F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 8 1998
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4164
(D. Utah)
VICTOR MEDINA DIAZ, (D.Ct. No. 96-CR-136-01-C)
Defendant-Appellant.
____________________________
ORDER AND JUDGMENT *
Before McKAY, BRORBY, and MURPHY, Circuit Judges.
This case involves the investigation of a narcotics distribution organization
based in Salt Lake City, Utah. In March 1995, a vehicle with Utah license plates
was involved in an armed confrontation on the border between the United States
and Mexico. The United States Customs Service reported the incident to law
enforcement officials in Salt Lake County. Soon after, a joint federal and state
investigation was initiated, focusing on the home of the registered owner of the
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
vehicle. The investigation revealed the likely existence of a drug ring, but the
investigators were unable to uncover the scope of the criminal organization.
Looking to break open the investigation, a detective in the Salt Lake
County Sheriff’s Office, Kevin Judd, filed a forty-four page affidavit in support
of the investigators’ application for a telephone tap. In the affidavit, Detective
Judd established probable cause for the wiretap and explained why it was
necessary due to the ineffectiveness of ordinary investigative techniques. In
response to the application, a Utah state court issued a wiretap order.
Investigators employed the wiretap and obtained evidence against Mr. Victor
Diaz.
Ultimately, Mr. Diaz was charged in a one-count indictment with
conspiracy to possess methamphetamine with intent to distribute, in violation of
21 U.S.C. § 846. Prior to trial, Mr. Diaz moved to suppress the wiretap evidence.
After holding a hearing, a magistrate judge issued a Report and Recommendation
that the motion be denied. Over Mr. Diaz’ objection, the district court adopted
the magistrate judge’s findings and denied the motion. Mr. Diaz then entered a
conditional plea of guilty reserving his right to appeal the district court’s denial
of his motion. See Fed. R. Crim. P. 11(a)(2). The district court sentenced Mr.
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Diaz to the statutory minimum of 120 months in prison.
On appeal, Mr. Diaz contends the district court erred in finding the
affidavit supporting the wiretap application satisfied the necessity requirement of
18 U.S.C. § 2518(1)(c).
“On appeal from a motion to suppress, we accept the district court’s factual
findings unless clearly erroneous, review questions of law de novo, and view the
evidence in the light most favorable to the prevailing party.” United States v.
Edwards, 69 F.3d 419, 428 (10th Cir. 1995) (citing United States v. Williamson, 1
F.3d 1134, 1135 (10th Cir. 1993)), cert. denied, 517 U.S. 1243 (1996). Whether
the court’s order authorizing interception of wire, oral, or electronic
communications complies with the “necessity” requirement is a question of law
we review de novo. See United States v. Castillo-Garcia, 117 F.3d 1179, 1186
(10th Cir.), cert. denied, 118 S. Ct. 395 and 118 S. Ct. 428 (1997). The defendant
bears the burden of overcoming our presumption the wiretap authorization was
proper. Edwards, 69 F.3d at 429.
The wiretap authorization challenged by Mr. Diaz was obtained pursuant to
Utah law. See Utah Code Ann. § 77-23a-10. However, we must apply the federal
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standard, found at 18 U.S.C. § 2518, to determine whether evidence obtained
from a wiretap is admissible in federal court. See United States v. Quintana, 70
F.3d 1167, 1169 (10th Cir. 1995). Utah’s wiretap statute is similar in all material
aspects to the federal wiretap statute. Compare with 18 U.S.C. § 2518.
Section 2518 requires, in part, that the applicant for a wiretap make a full
and complete statement concerning why it is necessary. 18 U.S.C. § 2518(1)(c).
To do this, the applicant must explain “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.” Id. The judge granting the
applicant’s request must make 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).
