U.S. v. Rivera

• Decision Date: 02 June 2008
• Docket Number: No. 06-30483.,No. 06-30486.,No. 06-30474.,No. 06-30493.,06-30474.,06-30483.,06-30486.,06-30493.
• Citation: 527 F.3d 891
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gilberto Baez RIVERA, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Leonel Mendoza, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Rigoberto Baez Rivera, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Alice Espinoza, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

527 F.3d 891

UNITED STATES of America, Plaintiff-Appellee, v. Gilberto Baez RIVERA, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Leonel Mendoza, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Rigoberto Baez Rivera, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Alice Espinoza, Defendant-Appellant.

No. 06-30474.

No. 06-30483.

No. 06-30486.

No. 06-30493.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 25, 2007.

Filed June 2, 2008.

Beth M. Bollinger, Spokane, WA, for defendant-appellant Gilberto Baez Rivera.

Nicholas W. Marchi, Carney & Marchi, Seattle, WA, for defendant-appellant Leonel Mendoza.

Philip E. Nino, Spokane, WA, for defendant-appellant Rigoberto Baez Rivera.

Dan B. Johnson, Spokane, WA, for defendant-appellant Alice Espinoza.

Jane Kirk, Assistant United States Attorney, Yakima, WA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington; Edward F. Shea, District Judge, Presiding. D.C. Nos. CR-05-02075-EFS, CR-05-02075-WAE.

Before: BETTY B. FLETCHER, ANDREW J. KLEINFELD, and RONALD M. GOULD, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

Defendants Gilberto Baez Rivera ("Gilberto"), Rigoberto Baez Rivera ("Rigoberto"), Leonel Mendoza ("Mendoza") and Alice Espinoza ("Espinoza") appeal their convictions for conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846. Espinoza also appeals her conviction for intentional use of a communication facility in causing and facilitating conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 843(b). Defendants argue that the government failed to show necessity for a wiretap on two telephones and failed to properly minimize the various wiretaps it used in its investigation of the conspiracy.

Rigoberto also appeals his sentence of 168 months imprisonment on the ground that the district court, in calculating the applicable sentencing range under the United States Sentencing Guidelines, improperly applied a four-level enhancement to his offense level for his role as an "organizer or leader" pursuant to U.S.S.G. § 3B1.1. Rigoberto further argues that his sentence is unreasonable.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August 2003, the Drug Enforcement Administration ("DEA") opened an investigation of what it called the Rivera Drug Trafficking Organization ("Rivera organization"). Most suspected members of the Rivera organization lived in Yakima, Washington. Gilberto was believed to be the leader of the organization, and his brother Rigoberto was believed to be a key member. Mendoza and Espinoza, Gilberto's girlfriend, were also believed to be involved in the Rivera organization.

While the DEA applied for and obtained three separate wiretap authorizations, the only wiretap application challenged on appeal is a March 14, 2005 application by Assistant United States Attorney George Fruchterman ("AUSA Fruchterman"). The application was for a wiretap on two mobile telephones: "Target Telephone 1," which the DEA believed was being used by Jerardo Rivera, brother of Gilberto and Rigoberto and a suspected narcotics distributor for the Rivera organization; and "Target Telephone 2," which the DEA believed was being used by Rigoberto. The application was supported by an affidavit by DEA Special Agent John Schrock, who was the lead agent in the Rivera investigation.

In the affidavit, Agent Schrock explained that a confidential source, referred to as CS5, had engaged in numerous narcotics-related conversations with Jerardo over Target Telephone 1 in the course of negotiating four separate controlled purchases of cocaine. Agent Schrock also explained that, based on pen register analysis and physical surveillance, he believed that Jerardo had coordinated one of the controlled purchases with Rigoberto, and that Rigoberto had used Target Telephone 2 in the process.

The affidavit also stated that pen register analysis on both telephones indicated that Jerardo and Rigoberto were in frequent contact with various other suspected members of the Rivera organization, including Gilberto, Mendoza, Sabino Rivera, who was believed to facilitate the Rivera organization's money laundering, Tony Cuevas, a suspected narcotics distributor for the Rivera organization, and Alice Sambrano, who in 1996 had been stopped at the Mexico-United States border in a car containing 86.5 pounds of marijuana. In addition, telephone toll records showed that Target Telephone 2 had been used to place out-of-state, calling card and international calls, which indicated that it might have been used to contact sources of supply and points of distribution for narcotics.

