detective Dillard in support of the application described the evidence implicating Steve Homick in the Tipton murders. That evidence included pen registers showing telephone calls from the Homick residence to the Tipton residence and statements by an FBI informant that Steve had admitted that he was planning to kill someone. The affidavit further stated that available investigative methods had proved insufficient to allow the government to identify all suspected conspirators in the Tipton robbery and murders, and that investigative leads were "at a standstill." We conclude that the district court did not abuse its discretion in determining that electronic surveillance of the Homick brothers was necessary to enable the investigation to proceed.

Section 2518(5) of the wiretap statute contains a requirement that the government minimize surveillance. The question whether the government failed to comply with section 2518(5) requires an examination of the monitoring officers' conduct in light of the particular circumstances of the case. Scott v. United States, 436 U.S. 128, 137-38, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978). The government admits that it intercepted numerous calls to the Homick residence that were entirely unrelated to the investigation. However, the Court has indicated that the interception of even a relatively high percentage of nonpertinent calls is an inaccurate indicator of whether or not the government complied with the minimization requirement. Id. at 140, 98 S.Ct. at 1724. Because many telephone calls are brief in duration, a listener frequently cannot determine a particular call's relevance to the investigation before the call has been completed. Id. The government testified that its agents were instructed to listen to all conversations for two minutes and to terminate surveillance after that time unless the conversation was relevant to the robbery and murders specified in the wiretap order. Evidence at trial indicated that the monitoring agents followed those orders. In light of Scott, and in the absence of further evidence regarding the nature and length of telephone calls in general and calls involving criminal conspiracy in particular, we are reluctant to conclude in this case that the two-minute cutoff violated the statute. However, we express no view of the propriety of employing such a procedure in other circumstances or of the result we might reach on the basis of a fuller evidentiary record.

Delores further argues that because she was not the target of either the initial interception order or the extension, she should not have been subjected to random eavesdropping by law enforcement agents seeking information about others. "[A] wiretap application must name an individual if the [g]overnment has probable cause to believe that the individual is engaged in the criminal activity under investigation...." United States v. Donovan, 429 U.S. 413, 428, 97 S.Ct. 658, 668, 50...

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