United States v. Portillo-Uranga

• Decision Date: 10 March 2022
• Docket Number: No. 20-3191,20-3191
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Jorge PORTILLO-URANGA, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

28 F.4th 168

UNITED STATES of America, Plaintiff - Appellee,

v.Jorge PORTILLO-URANGA, Defendant - Appellant.

No. 20-3191

United States Court of Appeals, Tenth Circuit.

FILED March 10, 2022

Jonathan Laurans, Kansas City, Missouri, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Duston J. Slinkard, Acting United States Attorney, with him on the brief), Office of the United States Attorney, District of Kansas, Topeka, Kansas, for Plaintiff-Appellee.

Before TYMKOVICH, Chief Judge, SEYMOUR and EBEL, Circuit Judges.

TYMKOVICH, Chief Judge.

During a drug trafficking investigation that spanned several years, Drug Enforcement Administration (DEA) agents utilized judicially authorized wiretaps to intercept Jorge Portillo-Uranga's communications. After he was arrested and charged with drug trafficking crimes, Portillo-Uranga moved to suppress all evidence obtained from the wiretaps. He claimed, among other things, that (1) the government failed to establish its investigative need for the wiretaps, and (2) the interception of his communications occurred outside the authorizing court's territorial jurisdiction. After the district court denied his motion, Portillo-Uranga pleaded guilty but reserved the right to appeal the denial of the suppression motion. At sentencing, the district court applied a two-level sentencing enhancement for firearms possession because DEA agents found firearms and indicia of drug trafficking throughout Portillo-Uranga's ranch when they arrested him.

Portillo-Uranga contends the district court erred by denying his motion to suppress and by applying the sentencing enhancement for firearms possession. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. The district court did not err in finding the government established a need for the wiretaps, and the interception in Kansas satisfied controlling Tenth Circuit caselaw regarding territorial jurisdiction. The government also established a nexus between the firearms located on Portillo-Uranga's ranch and the drug trafficking charges.

I. Background

In 2012, the DEA launched an investigation into a Kansas City-based drug trafficking organization that distributed cocaine and marijuana and had ties to a drug cartel in Guadalajara, Mexico. Through confidential sources, DEA agents determined that an individual nicknamed "Pelon" or "Pelon Portillo" held a leadership role within the Kansas City organization. Pelon is defendant Jorge Portillo-Uranga.

The DEA intended to accomplish several objectives through its investigation. The agency aspired to learn the identities of key personnel within the organization as well as its drug suppliers and customers. The DEA also endeavored to locate the stash locations for drugs and discover how drug proceeds were distributed. The ultimate goal of the DEA's investigation was to obtain "admissible evidence that proves beyond a reasonable doubt" targeted individuals committed drug trafficking offenses. App., Vol. 9 at 2449.

The investigation occurred in two phases. The main objective of Phase I was to gather information about the organization's overall structure and identify key members. In pursuit of these goals, DEA agents utilized a variety of investigative techniques, such as confidential sources, controlled purchases, search warrants, pole cameras, and physical surveillance. Although many of these methods proved fruitful for the investigation, agents were unable to gather all the critical information they were seeking, such as the identities of leaders and supply sources. The agency therefore decided to seek judicial authorization for the use of wiretaps to intercept communications of targeted individuals. As part of their wiretap applications, investigating agents submitted affidavits that described their use of other investigative techniques and explained why wiretaps were necessary for the investigation.

A federal court in Kansas authorized the interception of wire and electronic communications of twelve different phones (referred to as Target Telephones #1–12) during Phase I, which lasted from May 2014 to July 2015. Although Portillo-Uranga's personal phones were not subject to any wiretaps during Phase I, Portillo-Uranga—through his nickname—was listed as a targeted individual in each Phase I wiretap application. Phase I culminated with the arrest and successful prosecution of over a dozen members of the organization. But despite achieving some success in Phase I, the DEA had failed to identify and arrest key leaders, such as Portillo-Uranga. The DEA therefore launched Phase II of the investigation, which focused on identifying and targeting leaders of the organization.

