United States v. Garcia

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 16 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 98-1334
JOHNNY RAY GARCIA,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 97-CR-197-D)

Brian K. Holland, Holland, Kaplan & Pagliuca, P.C., Denver, Colorado for
Defendant-Appellant.

John M. Hutchins, Assistant United States Attorney (Thomas L. Strickland,
United States Attorney, and Stephanie P. Podolak, Assistant United States
Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before EBEL, PORFILIO, and MAGILL, * Circuit Judges.

EBEL, Circuit Judge.

*
Honorable Frank J. Magill, Senior Circuit Judge, United States Court of
Appeals for the Eighth Circuit, sitting by designation.
 Appellant Johnny Ray Garcia appeals the district court’s denial of his

motion to suppress evidence obtained through two court-ordered wiretaps.

Specifically, Appellant contends the district court erred in finding that the

wiretaps were necessary and were appropriately minimized as required by 18

U.S.C. § 2518(1)(c), (3)(c), (5) (1994 & Supp. 1999). For the reasons stated

below, we AFFIRM.

BACKGROUND

In 1996, members of the FBI’s Metro Gang Task Force (“MGTF”) were

investigating suspected gang-related drug activity in Denver, Colorado.

Specifically, MGTF was investigating members of the West Side Ballerz Posse

(“WSBP”), whom it suspected were selling controlled substances and engaging in

gang-related violence. As part of this investigation, a series of wiretaps were

authorized in late 1996 against suspected members of this drug conspiracy. On

March 12, 1997, United States District Judge John L. Kane authorized a wiretap

against a telephone used by Michael Vasquez. It was suspected that Vasquez was

a member of the WSBP and involved in illegal drug dealing. This wiretap

(hereinafter the “Vasquez wiretap”) revealed that Vasquez was engaging in drug

transactions with John Chavez, Jr. (“Chavez”), the alleged leader of the WSBP.

Soon thereafter, the government filed an application for wiretaps against

two telephones believed to be used by Chavez in his drug dealing. “Subject

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Telephone One” was a cellular telephone using the number (303) 887-5533.

“Subject Telephone Two” was a landline telephone using the number (303)

255-2064. In support of the application, the government submitted a lengthy

affidavit from FBI Special Agent Kurt A. Remus detailing the nature of the

investigation to date and the need for the requested wiretaps. Judge Kane

authorized the wiretaps (hereinafter the “Chavez wiretaps”) on April 8, 1997.

During the course of the Chavez wiretaps, law enforcement officers

collected incriminating information against Appellant. Appellant moved to

suppress the evidence gathered via the Chavez wiretap. The district court held a

hearing on the matter and denied Appellant’s motion to suppress. Appellant

subsequently pleaded guilty to Use of a Communications Facility, a Telephone, to

Facilitate Conspiracy to Possess with Intent to Distribute Methamphetamine in

violation of 21 U.S.C. §§ 843(b) & (d), 841(a)(1), 846. Pursuant to the plea

agreement, Appellant reserved the right to challenge the district court’s denial of

his motion to suppress, which he now appeals.

DISCUSSION

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as

amended, lays out a strict framework for authorizing electronic eavesdropping by

law enforcement officials. See 18 U.S.C. §§ 2510-2522 (1994 & Supp. 1996).

First, a law enforcement officer must obtain approval from the Attorney General

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of the United States or her designee to seek the appropriate order from a federal

judge. See 18 U.S.C. § 2516(1) (Supp. 1999). Second, the officer must submit

to the judge a written application for the wiretap. See 18 U.S.C. § 2518(1) (Supp.

1999). Third, the judge must issue an ex parte order granting the application and

making specific supporting findings. See 18 U.S.C. § 2518(3); United States v.

Castillo-Garcia, 117 F.3d 1179, 1184-85 (10th Cir. 1997).

One of the findings a judge must make when authorizing a wiretap is 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) (1994). In our cases, this is known as the “necessity” requirement.

