Case o' The Week: Title III for Parolee - Gutierrez and Necessity Showings in Title III Wiretaps

 Necessity is the Mother of Invention (and the absent, Deadbeat Dad of Title III).

United States v. Jesus Barragan, 2017 U.S. App. LEXIS 17388 (9th Cir. September 8, 2107), decision available here.

Players: Decision by Judge Hurwitz, joined by Judge Bea and visiting First Circuit Judge Lipez.  

Facts: Feds obtained a Title III order, tapped, then charged Mexican Mafia members in a RICO case. Id. at *6. One defendant was “Bullet” Gutierrez. Id. 

  When the RICO investigation began, Gutierrez was in custody. Id. The wiretap sought interception of Gutierrez despite the fact that he was then on parole – and was already monitored – during the tap. Id. at *15-*16. The fact that Gutierrez was on parole, and was monitored, was omitted from the wiretap affidavit. 

  “Gutierrez moved to suppress the wiretap evidence and for a hearing pursuant to Franks . . . , on whether [the requesting agent’s] affidavit was materially misleading.” Id. at *13. The Title III challenge was denied. Id.

Issue(s): “Gutierrez argues that (1) suppression was required because the affidavit failed to show that a wiretap was necessary, and (2) a Franks hearing was required because the affidavit contained false information.” Id. at *12-*13.

Held: “[Re: necessity]: Overall, the [agent’s] affidavit explained in reasonable detail why traditional investigative procedures had reached their limit.” Id. at *15. [T]he fact that Gutierrez knew that he was being monitored suggests, if anything, that he would have been more discreet in communicating with conspirators, reinforcing the need for a wiretap.” Id. “The fact that the task force had some degree of success without a wiretap did not extinguish the need for a wiretap.” Id. at *16. 

  “Although the affidavit omitted the fact that Gutierrez was subject to monitoring as a condition of his parole, the district court would still have been reasonable to find the wiretap necessary had this fact been included.” Id. at *17 (internal quotations and citations omitted in all quoted language above).  

Of Note: Those who fight to protect the privacy interests guaranteed by Title III limitations will find Barragan disheartening. The agent/affiant who sought the wiretap omitted an important fact in the necessity showing of his affidavit: Gutierrez was on active parole, subject to the monitoring provisions associated with California parole, and could have been stopped, searched, and otherwise generally harassed by law enforcement (effectively at will). 

  Under traditional Title III analysis, omission of that important fact would be a Franks error, that undermined the “necessity” showing for the wire. (Whether the omission of that fact was fatal to the necessity showing is a different subject -- that would normally be the heart of the appellate analysis).

   But in Barragan, the Ninth oddly speculates that Gutierrez’s monitoring on parole supported the need for a wire. Id. at *16. The logic is hard to reconcile with Title III’s necessity requirements: is the Ninth saying that when law enforcement has more tools to investigate a suspect (like parole monitoring conditions), a wiretap is more necessary because the suspect will be more circumspect?

  There is no citation for this new correlation, and with no Franks evidentiary hearing in the case, there are no facts supporting this assumption. A discussion in Barragan that will haunt future Title III necessity litigation.

How to Use: Judge Hurwitz couches his musings on parole monitoring with the caveat that it “suggests, if anything, that [Gutierrez] would have been more discrete.” Id. at *15-*16 (emphasis added). The Court goes on, however, to conclude that it would not have been fatal to the affidavit, given the agent’s detailed discussion of other investigative techniques. Id. at *16.

  Read fairly, this “parole monitoring” discussion is, at most, unfortunate dicta: fight this issue in future Title III litigation.

                                               

For Further Reading: President Trump’s first Ninth Circuit nominee is Assistant United States Attorney Ryan Bounds, of Oregon. See Press Release here. 

D. Oregon AUSA Ryan Bounds

  Last week Oregon Senators Jeff Merkley and Ron Wyden wrote to the President. The Senators explained they do not intend to return blue slips supporting this nomination. See letter here. 

  It is notable that the first Ninth Circuit nominee that the President seeks to send to the Senate would arrive sans blue slips. 
  Battles between the branches loom.

Image of Wiretapping poster from http://www.emergentchaos.com/images/09/feb/wiretap%20america.jpg

Image of AUSA Ryan Bounds from http://www.metnews.com/articles/2017/bounds090817.htm 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org.

