U.S. v. Verdin-Garcia

• Decision Date: 19 February 2008
• Docket Number: No. 06-3354.,06-3354.
• Citation: 516 F.3d 884
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fidencio VERDIN-GARCIA and Miguel Romero, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

516 F.3d 884

UNITED STATES of America, Plaintiff-Appellee, v. Fidencio VERDIN-GARCIA and Miguel Romero, Defendants-Appellants.

No. 06-3354.

United States Court of Appeals, Tenth Circuit.

February 19, 2008.

Theodore J. Lickteig, Overland Park, Kansas, for Defendant Appellant Fidencio Verdin-Garcia; Linda Mary Neal, Overland Park, Kansas, for Defendant-Appellant Miguel Romero.

Sheri McCracken, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with her on the brief), Kansas City, Kansas, for Plaintiff-Appellee.

Before HARTZ, McCONNELL, and HOLMES, Circuit Judges.

McCONNELL, Circuit Judge.

Fidencio Verdin-Garcia and Miguel Romero were convicted on March 21, 2006, of multiple crimes relating to their leadership of a large marijuana and methamphetamine trafficking conspiracy located in and around Kansas City, Kansas. Each was sentenced to serve three concurrent life sentences in prison, and to other, shorter concurrent sentences. They appeal, and we now affirm.

I. BACKGROUND

We take the evidence from Appellants' trial, as we must, in the light most favorable to the government. That evidence showed that Appellants are illegal immigrants from Nayarit, a western state in Mexico. With a number of family members they moved to Kansas City, where, as time went by, they abandoned odd jobs to focus on careers in drug dealing. Specifically, Mr. Verdin-Garcia and Mr. Romero directed the importation of large quantities of marijuana and methamphetamine, including "ice," from California, and they distributed the drugs principally in Kansas City, Kansas, and Kansas City, Missouri. In September 2003 the Federal Drug Enforcement Administration (DEA) began an investigation of Appellants' California affiliate, the Carra organization. This led them to Kansas, where in January 2004 they and the Kansas DEA opened an investigation into the Verdin-Garcia organization.

That investigation lasted approximately ten months. The DEA conducted extensive surveillance of nine residences in the Kansas City area out of which elements of the Verdin-Garcia organization operated, and identified over a dozen of its members. To gather additional intelligence on the structure and operations of the conspiracy, the DEA sought and obtained warrants for wiretaps of three cellular phones used by, among others, Mr. Verdin-Garcia and Mr. Romero. During the period of August 16 to November 2, 2004, law enforcement agents intercepted some 3000 telephone calls under these wiretaps, which they used to piece together many of the specifics of the organization's drug buys and sales, money transfers, and internal structure.

On September 29, 2004, co-conspirator Gustavo Castro was arrested with one pound of methamphetamine. On October 31, co-conspirator Arturo Zuniga was arrested with four ounces of methamphetamine. The next day, November 1, police arrested co-conspirators Victor Lemus-Cruz, Juan Carlos Avina, and Jose Insunza-Flores with half a pound of methamphetamine and two of the wiretapped phones in their possession. Before police could stop him, Mr. Avina called Mr. Verdin-Garcia to warn him of the bust. Within hours, police apprehended Appellants fleeing from Mr. Romero's hone. Searches of the conspirators' residences turned up scales, a vacuum sealer, money, and additional methamphetamine packaged for sale.

On February 4, 2005, Appellants were indicted on multiple charges of conspiracy, possession, and distribution of methamphetamine, and use of a communications facility to facilitate the commission of a drug felony. Mr. Romero was also charged with possession of a firearm by a felon, based on a 9mm handgun found in his home. After a ten-day trial, they were found guilty by a jury on March 21, 2006. Mr. Verdin-Garcia was convicted on fourteen counts and Mr. Romero on six. Mr. Verdin-Garcia was subsequently sentenced to three terms of life imprisonment and eleven terms of four years' imprisonment. Mr. Romero was sentenced to three terms of life imprisonment, one of ten years, and two of four years. They timely appealed.

II. DISCUSSION

Appellants bring three challenges to their convictions. They argue (1) that the wiretaps carried out during the investigation were invalid and wiretap-recorded evidence should have been excluded from their trial, (2) that translations of wiretapped conversations were improper and should have been excluded, and (3) that Mr. Verdin-Garcia's telephone calls made from prison after his arrest in this case were improperly recorded for use as voice exemplars and that derivative evidence should have been excluded. They also challenge their sentences, asserting both that they were incorrectly calculated and that the life terms are unreasonably long.