See Castillo-Garcia, 117 F.3d at 1185. The statute additionally requires that

“[e]very [wiretap] order . . . shall contain a provision that the authorization to

intercept . . . shall be conducted in such a way as to minimize the interception of

communications not otherwise subject to interception under this chapter.” 18

U.S.C. § 2518(5) (Supp. 1999). It is thus required that law enforcement agents

conducting the wiretap intercepts “minimize” the intrusion into otherwise lawful

communications. In the present case, Appellant contests both the necessity and

minimization of the wiretaps leading to his arrest and subsequent conviction.

“On appeal from a motion to suppress evidence obtained pursuant to a

wiretap, we accept the district court’s factual findings unless clearly erroneous,

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review questions of law de novo, and view the evidence in the light most

favorable to the prevailing party.” Castillo-Garcia, 117 F.3d at 1186. We note

that there is a conflict of authority in this circuit regarding the appropriate

standard of review to apply to a district court’s determination that a wiretap

application satisfies the necessity requirement. Compare Castillo-Garcia, 117

F.3d at 1186 (“The question of whether the government demonstrated sufficient

‘necessity’ under 18 U.S.C. § 2518(1)(c) (1994) to support the issuance of a

wiretapping order is a question of law which we review de novo.”), with United

States v. Armendariz, 922 F.2d 602, 608 (10th Cir. 1990) (“[W]e review the

conclusion that the wiretap was necessary in each situation for an abuse of

discretion.”) (alterations omitted). It is not necessary to resolve this issue in the

present case, however, because we would reach the same result under either

standard of review.

I. Necessity

In Castillo-Garcia, we laid out the criteria for determining whether the

necessity requirement was satisfied:

To obtain an electronic surveillance order, the government must
explain fully in its application what investigative techniques have
been tried against the target of the wiretap. 18 U.S.C. §§ 2518(1)(c),
2518(3)(c) (1994). If any of the four categories of normal
investigative techniques referred to in the legislative history of Title
III 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:

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 (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 similar explanation must be offered as to why they also
would be unsuccessful or too dangerous.

Castillo-Garcia, 117 F.3d at 1187. We further stated that “it is not necessary for

the government formally to address each category with an explanation . . . if it is

clear, under the government’s recitation of the facts of the case, that requiring the

government to attempt the unexhausted and unexplained normal investigative

techniques would be unreasonable.” Id. at 1188. This approach is consistent with

our adherence “to Congress’s intention that the government’s demonstration of

the necessity for instituting a wiretap be evaluated in a practical and

commonsense fashion.” Id. at 1187 n.5.

With these standards in mind, we analyze the applications for the wiretaps

at issue in this case.

(1) Visual and Aural Surveillance

The affidavit supporting the wiretaps indicated that some surveillance had

been attempted, but that further surveillance would be difficult, would potentially

compromise the investigation, and would likely be ineffective at identifying

Chavez’s drug suppliers. The affidavit stated that Officer Adam Fuller of the

Adams County Sheriff’s Office had conducted physical surveillance of the WSBP

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for three years. The affidavit further stated that Officer Fuller was able to

identify many members of the WSBP through surveillance, but that “many of the

known residences and businesses connected to the WSBP are extremely difficult

to conduct surveillance on.” Officer Fuller also indicated to the affiant that “it is

not possible to determine the full nature and scope of the . . . offenses by the use

of physical surveillance.” The affiant concluded that although “[s]urveillance has

been used to stop and identify possible unnamed co-conspirators . . . continued

use of this tactic could compromise the investigation.”

In light of these statements, we conclude that the officers had attempted to

investigate the WSBP and Chavez through traditional surveillance techniques, but

that further reliance on this tactic would likely be unsuccessful. As described in

the supporting affidavit, it was clear that Chavez conducted a great deal of his

drug transactions via telephone, thus placing limits on the effectiveness of less

intrusive methods of investigation. While use of telephones to conduct criminal

activity does not necessarily warrant a wiretap, in this case evidence against the

upper echelon of the WSBP and against Chavez’s suppliers could not have

reasonably been obtained via traditional forms of surveillance.