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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.

  (The bad news? The Ninth finds the government meets that standard, here).

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

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Case o' Week: Heard it through the Grapevine - Carey and "Plain Hearing" in Title III Wiretaps

DEA, FBI, Title III, tap wrong guy.

Suppress?

Deny.

United States v. Carey, 2016 WL 4651408 (9th Cir. Sept. 7, 2016), decision available here. 

 

Players:  Decision by Judge Gould, joined by Judge W. Fletcher. Dissent by Judge Kozinski.

Facts: Feds got a Title III order to tap a suspected drug dealer, Escamilla. Id. at *1. They listened to calls on the target line for seven days, and at some point (not clear when) they realized the target, Escamilla, wasn’t using this line. Id. 

 After consulting with AUSAs, id. at *2, agents continued listening. Id. at *1. 

  Based on these intercepted calls, Carey was eventually indicted for a conspiracy to distribute cocaine. Id. Carey’s motion to dismiss was denied. Id.

Issue(s): “Carey moved to suppress the evidence obtained from the wiretaps, arguing that the government violated the Wiretap Act by never applying for a wiretap as to him or his coconspirators.” Id. “In Carey’s view, the government instead had unlawfully relied on the validity of the Escamilla order to justify the independent and unrelated use of wiretap surveillance against Mr. Carey.” Id. at *2. “Here the government showed [Title III] necessity and probable cause for a wiretap of the target conspiracy. But what happens when a wiretap that is valid at its inception is later used to listen to someone who is not involved in the conspiracy under surveillance? It is that novel question to which we turn our attention.” Id. at *4. “The question here is whether the government could use that valid wiretap to listen to unrelated people’s phone calls . . .” Id. at *5.

Held: “The Fourth Amendment provides an exception to the warrant or probable cause requirement when police see contraband in ‘plain view.’ We adopt a similar principle today and hold that the police may use evidence obtained in “plain hearing” when they overhear speakers unrelated to the target conspiracy while listening to a valid wiretap, without having complied with the Wiretap Act requirements of probable cause and necessity as to those specific speakers. However, the agents must discontinue monitoring the wiretap once they know or reasonably should know that the phone calls only involved speakers outside the target conspiracy.” Id. at *1.  

“The district court did not apply these principles, and the record in this case does not show exactly when agents knew or should have known that the phone conversations did not involve Escamilla and his coconspirators. We vacate the . . . denial of Carey's motion to suppress and remand to the district court on an open record to determine what evidence was lawfully obtained in ‘plain hearing.’” Id. at *2.  

“[O]nce the officers know or should know they are listening to conversations outside the scope of the wiretap order, they must discontinue monitoring the wiretap until they secure a new wiretap order, if possible.” Id. at *6.

Of Note: Brief opinion, big new rules. 

  In a holding of first impression aggravating to the defense, Judge Gould holds that the Fourth Amendment “plain view” exception expands to “plain hearing” in a Title III wiretap. 

   In a holding of first impression aggravating to the government, Judge Gould limits that exception by requiring agents to stop listening once they realize the Title III target isn’t on the line. 

  Where’s the next round of litigation? Whether the inevitable downstream Title III application will have adequate necessity and probable cause showings to justify the tapping order of the schmo unlucky enough to have the original target’s number.

How to Use: The government groused that the original order allowed the use of communications relating to “other crimes.” Id. at *5. Carey agrees – but helpfully observes that the order limited collateral intercepts to when feds listened in a manner authorized by the order. Id. A useful (albeit obvious) principle and a good cite when fighting Title III taps: wiretap orders do have internal limits, and those limits must be respected.   

                                               

For Further Reading: From 2007 through 2015, NorCal district judges have ordered 35 (non-terrorism) wiretaps that have been terminated. A whopping 45% of the wiretap applications granted over these 8 years clustered in 2015 alone. ("Smart on Crime" means Feds on line.)

  Of particular East Bay interest, 68% of the 2015 wiretap orders were signed by Oakland DJs. All of these taps, by the way, were narcotic cases.

   In 15 of the 16 wiretaps initiated in 2015 there is “no prosecutor report.” 

  Curious what the Feds are up to in your own district? Hit this fascinating site.

Image of Uncle Sam and pay phone from https://www.wired.com/images_blogs/threatlevel/2013/06/wiretap.jpg

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

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