Sunday, June 08, 2008

Case o' The Week: Title III Rivera is Wide, But Not Deep

Wiretap guru Judge Betty Fletcher (left) brings us a disappointing Title III decision this week in United States v. Rivera, __ F.3d __, 2008 WL 2229944 (9th Cir. June 2, 2008), decision available here.

Though we're not big fans of the opinion, we're huge fans of the Judge: here's hoping for a very speedy recovery.

Decision by Judge Betty Fletcher, joined by Judges Kleinfeld and Gould.

Facts: DEA agents in Washington investigated a Washington drug conspiracy for nineteen months, and developed a number of snitches. Id. at *1. The feds got three wiretaps, one of which was challenged in this appeal. The district court rejected Franks, necessity, and minimization challenges; appellants were convicted after plea or trial.

Issue(s): “Defendants argue that the government failed to show necessity for a wiretap on two telephones and failed to properly minimize the various wiretaps it used in its investigation of the conspiracy.” Id. at *1.

Held: 1. Franks: “[W]e conclude that the affidavit supporting the wiretap application contains a ‘full and complete statement’ as required by 18 USC § 2518(1)(c).”

2. Necessity: “While we agree with Defendants that the government could have – and perhaps should have – further utilized traditional investigative techniques before applying for the wiretap, we may not reverse simply because we might have decided not to grant the wiretap. We review the issuing court’s decision to grant the wiretap for an abuse of discretion . . . . and we conclude that the issuing court did not abuse its discretion here.” Id. at *8.

3. Minimization: “[W]e conclude that the DEA’s monitoring procedures and its training of the monitors did not fall sort of the requirements of 18 U.S.C. § 2518(5).” Id. at *11.

Of Note: Rivera offers no new rules or big principles for wiretap litigation. Instead, it is another hash mark in the spectrum of cases that will be used to gauge the legality of wiretaps. While a disappointing outcome, Rivera is an interesting read. The decision surveys the Ninth’s Title III litigation, discussing facts that have supported – or undermined – previous wiretaps.

Rivera’s author, Judge Betty Fletcher, is one of the Ninth’s (and the country’s) experts in the field: she also wrote the important decisions of Ippolito, 774 F.2d 1482 (9th Cir. 1985), and Blackmon, 273 F.3d 1204 (9th Cir. 2001). Notably, Fletcher’s colleagues on Rivera – Judges Kleinfeld and Gould – were also on the panel for the very good wiretap decision in Gonzalez, Inc., 412 F.3d 1102 (9th Cir. 2005) (authored by Judge D.W. Nelson). Interesting that a handful of judges have been so influential in wiretap jurisprudence.

How to Use: For better or worse, Rivera now becomes the first step for wiretap litigation. As noted above, the case analyzes the Ninth’s wiretap precedent (by the Judge who wrote half of the decisions in the field). Rivera is also a fairly exhaustive recap of wiretap challenges: Franks omissions as to the efficacy of traditional investigations, id. at *3-*4; physical surveillance, id. at *5, use of the grand jury, id. at *6, use of agents, trash runs, interviews, pen registers and trap-and-trace devices, id. at *6; GPS, id. at *7; and the scope of the goals central to a necessity challenge, id. at *7-*8.

Unfortunately, the case re-issues that horrible blank check from McGuire: a wiretap is “necessary” even when the main players are known, if the feds seek to learn the conspiracy’s suppliers, distributors, and other known and unknown members. Id. at *8. The only bright spot is the decision’s endorsement of financial investigation as a traditional investigation technique – a mild break from previous authority. Id. at *6.

For Further Reading: At the recent Defender’s conference in New Orleans, and at our upcoming CJA seminar, the brainy folks at the Electronic Frontier Foundation (EFF) are teaching us the terrifying ways that feds are crawling into our private lives through the use of new technologies and new authorizing statutes. See discussion here.

How about some legal ju-jitsu, in the Title III context? Why shouldn’t cell phone location tracking, e-mail subpoenas, net surveillance, triggerfish antennas, pen trap databases, and other new technologies be bundled in the “traditional investigative techniques” that undermine wiretap “necessity?” One gets a whiff of that in the brief GPS discussion in Rivera – this may be the next big step in wiretap litigation.

Image of Judge Betty Fletcher from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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