(2) Questioning and Interrogation of Witnesses and Participants

The supporting affidavit indicates that witnesses and participants to the

suspected drug transactions were interviewed prior to seeking the Chavez

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wiretaps, but that further use of this investigative technique would not be

effective to reveal the full scope of the conspiracy. In fact, the affidavit indicated

that questioning individuals involved with the WSBP might actually be

counterproductive with respect to uncovering the source of the drugs sold by

Chavez. Soon after the government interviewed a co-conspirator, Chavez

suspected that co-conspirator was cooperating and he “changed his pager and

cellular telephone number[s] immediately, causing a three (3) month delay in the

current investigation.” In addition, another co-conspirator indicated to Officer

Fuller that he would not cooperate with investigators unless Chavez and his

organization had been formally indicted. Similarly, another suspected member of

the WSBP, although initially indicating a willingness to cooperate, ultimately

refused to do so and was a fugitive at the time the affidavit was submitted.

Finally, the affidavit asserts that use of the grand jury to compel witnesses to

testify would alert unknown co-conspirators and thus unduly limit the scope and

effectiveness of the investigation.

We find that these statements, viewed in the context of the investigation

into this conspiracy, indicate that the law enforcement officers had reasonably

attempted to use witness and participant testimony to gather evidence against

Chavez. It is clear, however, that these interviews did not enable the officers to

identify the source from which Chavez obtained the drugs. Moreover, use of the

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grand jury would likely have alerted Chavez and his suppliers to the investigation,

thus limiting its effectiveness. The investigators had attempted to contact and

secure the cooperation of witnesses and participants prior to seeking the Chavez

wiretaps, but these traditional techniques were not sufficient to fully disclose the

conspiracy.

(3) Search Warrants

The affidavit states that at least two search warrants had been executed in

this investigation, but that these efforts “failed to produce enough evidence to

successfully prosecute Chavez and his organization.” The affidavit also indicates

that further search warrants would not reveal the full extent of Chavez’s activities

or his suppliers. We agree that the conspiracy described in the affidavit could not

be fully investigated through the use of search warrants.

Investigators were particularly concerned with identifying Chavez’s source

for drugs, but it seems unlikely that physical evidence seized would reveal this

information. Moreover, execution of additional warrants against Chavez or his

confederates might have alerted unknown co-conspirators to the investigation and

allowed them to avoid capture. On the facts of this case, where the investigation

targeted the upper echelon of the conspiracy and sought to identify the ultimate

source for the drugs, additional search warrants would likely have been

ineffective.

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(4) Infiltration and Use of Informants

It is clear that the investigators repeatedly used confidential informants to

gather information on Chavez and the WSBP but were unable to gather sufficient

evidence through this technique to prosecute Chavez and identify his suppliers.

Multiple confidential informants were used to uncover the basic framework and

participants of the conspiracy, but this information was insufficient to fully reveal

its innermost workings. Specifically, the affidavit stated that “[n]one of the

confidential sources have been able, themselves, to obtain information regarding

John A. Chavez, Jr.’s current drug suppliers[, and c]onfidential sources have been

unable to introduce undercover agents into Chavez [due] to the close nature of the

WSBP.” Moreover, one of the confidential informants ceased cooperating with

law enforcement officers.

We agree that further use of confidential informants would likely prove

ineffective in discovering the full scope of the conspiracy. The affidavit

describes the WSBP as a “close” organization, and the knowledge of the

confidential sources as limited. The assistance of confidential informants was

also limited by their “unwillingness to testify against Chavez and his organization

because they fear for themselves and their families the possibility of retribution

by Chavez and the WSBP.” We conclude the law enforcement officers had made

reasonable attempts to use informants, but that further use of this technique or

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attempts to infiltrate the organization would be ineffective and potentially

dangerous.