We have held:
If any of the four categories of normal investigative techniques ...
have not been tried, the government must explain with particularity
why each of such untried techniques would be either unsuccessful or
too dangerous. Those investigative procedures are: (1) standard
visual and aural surveillance; (2) questioning and interrogation of
witnesses or participants (including the use of grand juries and the
grant of immunity if necessary); (3) use of search warrants; and (4)
infiltration of conspiratorial groups by undercover agents or
informants. In addition, if other normal investigative techniques
such as pen registers or trap and trace devices have not been tried, a
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similar explanation must be offered as to why they also would be
unsuccessful or too dangerous.
Castillo-Garcia, 117 F.3d at 1187. We require that the statements supporting a
wiretap application “be factual in nature and they must specifically relate to the
individuals targeted by the wiretap.” Id. at 1188. As mentioned above, Mr. Diaz’
contends the affidavit supporting the wiretap application did not satisfy this
necessity requirement. 1
Standard visual or aural surveillance
The affidavit explains that “[b]ecause of the surveillance consciousness of
the conspirators, investigators are hesitant to conduct a more active surveillance
than is described ... for fear of being detected by the suspects.” It also asserts
surveillance would provide insufficient evidence to prove the purpose of meetings
among the suspects. The affidavit states that because the suspects are extremely
cautious, extended surveillance would result in discovery of the investigators. In
support of this point, the affidavit notes: “[The suspects] closely monitor their
1
Mr. Diaz argues that because many factual gaps exist in the affidavit, it fails to
explain what was happening in the investigation during long periods of time. No doubt
time, space, and relevancy concerns lead Detective Judd to limit the content of his
affidavit. We can only assume he included all the information he believed to be pertinent.
Absent evidence of specific facts that significantly undercut the assertions made in the
affidavit, we will base our decision on what the affidavit contains, rather than what it
does not contain.
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automobile mirrors and frequently look out of their windows, both at home and
while in their automobiles, to ascertain if there are any suspicious persons or
vehicles in the area.” In one instance, investigators noticed they were being
followed by a suspected member of the organization while they were following a
suspect. In another instance, a suspect managed to lose his surveillance after
driving evasively and constantly checking his rear-view mirror.
Mr. Diaz specifically challenges the sufficiency of the affidavit as it relates
to this category of investigative technique. He suggests the investigators failed to
establish why visual surveillance would not have worked just as well as a wiretap
in this case. We disagree. The affidavit explains that some surveillance had been
tried, but it was clear the suspects were on the look-out. The claims in the
affidavit are not defeated just because the investigators occasionally were able to
track the suspects. 2
2
Along this line, Mr. Diaz essentially argues this investigation was going so well
a wiretap was unnecessary. To prove his point, he refers the court to the evidence
resulting from the several-year-old investigation disclosed in the affidavit. The
government characterizes its progress at the time this application was made as being
composed of many insights, but not a complete picture. We are not persuaded by a
review of the affidavit that the investigators had their case close to completion. Although
the affidavit demonstrates the investigators had been making progress (in part from other
wiretaps), it specifically identifies the information sought by investigators and relates why
a wiretap is necessary to obtain that information.
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Questioning or interrogation under an immunity grant
The affidavit explains that there were “no known individuals with full
knowledge of the entire scope of the criminal activity who are not themselves
targets of th[e] investigation.” Therefore, “[o]ffering immunity from prosecution
or interviewing witnesses would not result in the accumulation of evidence
sufficient to uncover the full scope and extent of the offenses committed by th[e]
organization.” The affidavit mentions that investigators have interviewed
“several people” who know the suspects, and they have not found anyone with
information concerning the suspects’ suppliers or how the suspects smuggle the
drugs into the country. According to the affidavit, “[o]nly those individuals
integrally involved in the organization at a high level possess the requisite
information.”
Search warrants
The affidavit explains that “the use of search warrants would not provide
the evidence necessary to determine the full scope and extent of the criminal
enterprises” of the suspects because they “store large quantities of narcotics and
the proceeds derived from narcotics sales in ‘safe houses.’” The investigators had
not located all the safe houses. The investigators hoped to locate the safe houses
through the wiretap.