In the affidavit, Agent Schrock explained why, in his opinion, use of the wiretap was the only available investigative technique reasonably likely to achieve the purposes of the Rivera investigation. Those purposes were (1) obtaining enough evidence "to prove beyond a reasonable doubt" that the persons expected to be intercepted, as well as others yet unknown, were committing various narcotics-related offenses; and (2) obtaining "critical information" about: the full scope of the Rivera organization's operation, including the identities and roles of "persons involved in transporting, unloading, storing, and supervising the delivery" of narcotics; the identities of "narcotics suppliers" to the Rivera organization; and the money laundering operation, specifically who controls the "disposition of proceeds generated by narcotics trafficking" and "where the proceeds ultimately go."

The district court (Suko, J.) authorized the wiretap on March 14, 2005.

Between March 15 and May 3, 2005, the DEA carried out the various authorized wiretaps. Special Agent Jacob Gilliam was the agent mainly in charge of the monitors who listened to the intercepted calls. A memorandum containing instructions for minimizing the wiretap had been prepared by AUSA Fruchterman.

Following the termination of the wiretaps, the government in an indictment and superseding indictment charged twenty-one persons, including Defendants, with conspiracy to distribute a controlled substance and other offenses related to drug trafficking.

Several of the persons charged, including Gilberto and Mendoza, filed motions to suppress wiretap evidence based on failure to show that the wiretaps were necessary and failure to properly minimize them. All other defendants joined in the motions. The district court (Shea, J.) held hearings on the suppression motions and denied them.

Gilberto, Rigoberto and Mendoza pleaded guilty to count one of the superseding indictment — conspiracy to distribute a controlled substance (methamphetamine) in violation of 21 U.S.C. § 846 — but reserved the right to appeal the denial of their suppression motions based on lack of necessity and failure to minimize the wiretaps. The district court sentenced Gilberto, Rigoberto, and Mendoza to prison terms of 192 months, 168 months, and 60 months, respectively.

Espinoza was tried by jury. The jury returned a verdict of guilty as to counts one and twenty-one of the superseding indictment — conspiracy to distribute a controlled substance (methamphetamine) in violation of 21 U.S.C. § 846, and intentional use of a communication facility in causing and facilitating conspiracy to distribute controlled substances in violation of 21 U.S.C. § 843(b). The district court sentenced Espinoza to prison terms of 30 months for each count, to be served concurrently.

II. DISCUSSION

A. Necessity of the Wiretap

Defendants argue that the government failed to demonstrate that the wiretap on Target Telephones 1 and 2 was necessary. We disagree.

1. Applicable Standards

Wiretap authorizations are governed by the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2522. "To obtain a wiretap, the government must overcome the statutory presumption against this intrusive investigative method by proving necessity." United States v. Gonzalez, Inc., 412 F.3d 1102, 1112 (9th Cir.2005) (citing United States v. Blackmon, 273 F.3d 1204, 1207 (9th Cir.2001)). The necessity requirement for wiretap orders derives from 18 U.S.C. § 2518(1)(c) and (3)(c).¹ See Gonzalez, Inc., 412 F.3d at 1112.

In reviewing a district court's denial of a motion to suppress where that motion asserts lack of necessity for a wiretap, we review de novo whether an application for a wiretap order is supported by a full and complete statement of the facts in compliance with 18 U.S.C. § 2518(1)(c). United States v. Staves, 383 F.3d 977, 980 (9th Cir.2004) (citing Blackmon, 273 F.3d at 1207). Next, we review for abuse of discretion the issuing judge's conclusion that the wiretap was necessary. United States v. Lynch, 437 F.3d 902, 912 (9th Cir.2006) (en banc).

2. Whether the Affidavit Contains a Full and Complete Statement of the Facts

In reviewing whether an affidavit contains a full and complete statement of facts in compliance with § 2518(1)(c), we assess whether the affidavit attests that adequate investigative tactics were exhausted before the wiretap order was sought or that such methods reasonably appeared unlikely to succeed or too dangerous. Gonzalez, Inc., 412 F.3d at 1111. "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." United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir.1985).

Agent Schrock's 45-page affidavit adequately describes the DEA's use of various investigative techniques throughout its 19-month investigation of the Rivera organization, explains why those techniques did not...