(5) Pen Registers and Trap and Trace Devices

The affidavit indicates that pen registers were employed and indicated that

the telephones to be tapped were frequently used to contact known participants in

the conspiracy. There were multiple and repeated calls from the subject telephone

numbers to numerous people who had ties to the criminal activity under

investigation. However, the knowledge that these calls took place does not

indicate the nature or scope of any criminal activity, and thus this data was

insufficient to complete the investigation. In fact, the pen register data

highlighted the extent to which the co-conspirators relied on telephone

communications to conduct their drug trade, further demonstrating the need for

the wiretaps.

In sum, it appears from the affidavit that law enforcement officers did

attempt all five categories of traditional investigative techniques before seeking

the Chavez wiretaps. Appellant contends, however, that these activities had all

been completed more than forty-five days before the preceding wiretap (the

Vasquez wiretap) had been obtained. Although we have held that the government

may not “move swiftly from wiretap to wiretap,” Castillo-Garcia, 117 F.3d at

1196, the government is not necessarily under an obligation to repeat these forms

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of investigation between each wiretap. “Rather, under Title III, it must . . . pause

to consider whether normal investigative procedures could be used effectively,

particularly in light of any evidence obtained as a result of each succeeding

wiretap.” Id. (alteration and internal quotation marks omitted).

We conclude the affidavit in support of the Chavez wiretaps indicates that

the government did appropriately pause before seeking the wiretaps. Even though

many of the same facts were previously offered in support of the Vasquez

wiretap, it is apparent that the nature of the investigation had not substantially

changed in the intervening time period. Chavez was still suspected to be the head

of the conspiracy, but the extent of his dealings and the source from which he

obtained the drugs remained unknown. Perhaps most significantly, the fact that

Chavez was the highest known participant in the conspiracy made it difficult to

collect information on him and his suppliers from lower-level members. Indeed,

the affidavit explains that recordings from the Vasquez wiretap “show Chavez’s

capacity to sell cocaine, [but] they do not identify Chavez’s supplier.” Thus, the

preceding wiretaps did not obviate the need for the Chavez wiretaps, nor were

there new circumstances or events suggesting that the law enforcement officers

should have retried traditional investigative techniques.

Our analysis must be guided by common sense, which clearly indicates that

the Chavez wiretaps were necessary under these circumstances. The affidavit

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explained both how traditional investigative procedures had been attempted and

how further reliance on these means would be unhelpful or even

counterproductive. Thus, under the facts of this case, we conclude that the

Chavez wiretaps were necessary to reveal the full scope of the conspiracy and to

identify Chavez’s suppliers.

II. Minimization

Appellant also contends that six of the eighteen calls intercepted under the

Chavez wiretaps and pertaining to Appellant were not minimized in accordance

with 18 U.S.C. § 2518(5). “The Supreme Court has held that this provision does

not create an ‘inflexible rule of law,’ but rather demands an evaluation of the

‘facts and circumstances of each case.’” United States v. Killingsworth, 117 F.3d

1159, 1165 (10th Cir. 1997) (quoting Scott v. United States, 436 U.S. 128, 139-

40, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978)). Moreover, “‘more widespread

surveillance’ is justified when the wiretap is targeted toward what is thought to be

a widespread conspiracy.” Id. at 1165-66. In light of these standards, we

analyze the disputed interceptions.

