United States v. Estrada, 091818 FED9, 16-50439

Docket Nº:16-50439, 16-50492
Opinion Judge:N.R.SMITH, CIRCUIT JUDGE
Party Name:United States of America, Plaintiff-Appellee, v. Ernie Leo Estrada, AKA Youngster, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Mark Anthony Rios, AKA Sharky, Defendant-Appellant.
Attorney:Jay L. Lichtman (argued), Los Angeles, California, for Defendant-Appellant Ernie Leo Estrada. William S. Harris (argued), Law Offices of Wm. S. Harris, South Pasadena, California, for Defendant-Appellant Mark Anthony Rios. Elana Shavit Artson (argued) and Nathanial B. Walker, Assistant United Sta...
Judge Panel:Before: Marsha S. Berzon and N. Randy Smith, Circuit Judges, and P. Kevin Castel, District Judge.
Case Date:September 18, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Ernie Leo Estrada, AKA Youngster, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Mark Anthony Rios, AKA Sharky, Defendant-Appellant.

Nos. 16-50439, 16-50492

United States Court of Appeals, Ninth Circuit

September 18, 2018

Argued and Submitted July 10, 2018 Pasadena, California

Appeal from the United States District Court for the Central District of California D.C. Nos. 5:14-cr-00107-VAP-44, 5:14-cr-00107-VAP-14 Virginia A. Phillips, Chief Judge, Presiding

Jay L. Lichtman (argued), Los Angeles, California, for Defendant-Appellant Ernie Leo Estrada.

William S. Harris (argued), Law Offices of Wm. S. Harris, South Pasadena, California, for Defendant-Appellant Mark Anthony Rios.

Elana Shavit Artson (argued) and Nathanial B. Walker, Assistant United States Attorneys; Lawrence S. Middleton, Chief, Criminal Division; Nicola T. Hanna, United States Attorney; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

Before: Marsha S. Berzon and N. Randy Smith, Circuit Judges, and P. Kevin Castel, [*] District Judge.

SUMMARY[**]

Criminal Law

The panel affirmed the district court's order denying a motion by two defendants to suppress incriminating statements intercepted by government wiretaps.

The panel held that the affidavits submitted by the FBI in support of the wiretap authorization were reasonably detailed, and did not contain a material misstatement or omission.

The panel also held that the district court did not abuse its discretion in determining that the wiretaps were necessary. The panel wrote that it was not illogical or implausible to conclude that the possibility of using a high-level confidential informant was unlikely to result in the successful prosecution of every member of the conspiracy.

OPINION

N.R.SMITH, CIRCUIT JUDGE

Ernie Estrada and Mark Rios ("Defendants") challenge the validity of a wiretap authorized by the district court.1 We affirm the district court's order denying Defendants' motion to suppress.

To obtain a wiretap, the government must submit an affidavit containing inter alia "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(1)(c). Here, the affidavits submitted by the Federal Bureau of Investigation ("FBI") in support of the wiretap authorization were "reasonab[ly] detail[ed]," see United States v. Garcia-Villalba, 585 F.3d 1223, 1229 (9th Cir. 2009), and did not contain a material misstatement or omission, see United States v. Rivera, 527 F.3d 891, 898 (9th Cir. 2008).

If the affidavit contains a "full and complete statement of the facts," the district court must determine in its discretion whether the affidavit submitted by the government shows that the wiretap is necessary given the possible effectiveness of traditional investigative techniques.2 18 U.S.C. § 2518(1)(b) & (3)(c).

In this case, the district court did not abuse its discretion in determining that the FBI had made the requisite showing of necessity. In particular, it was not "illogical" or "implausible" to conclude that the possibility of using a high-level confidential informant was unlikely to result in the successful prosecution of every member of the conspiracy. See United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc). The district court's conclusion was supported by the facts in the record: (1) the informant cooperated only after he was arrested in a separate incident and may have been unwilling to provide further assistance out of fear of retaliation; (2) the informant could have jeopardized the investigation by tipping off his co- conspirators; (3) the informant could have misled the investigators in an attempt to thwart the investigation or for personal gain; and (4) without the corroborating evidence collected using the wiretap, the informant's testimony may not have resulted in the successful prosecution of every member of the conspiracy.

I. FACTUAL AND PROCEDURAL BACKGROUND

The FBI began its investigation into the Westside Verdugo (a street gang subordinate to the Mexican Mafia) in early 2006.3 One of the primary goals of the investigation was to determine the nature, extent, and methods of the Westside Verdugo's racketeering and narcotics-trafficking activities, including "the identities and roles of the suppliers, accomplices, aiders and abettors, co-conspirators, and participants."