A. Wiretap Warrants

Federal investigatory wiretaps are governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-22. Section 2518 sets forth the requirements for issuance of a wiretap warrant. In particular, the government must submit a written application to the issuing magistrate laying out, among other things, "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." 18 U.S.C. § 2518(1)(c). This provision is called the "necessity requirement." See, e.g., United States v. Green, 175 F.3d 822, 828 (10th Cir.1999). "The purpose of this requirement is to ensure that the relatively intrusive device of wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." Id. (quoting United States v. Edwards, 69 F.3d 419, 429 (10th Cir.1995)) (internal quotation marks and further citation omitted). "Traditional investigative techniques" include surveillance, infiltration or undercover work, questioning of participants, execution of search warrants, and the use of pen registers and trap-and-trace devices. See, e.g., United States v. Ramirez, 479 F.3d 1229, 1240 (10th Cir. 2007); United States v. Ramirez-Encarnacion, 291 F.3d 1219, 1222 n. 2 (10th Cir.2002). Section 2518 does not, however, mandate exhaustion of all possibilities; the requirement is "met if the government demonstrates either [that] normal investigatory techniques have been tried and failed or that they `reasonably appear to be unlikely to succeed if tried, or to be too dangerous to try.'" Ramirez, 479 F.3d at 1240 (quoting United States v. CastilloGarcia, 117 F.3d 1179, 1187 (10th Cir. 1997)). The necessity requirement is not to be treated hypertechnically. We expect the government to act "in a common sense fashion," and on review we will take in "all the facts and circumstances in order to determine whether the government's showing of necessity is sufficient to justify a wiretap." Ramirez-Encarnacion, 291 F.3d at 1222 (internal quotation marks omitted). The overall burden on the government "is not great." United States v. Wilson, 484 F.3d 267, 281 (4th Cir.2007) (internal quotation marks omitted); United States v. McLee, 436 F.3d 751, 763 (7th Cir.2006) (internal quotation marks omitted); United States v. Armocida, 515 F.2d 29, 38 (3d Cir.1975).

Once a wiretap has been authorized by a judge, it is presumed proper and the burden is on the defendant to prove its invalidity. United States v. Radcliff, 331 F.3d 1153, 1160 (10th Cir.2003). On appeal, therefore, we review de novo whether "a full and complete statement" was submitted under 18 U.S.C. § 2518(1)(c), and we review for abuse of discretion the conclusion that a wiretap was necessary. Ramirez-Encarnacion, 291 F.3d at 1222 & n. 1.

Three wiretap applications are now at issue: those for target phones ("TP") 2, 3, and 4. Each application was supported by a lengthy affidavit from DEA Special Agent Shawn Buck. In this Court, Appellants assert that the government failed to make a sufficient showing of necessity, because these wiretap applications did not demonstrate the insufficiency of surveillance, questioning of witnesses or participants, use of search warrants, or infiltration. After review, we cannot agree.

As to the insufficiency and limitations of surveillance, the affidavits filed with the applications are quite thoroughly explanatory. See Aplts' Br., Vol. II, att. 1 ("TP2 Aff.") ¶¶ 40-53, at 18-23; att. 3 ("TP3 Aff.") ¶¶ 52-68, at 22-28; att. 5 ("TP4 Aff.") ¶¶ 54-72, at 23-30. The affidavits describe the fairly extensive surveillance that was conducted beginning in February 2004. They describe how the subjects became evasive under surveillance, and note that continued blanket surveillance would likely compromise the investigation. Furthermore, the affidavits explain that visual surveillance, however successful, cannot do much to establish the relationships between the investigation's subjects, the structure of their organization, the purposes of meetings, or the sources of their. drug supply. See TP2 Aff. ¶¶ 48, 50, at 21-22; TP3 Aff. ¶¶ 63, 65, at 26-27; TP4 Aff. ¶¶ 67, 69, at 28-29. Appellants argue that the affidavits do not show that surveillance had failed or had become too dangerous to continue. Indeed, the affidavits clearly show that surveillance was successful. But it was successful only to a point, and Appellants have shown no deficiency in the government's proffered rationale for needing wiretaps to move to another level.

As to interrogation of subjects, the applications were also sufficient. See TP2 Aff. ¶¶ 79-84, at 32-34; TP3 Aff. ¶¶ 83-88, at 33-35; TP4 Aff. ¶¶ 87-92, at 35-37. Appellants note that law enforcement apprehended organization members Francisco Acosta, Octavio Giner, and Brandy Walter, and could have asked them questions. (Walter was arrested after the TP2 application.) The affidavits spell out the information learned in interviews with these subjects, but they state, "[B]ecause such individuals fear for their physical safety, and the safety of their family, their own culpability and the...