U.S. v. Ippolito

• Decision Date: 29 October 1985
• Docket Number: No. 84-5257,84-5257
• Citation: 774 F.2d 1482
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Louis John IPPOLITO, Michael Contino, Irving Schwartz, William Darnold, Lawrence Miller, Thomas Arrants, and Arthur Joseph Natoli, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1482

774 F.2d 1482

UNITED STATES of America, Plaintiff-Appellant, v. Louis John IPPOLITO, Michael Contino, Irving Schwartz, William Darnold, Lawrence Miller, Thomas Arrants, and Arthur Joseph Natoli, Defendants-Appellees.

No. 84-5257.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 1985.

Decided Oct. 29, 1985.

James Henderson, Richard Small, Dept. of Justice, Los Angeles, Cal., for plaintiff-appellant.

Richard Sherman, Los Angeles, Cal., James Twitty, Beverly Hills, Cal., Arthur Mabry, Harland Braun, Samuel Jackson, Jackson & Wikle, Los Angeles, Cal., Milton E. Grusmark, Miami, Fla., for defendants-appellees.

Appeal from the United States District Court Central District of California.

Before GOODWIN, FLETCHER and PREGERSON, Circuit Judges.

FLETCHER, Circuit Judge:

The United States appeals from the district court's suppression of information gained through wiretaps. The district court relied on Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to hold that false and misleading information in government affidavits concerning the necessity of the wiretaps required suppression of the information derived from the wiretaps. We affirm.

FACTS

On November 3, 1982, the district court issued an order allowing the government to intercept certain wire communications. The government's application for the order was supported by an affidavit of Ralph E. Lumpkin, Special Agent, FBI, that included the following statements that the court, in subsequent hearings, found false or misleading:

118. The confidential informants referred to in the above paragraphs have all stated that they would not testify regarding the information they furnished to the Federal Bureau of Investigation because they fear retaliation to themselves or their families. The La Cosa Nostra, including the Los Angeles organized crime family, has had a reputation since the 1930's for reprisals against anyone who does not respect their demands or who would testify concerning illegal activity.

119. In addition, none of the sources utilized in this affidavit are familiar with At the suppression hearing it was developed that Hanophy, informant number 2, was working with agent Schettino, a former FBI agent in a Miami drug investigation involving Ippolito. Although Hanophy told FBI Agent Lumpkin and another agent, Sadler, that he would not testify in the California case because he feared Ippolito, it became apparent that this assertion was not entirely true. Rather, it developed that Agent Schettino had told Hanophy to say that he could not testify so that his refusal could be used to demonstrate the necessity of a wiretap in the California case. The testimony at the suppression hearing also established that Hanophy was willing and probably able to infiltrate the entire California conspiracy.

all the various aspects of the criminal enterprise and electronic surveillance is therefore, the only method of obtaining evidence as to all of the various criminal activities.

It is true that at the time of Hanophy's meeting with the FBI Agents, Hanophy was not aware of the involvement of several of the co-conspirators later indicted in this case. However, Hanophy testified that he had been an important part of Ippolito's importing schemes, that Ippolito wanted Hanophy to go to Colombia to help arrange for the drug connection, and that he knew the identity of some of the other co-conspirators at the time he was asked if he would testify. Hanophy also testified that he had expressed his willingness to have his conversation about the drug deals monitored and to draw conspirators out into the open where they could be brought under surveillance. Schettino characterized Hanophy's former involvement with Ippolito as being his "right hand man" and testified that at one point, when Hanophy was acting as an informant, Ippolito had asked Hanophy if he would run his operations while Ippolito served an up-coming prison term.

The district court found that the government had made intentionally false, reckless or misleading statements in paragraphs 118 and 119. The court then determined that a reasonable district court judge could have denied the wiretap application if the offending paragraphs were omitted and the affidavit was examined to see if there was necessity for the wiretaps or, alternatively, if the paragraphs were replaced with the truth and the affidavit was examined to see if there was necessity for the wiretaps. Accordingly, the district court found that the false statements and factual omissions were material and that suppression was required.