(1) Call 44

The district court found that this call contained coded references to

quantities of marijuana. Appellant has offered no evidence disputing this factual

determination. Rather, Appellant contends that the interception should have been

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terminated before these comments were made. The district court found, however,

that the length of the call “was extended by an initial pause as well as a period of

time during which the call was placed on hold.” Appellant does not dispute this

finding, which is supported by our review the record. The length of the call alone

does not render the interception improper. We therefore conclude that, under

these circumstances, it was appropriate to continue the recording while the call

was delayed and put on hold. Accordingly, the interception had not continued too

long before the discussion of criminal activity was recorded. 1

(2) Call 770

The district court found that this call was minimized three times by the

monitor, and that the portions recorded “include[d] graphic and detailed accounts

of a serious assault, which, the Court finds, [are] criminal in nature.” Appellant

offers no evidence indicating that these findings are clearly erroneous, and our

review of the transcript supports the district court’s conclusions. The wiretap

required minimization “unless it is determined during the portion of the

conversation already overheard that the conversation is criminal in nature.” Call

1
The tapes containing these calls were played at the March 12, 1998,
suppression hearing in the district court. Our review of the transcript of this
hearing, in which five of the six recordings are transcribed, reveals that the
recorded conversation in Call 44 (not including the time on hold) was relatively
brief. (The tape of Call 1378 was not played at the hearing, but a government
agent did read portions of the transcript.)

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770 clearly pertained to criminal activity, i.e., assault, and thus it was proper for

the officers to continue recording.

(3) Call 774

The district court found that this call was “twice minimized even though it

involved a named interceptee (John Chavez, Jr.) as well as references to selling

drugs (‘win some cash’) and assaultive conduct.” The district court further found

that the call contained “two references to gang membership which was highly

relevant to the government’s instant investigation.” Although Appellant notes

that the agent who testified at the suppression hearing admitted that it was

possible that “win[ning] some cash” referred to legal gambling, Appellant offers

no reason why the district court’s conclusion that the statement in fact referred to

illegal activity was erroneous. Our review of the hearing transcript supports the

district court’s conclusion. Moreover, the overwhelming majority of the recorded

conversation was in regard to assaultive conduct, which is criminal in nature and

may therefore be lawfully intercepted. Accordingly, this call was properly

recorded.

(4) Call 1378

The district court found that this call contained “references to shooting at

individuals and purchasing additional firearms using the proceeds from the sale of

drugs.” Appellant does not dispute the substance of these references, rather he

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contends that they were not pertinent to the investigation and should therefore

have been minimized. As we have explained above, however, the wiretap

authorized agents to continue recording where it was evident that criminal activity

was being discussed and, in any event, there is reason to believe that all the

criminal conduct discussed was related. These statements were properly

intercepted. Moreover, the district court found that the call also referenced

“‘dudes’ from El Paso,” and that it was suspected that the WSBP obtained drugs

from a source in El Paso, Texas. Thus, this conversation clearly pertained to

criminal activity and was therefore properly intercepted.

(5) Call 1400

The district court concluded that “the call involved mention of weapons and

assaultive behavior.” Our review of the transcript supports this conclusion. The

bulk of the conversation relates to gang violence, and when the conversation

shifted to another subject matter, the call was minimized. The district court’s

findings were not erroneous, and, because the conversation pertained to criminal

activity, the conversation was properly recorded.

(6) Call 1632

The district court concluded that this call contained references to gang

violence and selling narcotics. Our review of the transcript confirms this

conclusion. Appellant discussed entering a rival gang’s hangout, to which

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Chavez replied that “[we] [s]hould blow that place up.” Later in the conversation,

Appellant stated he needed to “make some cash to get rolling,” which the

government agent testified referred to selling narcotics. Thus, the district court’s

findings were not erroneous. Because the conversation pertained to criminal

activity, it was properly recorded.

In sum, we conclude that these interceptions do not violate 18 U.S.C.

§ 2518(5). All of the calls directly reference criminal activity or other matters

relevant to the government’s investigation. Accordingly, they are within the

scope of the district court’s authorization and permissible under § 2518(5).

CONCLUSION

We find no error in the district court’s determination that the Chavez

wiretaps satisfied the necessity and minimization requirements. Accordingly, the

judgment of the district court is AFFIRMED.

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