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Undercover activities and confidential informants
The affidavit discloses that unsuccessful attempts had been made to
introduce undercover officers into the organization and that future attempts might
jeopardize the investigation. It also states that the informants the investigators
have within the organization were not trusted enough by the suspects to
successfully introduce an undercover officer at a significant level of the
operation. The affidavit explains that no future attempts to introduce an
undercover officer into the organization were planned because it was considered
too dangerous and because it would be too difficult to “infiltrate the conspiracy at
a level high enough to identify all members of the conspiracy or otherwise satisfy
all the goals of this organization.” Furthermore, three of the four suspects
described in the affidavit are members of the Diaz family, suggesting the
conspiracy may have been especially difficult to penetrate with outsiders.
Mr. Diaz challenges the assessment in the affidavit that infiltration would
be too dangerous. It is true, as Mr. Diaz notes, the affidavit does not mention the
use of guns beyond its recitation of the border confrontation and the firearms
conviction of one of the suspects. However, it is clear from the affidavit that the
investigators were dealing with a conspiracy involving persons who were willing
to face down United States Customs Agents with automatic weapons. Detective
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Judd thought the danger from these suspects was serious enough to swear to it in
the affidavit. We do not think this danger was too far removed to justify the
statements in the application.
The affidavit indicates that informants had only been able to relate
information concerning “a small and localized segment of the organization.” It
explained that “given the insular nature of the organization,” it is unlikely that
informants will ever be able “to provide the requisite information necessary to
identify all those individuals who are directing and controlling the drug
trafficking activities of the organization.” It also explained that the investigators
had not encouraged any informants to attempt to penetrate deeper into the
organization because of the “careful and suspicious nature” of the suspects.
Furthermore, the affidavit indicates that the available confidential informants
would not, on their own, be sufficient for a successful prosecution.
Mr. Diaz argues the explanation of confidential informants as it relates to
the necessity requirement is perfunctory. We disagree. A full discussion of the
background and reliability of each informant is not required. Furthermore, we see
no reason to require the attempted use of informants as to each new suspect, as
Mr. Diaz seems to suggest. We agree with the magistrate judge: “It cannot be
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said that there is any indication, given the insular nature of the trafficking, that
informants could provide additional information as to the scope of the
conspiracy.... The conclusion as to informant information likely being ineffective
is reasonable given the totality of the facts in the affidavit.”
Pen registers and trap and trace devices
The affidavit reveals the investigators obtained the toll records of all calls
placed from the target phone number. In addition, according to the affidavit, pen
registers and trap and trace devices were used on the target phone number. The
affidavit explains that use of these techniques exposed “patterns indicative of
narcotics trafficking by the targets.” However, according to affidavit, they failed
to provide necessary information, like who is making and receiving the calls, and
what is being discussed. Furthermore, the affidavit states the investigators are
“incapable of identifying specific shipments of narcotics” using these techniques.
Recently, this court decided a similar appeal brought by Mr. Diaz’s brother,
one of his co-defendants. 3 See United States v. Diaz, No. 97-4151, 1998 WL
380935 (10th Cir. Jun. 17, 1998). Although that case involved a different wiretap
3
The wiretap application in the co-defendant’s case was reviewed by the same
state judge as the one in this case.
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application, and, as such, it does not control, it did involve the same
investigation. The affidavit’s statements in that case are the same as the
affidavit’s statement in this case in every material aspect. Id. at *2-3. We ruled
in that case Mr. Diaz’s brother failed to overcome the presumption that the
wiretap order was proper. Id. at *4.
We believe that assessment applies to this case as well. The discussion
provided in the affidavit concerning each of the ordinary investigative techniques
comprises “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). The
government is not required to exhaust all conceivable investigative methods
before resorting to a wiretap. See Castillo-Garcia, 117 F.3d at1187-88. Mr. Diaz
did not overcome the presumption that the wiretap is proper.
Accordingly, the judgment of the district court is AFFIRMED.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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