DISCUSSION

A. Standard of Review

The application of Franks v. Delaware to wiretap orders presents a question of law and therefore should be reviewed de novo. See Christensen v. United States, 755 F.2d 705, 707 (9th Cir.1985). Underlying factual findings of the district court regarding materiality are reviewable under the clearly erroneous standard. See United States v. Southard, 700 F.2d 1, 10 (1st Cir.), cert. denied sub nom. Ferris v. United States, --- U.S. ----, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983). The ultimate question, whether the misstatements are material, is a mixed question of law and fact and should be reviewed de novo. See United States v. McConney, 728 F.2d 1195, 1202-03 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

B. Franks Materiality

The district court found that the government made intentionally false or misleading statements in order to persuade the court that a wiretap was necessary. The court also found that the challenged statements and omissions were material to obtaining the wiretap order. It followed that the wiretap evidence should be suppressed. The Government does not seriously challenge the fact of intentional deception, but disagrees that the deception called for suppression.

In Franks v. Delaware, the Supreme Court determined the circumstances in which it is appropriate to suppress evidence derived from a warrant issued on the basis of an affidavit that contained false statements concerning probable cause. This circuit has not previously had occasion to apply the Franks analysis to false statements concerning the necessity for a wiretap sought by the government pursuant to 18 U.S.C. Sec. 2518. The Franks court held that the reviewing court should set the affidavit's false assertions to one side and then determine whether the affidavit's remaining content is still sufficient to establish probable cause. If the affidavit is not sufficient, the warrant must be voided and the fruits of the warrant suppressed. 438 U.S. at 156, 98 S.Ct. at 2676. Essentially, Franks has been interpreted to mean that the false statements must be material to a finding of probable cause. United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir.1983).

Franks emphasizes the importance of truthful information to the neutral detached magistrate who must determine whether there is probable cause. Id. 438 U.S. at 165, 98 S.Ct. at 2681. The same kind of considerations are important to the district court whenever it must decide whether to issue a wiretap order. Therefore, although Franks dealt specifically with probable cause, its reasoning applies in this context as well. As a general rule, proof that law enforcement officials either lied or made reckless misstatements in affidavits to secure a warrant or order does not in and of itself invalidate that warrant or order, or compel suppression of evidence obtained upon its execution. But false statements that are material in causing the warrant to issue will invalidate it. Because the challenged statements in the wiretap application at issue deal with the "necessity" or "alternative methods requirement" for obtaining a wiretap, it is first necessary to determine whether necessity is an essential, congressionally warranted requirement, and not merely a factor meant to "inform the issuing judge of the difficulties involved in the use of conventional techniques." United States v. Pacheco, 489 F.2d 554, 565 (5th Cir.1974), cert. denied, 421 U.S. 909, 95 S.Ct. 1558, 43 L.Ed.2d 774 (1975).

Title 18 U.S.C. Sec. 2518(1)(c) provides that each application for a wiretap authorization shall include:

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.

Title 18 U.S.C. Sec. 2518(3)(c) provides that in issuing a wiretap authorization order, the district court must determine whether:

normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.

These two sections together make up the so-called necessity requirement for granting a wiretap order. The statutory language suggests that before finding that a wiretap is necessary, the court must find that alternative methods have been tried or would not have succeeded. See United States v. Martinez, 588 F.2d 1227, 1231 (9th Cir.1978) (necessity requirement meant to limit use of wiretaps because of their intrusive nature where traditional investigative techniques would suffice; necessity must be apparent from affidavit); United States v. Spagnuolo, 549 F.2d 705, 711 (9th Cir.1977) (district judge must have opportunity to exercise statutory role and must be given information as to alternative methods in order to determine if wiretap is appropriate). The necessity showing and finding are therefore material to the issuance of a wiretap order and are subject to Franks. See United States v. Brooklier, 685 F.2d 1208, 1221 (9th Cir.1982) (per curiam) cert. denied, 459 U.S. 1206, 103 S.Ct. 1194, 75 L.Ed.2d 439 (1983) (Franks hearing requirements should apply to Sec. 2518 necessity determination).

C. Materiality of False Statements

The district court found that although the government had tried some alternative methods of...