Saturday, September 22, 2018

Case o' The Week: Shotcaller Snitch but Feds "Need" Wire - Estrada and Necessity Showings for Title III Wiretaps

   “Necessity” is the mother of discretion.
United States v. Estrada, 2018 WL 4440367 (9th Cir. Sept. 18, 2018), decision available here.

Players: Decision by Judge N.R. Smith, joined by Judge Berzon and D.J. Castel, S.D. N.Y.

Facts: The FBI began an investigation of the “Westside Verdugo,” a street gang “subordinate to the Mexican Mafia.” Id. at *2. During the investigation (and before the wiretap), the FBI flipped Jonathan Brockus, a “shot-caller” in the organization. Id.
  Brockus identified the Mexican Mafia link who “taxed” the Verdugo’s, successfully participated in a controlled delivery to the Mexican Mafia contact, and let the Feds identify a high-level player. Id. The government successfully obtained a Title III wiretap, with an affidavit that discounted Brockus’ value. Id.
  After that initial tap, and before a re-up, Brockus gave information regarding a homicide: that interview wasn’t reported in the wiretap re-up at *3. Id.
  After the wiretap was over, Brockus was interviewed again, gave helpful information, and was a grand jury witness. Id. at *4. Among other challenges, the ultimate defendants in the case moved to suppress the results of the wiretap, claiming that the Title III applications had not established “necessity” under the authorizing statute. Id.
   That motion was denied, and defendants entered a conditional plea preserving their Title III challenge for appeal (needless to say, this case did not come out of the N.D. Cal). Id. at *4.

Issue(s): “Defendants argue that Brockus was in a unique position to ‘penetrate and dismantle’ the conspiracy because he was essentially a ringleader, and that his prior cooperation showed that he was willing and able to cooperate with law enforcement.” Id. at *6 (footnote omitted).

Held:We affirm the district court’s order denying Defendants’ motion to suppress.” Id. at *1. “We . . . disagree with Defendants’ argument that the district court abused its discretion in determining that the wiretaps were necessary.” Id. at *5. 
  “Because confidential informants may not be believed by a jury, . . . . the testimony of a confidential informant (without significant corroborating evidence) often will not produce an effective case. The district court did not abuse its discretion in drawing that conclusion based on the specific facts presented in the affidavits.” Id. at *8.

Of Note: Habeas counsel fighting claims under AEDPA have the first claim to complain about their controlling body of law. 
  The stalwart attorneys who challenge Title III taps, however, are a close second. 
  In Estrada, the Feds nailed the gang’s Tony Soprano: the self-admitted “shot-caller.” This boss-snitch flipped early in the case, successfully set up a controlled drug sale with a heavy in another gang, coughed up a name in a homicide, gave information “helpful to the investigation” and testified before the grand jury. Yet the Ninth still upheld the “necessity” of this wiretap. 
  Is a wiretap per se “necessary" under  § 2518(1)(b) and (3)(c), if the case involves a RICO investigation? After Estrada, it is tough to glean what Title III’s statutory “necessity” requirement actually entails.

How to Use: In Estrada, Judge N.R. Smith spills much ink explaining how unreliable snitches are. See id. at *7. And this particular informant, the Court emphasizes, gave the FBI some grief. Brockus allegedly tried to shake surveillance, withheld information from his handlers, and was generally squirrelly, according to the FBI affiant. Id. 
  (Query: Did the AUSA reveal all of this Brady / Giglio information on this snitch to the victims of Brockus’ cooperation, before their pleas? Interesting Cal. R. Prof. Conduct 5-110 question). 
   Future Title III necessity challenges should cabin Estrada's necessity holding to its own “bad snitch” facts. This is particularly true because the Ninth emphasizes that it is merely finding no abuse of discretion in this case. (Significantly, the Court makes a point to express "no opinion on whether the government was conclusively entitled to a wiretap based on the facts in the affidavit.”) Id. at *8 & n.9.  
For Further Reading: In 2017, 37 wiretaps were authorized in the Northern District of California.
  Over 40% were authorized in San Jose, the District’s smallest venue.
  In 2017, over 21% of the entire District’s taps were authorized by a single San Jose judge. 

Uncle Sam is listening, in the Northern’s Southern climes. See 2017 Wiretap report here

Image of Westside Verdugo mural from

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



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