During the course of the investigation, the FBI became familiar with the operations of the Westside Verdugo and its connection with the Mexican Mafia. The FBI discovered that, through violence and other means, the Westside Verdugo had controlled the streets of San Bernardino, California and other areas within San Bernardino County for 40 years. The FBI also became aware that the Mexican Mafia (with the help of the Westside Verdugo) controlled the importation of drugs into the southern California prison system. In fact, all narcotics smuggled into the prisons were purportedly "taxed" one-third of the total quantity by the Mexican Mafia. The taxed quantities were then re-disbursed and sold with the proceeds going to Mexican Mafia members and some Westside Verdugo leaders. Westside Verdugo members allegedly participated in narcotics trafficking, extortion of non-gang drug dealers in their neighborhoods, and crimes of violence intended to enhance the reputation of the gang and to protect their territory from the encroachment of other gang members.

As part of its investigation, the FBI sought to obtain wiretaps4 on the telephones of several members of the Westside Verdugo including Jonathan Brockus.5 On August 26, 2010, Special Agent Matthew J. Tylman submitted a 113-page affidavit in support of the FBI's request for wiretaps. The affidavit explained that Brockus had been involved with the Mexican Mafia and the Westside Verdugo since at least 2006. In fact, the affidavit revealed that Brockus played a significant role in the Mexican Mafia's drug distribution activities in San Bernardino.

The affidavit also recounted recent interactions between Brockus and law enforcement. On April 7, 2010, San Bernadino Police officers conducted a routine traffic stop of Brockus and his girlfriend. During the traffic stop, officers found $2, 200 in cash and arrested Brockus's girlfriend because she was found in possession of methamphetamine. The officers also arrested Brockus and transported him to a detention center, where he was investigated further. During the subsequent custodial interrogation, Brockus claimed that the methamphetamine belonged to him and that his girlfriend should not go to jail. Brockus told the officers that he was the current Westside Verdugo "shot-caller," which involved collecting money from narcotics sales on behalf of Mexican Mafia members as well as "secretary work," which involved finding out, through incarcerated contacts, who controlled the "yards" at a particular prison. Brockus also told the officers that he was recently contacted by a man known to him only as "Champ." Champ told Brockus that he was "collecting taxes" on behalf of Mexican Mafia member Sal Hernandez. Brockus told the officers that he had collected $1, 000 from Westside Verdugo members and that he was supposed to give the money to Champ. Brockus was released from custody when he agreed to assist law enforcement authorities by identifying Champ.

On April 8, 2010, Brockus participated in a controlled delivery of $1, 000 to Champ. After listening to a phone call between Brockus and Champ through Brockus's speaker phone, law enforcement provided Brockus with $1, 000 to conduct a controlled delivery. Brockus then drove away to complete the controlled delivery while officers conducted surveillance. However, instead of driving immediately to the agreed upon location, Brockus first drove home. Approximately forty-five minutes later, Brockus left his home and drove around for about one hour, using what law enforcement described as counter-surveillance techniques. These counter-surveillance efforts prevented the officers from covertly following and observing Brockus the whole time. As a result, the officers contacted Brockus by phone. Brockus stated that he was on his way to meet Champ at the agreed upon location. The controlled delivery was successfully completed, and the officers identified "Champ" as Randy Avalos.

Based on this incident and other facts revealed during the investigation, Special Agent Tylman made the following observations in the wiretap affidavit: I believe that interviewing Brockus and the other Target Subjects would be unproductive because these individuals would be uncooperative, especially due to the fear of physical retaliation that the [Westside Verdugo] and [the Mexican Mafia] are known to impose on those who cooperate with law enforcement, including death. Also, although Brockus had cooperated with law enforcement during a custodial interview on April 7, 2010, as it pertained to his (Brockus) collection of money from [Westside Verdugo] gang members. [sic] I believe based on my involvement in this investigation and my training and experience that Brockus minimized his role in an on-going criminal conspiracy. For example, during the custodial interview Brockus admitted that he does collect money from [Westside Verdugo] gang members involved in the distribution of narcotics; however, Brockus was not forthcoming about the amounts of money he collects, when he collects the money and from whom he collects the money . . . . Brockus also never told the interviewing [Task Force Officers] about the types of narcotics...

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