United States v. Curtis Hendrix

FILED
NOT FOR PUBLICATION OCT 22 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10320

Plaintiff - Appellee, D.C. No. 1:08-cr-00232-LJO-1

v.
MEMORANDUM*
CURTIS HENDRIX,

Defendant - Appellant.

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted October 11, 2013
San Francisco, California

Before: WALLACE, M. SMITH, and IKUTA, Circuit Judges.

Curtis Hendrix appeals from the district court’s judgment sentencing him to

360 months in prison after he pleaded guilty to conspiracy to distribute cocaine

base, and distribution and possession with intent to distribute cocaine base. He

argues that the district court erred in denying his motion to suppress evidence

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
obtained through wiretaps, asserting that the affidavits supporting those wiretaps

failed to establish the requisite necessity. We have jurisdiction under 28 U.S.C. §

1291, and we affirm.

We review a district court’s decision that a wiretap is necessary for abuse of

discretion. United States v. Canales Gomez, 358 F.3d 1221, 1225 (9th Cir. 2004).

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. (quoting United States v. Blackmon, 273 F.3d 1204,

1207 (9th Cir. 2001)). Although a wiretap “should not ordinarily be the initial step

in the investigation,” law enforcement officials “need not exhaust every

conceivable alternative before obtaining a wiretap.” Id. at 1225–26 (quoting

United States v. McGuire, 307 F.3d 1192, 1196–97 (9th Cir. 2002)). Finally, the

mere fact that law enforcement officials “could have taken different or some

additional steps in [their] investigation does not demonstrate that the district court

abused its discretion in upholding the wiretap order.” United States v. Carneiro,

861 F.2d 1171, 1178 (9th Cir. 1988).

Hendrix argues that the police had achieved some success in their

investigation of Hendrix’s gang, and thus that the wiretaps at issue here were

unnecessary. However, the fact that a law enforcement agency has had some
success in its investigation of a criminal conspiracy does not preclude the

government from showing the necessity of a wiretap to further advance its

investigation. See United States v. Bennett, 219 F.3d 1117, 1122 (9th Cir. 2000)

(stating that “the mere attainment of some degree of success during law

enforcement’s use of traditional investigative methods does not alone serve to

extinguish the need for a wiretap”). Moreover, a “wiretap can be necessary if it

gives the government the ability to develop an effective case.” McGuire, 307 F.3d

at 1198 (internal quotation marks omitted). Here, the affidavits make clear that the

goal of the wiretaps was to obtain further evidence to support the prosecution of

Hendrix’s street gang. Such evidence would make prosecution of the gang “more

effective.” Id. at 1198–99.

Hendrix’s argument that the affidavits failed to “make a sufficient

particularized showing of necessity” relies on this court’s opinion in United States

v. Blackmon, 273 F.3d 1204. However, Hendrix’s reliance on Blackmon is

misplaced. As we have repeatedly explained, Blackmon was predicated on a

finding that “the wiretap application ‘contain[ed] material omissions and

misstatements’ that, when purged, left a deficient application.” Canales Gomez,

358 F.3d at 1225 (quoting Blackmon, 273 F.3d at 1211); see also United States v.

Fernandez, 388 F.3d 1199, 1237 (9th Cir. 2004) (stating that the holding in

Blackmon “was premised on a finding that the affidavits supporting the wiretap
applications were plagued by material misrepresentations and omissions”). Here,

by contrast, the affidavit is not “plagued by material misrepresentations and

omissions,” which means that Blackmon is inapposite.

We reject Hendrix’s argument that the second affidavit did not establish

necessity due to its supposedly “boilerplate” and “conclusory assertions,” because

the second affidavit included information from the first affidavit that was

individually relevant to Hendrix, as well as new information learned during the

continued investigation. Because the issuing judge indicated that he had

considered the original affidavit as well as reading the new, highlighted

information in the second affidavit, we also reject Hendrix’s argument that the

judge did not adequately review the second affidavit in determining that the

additional wiretap was necessary.

AFFIRMED.