USA. v. Blackmon

• Decision Date: 12 December 2001
• Docket Number: DEFENDANT-APPELLANT,No. 99-50534,PLAINTIFF-APPELLEE,99-50534
• Citation: 273 F.3d 1204
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,v. RODNEY BLACKMON, AKA SEAL A,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1204

273 F.3d 1204 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. RODNEY BLACKMON, AKA SEAL A, DEFENDANT-APPELLANT

No. 99-50534

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 12, 2000

Filed December 12, 2001

Richard M. Steingard; Los Angeles, California, for defendant-appellant Rodney Blackmon.

Michael Terrell, Assistant United States Attorney; Los Angeles, California, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the Central District of California William J. Rea, District Judge, Presiding D.C. No. CR-98-00536-WJR-1

Before: B. Fletcher, Thomas, and Wardlaw, Circuit Judges.

Opinion by Judge Betty B. Fletcher: Dissent by Judge Wardlaw.

Betty B. Fletcher, Circuit Judge

Defendant-appellant Blackmon was convicted of controlled substance-related offenses and sentenced to a 262-month term following a stipulated facts bench trial before the district court. Blackmon appeals his conviction and sentence and argues that the district court erred by (1) denying his motion to suppress wiretap evidence because the government's application for the wiretaps failed to make the statutorily required showing of necessity, or, in the alternative, (2) erred in denying a Franks evidentiary hearing. In addition, Blackmon argues that the district court abused its discretion in assessing a two-level aggravating role enhancement. We hold that the wiretap evidence should be suppressed because the wiretap application contained material misstatements and omissions, and because the application does not otherwise make a particularized showing of necessity.

BACKGROUND

The indictment against Blackmon followed an FBI narcotics investigation that utilized many wiretaps and investigated a number of suspects. An initial wiretap was authorized on April 29, 1997 on a phone primarily used by Maurice Miller (hereinafter "Miller wiretap"), a suspected narcotics trafficker who resided in the Jordan Downs Housing Project (JDHP) in Los Angeles, California. Approximately six months prior to its application for the Miller wiretap, the FBI began an investigation of Miller employing several traditional investigative techniques, including: informants, controlled drug purchases, surveillance, and trap/trace and pen registers. The Miller wiretap produced evidence that resulted in charges against Miller and others. Three subsequent wiretaps, which the government called "spin-offs" of the initial Miller wiretap, were authorized on June 18, July 23, and August 15, 1997. The three subsequent wiretaps (hereinafter "Blackmon wiretap") involved telephones primarily used by the appellant-defendant, Rodney Blackmon, who also resided in the JDHP. The necessity section of the FBI application for the Blackmon wiretap is, with a few alterations, a duplicate of the Miller wiretap application. Other than trap and trace devices and pen registers, no further investigative efforts were attempted in between the application for the Miller wiretap and that for the Blackmon wiretap. The Blackmon wiretap produced substantial evidence implicating Blackmon in drug trafficking activity.

Blackmon and three co-defendants were charged in a three-count indictment with one count of conspiracy to distribute a controlled substance, pursuant to 21 U.S.C. §§ 846, and two counts of possession with intent to distribute cocaine, pursuant to 21 U.S.C. §§ 841. Prior to trial, Blackmon sought to suppress wiretap-related evidence, alleging that the wiretap application failed to satisfy the "necessity" requirement. In the alternative, the defendant moved for a hearing pursuant to Franks v. Delaware. The district court denied Blackmon's suppression and Franks hearing motions. Thereafter, the parties submitted written stipulated facts that served as the sole evidence for a bench trial. The district court found the defendant guilty of the charges set forth in all three counts of the indictment. The court sentenced Blackmon to 262 months of incarceration, to be followed by a ten-year period of supervised release.

STANDARD OF REVIEW

We review de novo whether a full and complete statement of the facts was submitted in compliance with 18 U.S.C. §§ 2518(1)(c). United States v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986). If a full and complete statement was submitted, we review the issuing judge's decision that the wiretap was necessary for an abuse of discretion. Id. With respect to determinations made by the district court judge at the suppression hearing, we review underlying factual findings under the clearly erroneous standard. United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir. 1988).

