Sunday, September 10, 2017

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 AUSA Ryan Bounds from 

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


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