While agents continued using normal investigative techniques in Phase II, they again sought authorization for wiretaps to aid their investigation. In total, the DEA received authorization to intercept communications from nineteen phones (Target Telephones #13–32),¹ most of which were used by Portillo-Uranga or his main distributor, Jesus Arellanes-Portillo.

The Phase II wiretaps were active from December 2016 until around August 2017. During that period, agents intercepted over 400 of Portillo-Uranga's pertinent telephone conversations. The calls revealed that Portillo-Uranga—who at that time had not been identified and was still known to the DEA only by his nicknames—was responsible for facilitating the acquisition and distribution of at least 70 kilograms of cocaine and 450 kilograms of marijuana.

In December 2017, DEA agents executed a search warrant at Portillo-Uranga's ranch in Teague, Texas. When agents arrived at the property, Portillo-Uranga fled and hid under a porch. Agents quickly arrested him and identified him for the first time. During a subsequent search of the property, agents found handguns, assault rifles, fraudulent identification documents, numerous cell phones, cash, a ledger that was possibly used to track drug transactions, and a fuel tank that may have been used to transport drugs.

Portillo-Uranga was charged with eight counts related to his drug trafficking activities. He moved to suppress evidence obtained from the wiretaps on multiple grounds. After a hearing, the district court denied the motion.

Portillo-Uranga pleaded guilty—without a plea agreement—to the following counts: one count of conspiracy to distribute and possess with intent to distribute cocaine and marijuana; two counts of use of a communication facility to facilitate a drug trafficking offense; two counts of money laundering; and three counts of possession with intent to distribute more than 500 grams of cocaine.²

II. Analysis

Portillo-Uranga contends the district court erred by denying his motion to suppress and applying the two-level sentencing enhancement for firearms possession. He claims the district court should have suppressed the wiretap evidence because (1) the government failed to establish its need for the wiretaps, and (2) the interception of the calls did not take place within the territorial jurisdiction of Kansas as required by Title III and the wiretap authorizations. Portillo-Uranga also contests the district court's application of the sentencing enhancement for possession of firearms.

We conclude the government established necessity for the wiretaps, Portillo-Uranga waived his territorial jurisdiction argument, and the district court correctly applied the sentencing enhancement.

A. Motion to Suppress

At the district court, Portillo-Uranga argued that the wiretap evidence should be suppressed on the following grounds: (1) the wiretap tapes were not timely sealed; (2) the government did not follow proper minimization procedures; (3) the government did not provide records showing that interception occurred within Kansas; (4) the government failed to show necessity for the wiretaps; and (5) proper notice of the intercepted communications was not given to Portillo-Uranga. The district court rejected each ground and denied the motion to suppress.

On appeal, Portillo-Uranga raises only the necessity and territorial jurisdiction arguments as grounds for suppression. We find no error in the district court's denial of Portillo-Uranga's motion.

1. Necessity

Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, wiretap applications are subject to a necessity requirement that is "designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Foy , 641 F.3d 455, 464 (10th Cir. 2011) (quoting United States v. Kahn , 415 U.S. 143, 153 n.12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974) ). To obtain judicial authorization for a wiretap, the government must include in each application "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), 2518(3)(c). Normal investigative procedures include: (1) standard physical surveillance; (2) questioning witnesses or suspects, including through grand jury proceedings; (3) search warrants; (4) deploying confidential informants and undercover agents; (5) pen registers; and (6) trap and trace devices. Foy , 641 F.3d at 464 (citing United States v. Cline , 349 F.3d 1276, 1280 (10th Cir. 2003) ).

"Although the necessity requirement is intended to ensure that wiretaps are not used in situations where traditional investigative techniques may achieve law enforcement purposes, we do not require investigating officers to ‘exhaust all other conceivable investigative procedures before resorting to wiretapping.’ " Id. (quoting United States v. Zapata , 546 F.3d 1179, 1185–86 (10th Cir. 2008) ). But officers need to explain the need for wiretaps with "some degree of specificity" and provide facts related to the specific individuals targeted by the wiretap. Id. (citing Cline , 349 F.3d at 1280–81 ).

Once a wiretap has been authorized, it is...