ANALYSIS

Blackmon challenges the government's wiretap application for failing to comply with Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.§§ 2518(1)(c). As a general matter, Title III prohibits electronic surveillance by the federal government except under carefully defined circumstances. The procedural steps provided in the Act require "strict adherence." United States v. Kalustian, 529 F.2d 585, 588 (9th Cir. 1976) (citing United States v. Giordano, 416 U.S. 505 (1974)), and "utmost scrutiny must be exercised to determine whether wiretap orders conform to Title III." Id. at 589.

The provision in issue is §§ 2518(1)(c). Dubbed the "necessity requirement," it mandates that each wiretap application include:

(c) 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.

§§ 2518(1)(c). The necessity requirement " `exists in order to limit the use of wiretaps, which are highly intrusive.' " United States v. Bennett, 219 F.3d 1117, 1121 (9th Cir. 2000) (quoting United States v. Commito, 918 F.2d 95, 98 (9th Cir. 1990)). The statute requires that the issuing judge determine whether the wiretap application contains facts that support a finding that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. §§ 2518(3)(c). Taken together, §§§§ 2518(1)(c) and (3)(c) require a full and complete statement establishing necessity. The purpose of these requirements is to ensure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime. United States v. Kahn, 415 U.S. 143, 153 n.12 (1974).

Thus, we require a full and complete statement of specific allegations indicating why normal investigative procedures failed or would fail in the particular case. See United States v. Ippolito, 774 F.2d 1482, 1486 (9th Cir. 1985). Beyond the specificity requirement, we have adopted a "common sense approach" in which the reviewing court uses a standard of reasonableness to evaluate the government's good faith effort to use alternative investigative means or its failure to do so because of danger or low probability of success. Id.

In addition to assessing the application for an adequate showing of necessity, the suppression court must examine it to see whether it contains material misstatements or omissions regarding necessity.

Ippolito, 774 F.2d at 1485-86. If an application contains inaccuracies or significant omissions, the court must determine the facts relying on credible evidence produced at the suppression hearing to determine whether a "reasonable [issuing] judge could have denied the application because necessity for the wiretap had not been shown." Id. at 1486-87.

We conclude wiretap evidence against Blackmon derived from the wiretap should be suppressed for two interrelated reasons. First, the application, which is nearly a carbon copy of a previous application for a different suspect, contains material misstatements and omissions regarding the necessity for the wiretap. Second, purged of the material misstatements and omissions, the application contains only generalized statements that would be true of any narcotics investigation. It is bereft of specific facts necessary to satisfy the requirements of §§ 2518(1)(c).

I. Material Misstatements and Omissions

The necessity sections of the Miller and the Blackmon wiretap applications are nearly identical. Before seeking the wiretap against Blackmon, other than using trap and trace devices and pen registers, it appears that the government conducted no investigation targeted specifically at Blackmon. The "carbon copy" contains statements perhaps applicable to Miller, but not to Blackmon. As a result, discussion of physical surveillance and informants contains material omissions as applied to Blackmon.¹

A. Surveillance

The government's application claims that "on several occasions, law enforcement surveillance teams were compromised in an attempt to conduct surveillance operations on Blackmon and associates." This statement, which is copied from the Miller wiretap application except for the change of name, is untrue and could "mislead the issuing judge into believing that the [FBI] had utilized [surveillance as to Blackmon] before seeking the [Blackmon] wiretap." See Carneiro, 861 F.2d at 1180. The record is clear that no surveillance that the government attempted against Blackmon ever failed. This case is very similar factually to Carneiro where the court found the first wiretap order valid but subsequent ones tapping other suspects invalid because of failure to satisfy the showing of particularized investigative steps taken as to each and their failure. The Carneiro court held that the subsequent applications contained misstatements and omitted material information and reversed the district court's denial of suppression. Id. at 1180-81 ("The Harty wiretap application did not satisfy the necessity requirement because it contained material omissions and misstatements . . . . The principal defect with the affidavit is that it...