Case o' The Week: Silver clouds and black linings - Rodriguez and Review of Title III Wiretap Applications and Orders
The good news? The Ninth imposes a new (and higher) two-step standard on the district courts, when reviewing Title III wiretap applications and orders.
United States v. Rodriguez, 2017 WL 971809 (9th Cir. Mar. 14, 2017), decision available here.
Players: Decision by visiting D.C. District Judge Friedman, joined by Judges Paez and Tashima.
Facts: Several district judges granted wiretap orders targeting Rodriguez and an alleged Mexican Mafia drug conspiracy.
Drug charges were eventually filed in the court of the third, presiding district judge. The third DJ reviewed the entire wiretap motion using only the (deferential) abuse of discretion standard, then denied the motion. Id. at *4.
The government filed an § 851 prior. Id. at *8-*9. Rodriguez was convicted after a trial and was sentenced to 600 months. Id. at *1.
Issue(s): “[Rodriguez] argues that the district court erred because it applied the incorrect standard of review when deciding his motion to suppress and that the government's wiretap application did not include a full and complete statement of facts as required by 18 U.S.C. § 2518(1)(c).” Id. at *1.
“[ ] Rodriguez argues that the district court erred by deciding his motion to suppress under an abuse of discretion standard and improperly deferring to the issuing judge, rather than conducting its own independent review of whether the wiretap affidavits contained a full and complete statement of facts sufficient to satisfy 18 U.S.C. § 2518(1)(c).” Id. at *3.
Held: “When we review a district court’s decision on a motion to suppress wiretap evidence, we determine de novo whether the information in an affiant’s application for a wiretap amounts to ‘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. . . . If the wiretap application meets the requirements of § 2518(1)(c), then the Court reviews for abuse of discretion the issuing court’s finding that the wiretap was necessary under § 2518(3)(c) and its decision to grant the wiretap.” Id. at *3.
“We conclude that district courts should apply the Ninth Circuit’s two-step approach when considering a motion to suppress wiretap evidence. Therefore, a reviewing district court judge must review de novo whether the application for a wiretap contains 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 . . . . If the wiretap application meets these requirements . . ., then the district court judge should review for abuse of discretion the issuing judge’s conclusion that the wiretap was necessary.” Id. at *4 (internal quotations and citations omitted).
Of Note: The good news is that Rodriguez’s two-step process is a far better approach than the more deferential review often applied by district courts. Moreover, the Ninth questions the lack of meaningful factual review below, and the DJ's improper deference to the “half century of judicial experience” of the judges who issued the Title III orders. Id. at *4.
The bad news is that the Ninth doesn’t remand. Instead, the Court applies this two-step approach and mows down a variety of wiretap factual challenges: failure to disclose a search condition in the application, boilerplate language, and a brief surveillance period before wiretaps were sought. Id. at *5-*9.
For better or worse, Rodriguez’s mixed bag is now must-read before tackling a Title III challenge in the Ninth.
How to Use: Section 851 of Title 21 sets forth a detailed procedure for alleging priors triggering mand-mins in a drug case. In a very rare outcome, the Ninth reverses and remands because Rodriguez’s § 851 hearing was botched. Id. at *12.
Judge Friedman gives a detailed description of the requirements for alleging a prior, what has to happen during the § 851 hearing, and the failure to meet the statutory requirements here.
As we ponder a future with more of these miserable § 851 proceedings, Rodriguez is a good place to start.
For Further Reading: Four years ago, NorCal’s own Josh Cohen asked if Title III was dead after the Rajaratnam white collar wiretap. See Josh A. Cohen, Is Title III Dead? The Future of Wiretap Challenges in the Wake of Rajaratnam, The Champion, available here.
Interesting to mull this helpful article again in light of Rodriguez, and query how Josh’s call for a “collective prayer – for individuals’ privacy” is being answered.
For defense bar Norteños, this is a particularly pressing question. In the last several years, the Northern District of California has had an extraordinary wiretap boom (clustered largely in Oakland). See “For Further Reading” here.
The Administrative Office of the U.S. Courts reports wiretap data in July: check back this summer to see if the Feds’ eavesdropping addiction continues unabated. See AO stat link here.
Image of Uncle Sam wiretap cartoon from http://counter-surveillance-devices.com/wp-content/uploads/2009/06/uncle_sam_wiretap.jpg
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org