United States v. Mitchell ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-1366
ROBERT MITCHELL, III,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v. No. 00-1520
LAWRENCE JOHN SPOSATO,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-1521
RICHARD ANDRADA,
Defendant-Appellant.
ORDER
Filed December 11, 2001
Before BRISCOE, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
ANDERSON, Senior Circuit Judge.
The order and judgment dated October 23, 2001, shall be published. A
copy of the published opinion is attached.
Entered for the Court
PATRICK FISHER, Clerk of Court
by:
Jane B. Howell
Chief Deputy Clerk
2
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 23 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-1366
ROBERT MITCHELL, III,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-1520
LAWRENCE JOHN SPOSATO,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 00-1521
RICHARD ANDRADA,
Defendant-Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
D.C. 99-CR-232-S
Barry A. Schwartz, of the Law Office of John Henry Schlie and Barry A.
Schwartz, P.C., Denver, Colorado, for Defendant - Appellant Robert Mitchell, III.
Walter L. Gerash of Walter Gerash Law Firm, Denver, Colorado, for Defendant -
Appellant Lawrence John Sposato.
E. Richard Toray of Gerash, Prugh & Gerash, L.L.C., Denver, Colorado, for
Defendant - Appellant Richard Andrada.
James C. Murphy, Assistant United States Attorney (Richard T. Spriggs, United
States Attorney and H. Wayne Campbell, Assistant United States Attorney, with
him on the brief) Denver, Colorado, for the Plaintiff - Appellee.
Before BRISCOE, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
ANDERSON, Senior Circuit Judge.
McWILLIAMS, Senior Circuit Judge.
On July 15, 1999, an indictment was filed in the United States District
Court for the District of Colorado naming Robert Mitchell, III (“Mitchell”),
Lawrence John Sposato (“Sposato”), Richard Andrada (“Andrada”) and six others
as defendants (we are not here concerned with the other defendants). In Count 1,
all defendants were charged with conspiring to distribute a controlled substance in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. In Count 2, Mitchell was
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charged with possession of a controlled substance with an intent to distribute in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). In Count 3, Mitchell was charged
with using a telephone in facilitating the distribution of a controlled substance in
violation of 21 U.S.C. § 843(b). In Count 7, Sposato was charged with using a
telephone in facilitating the distribution of a controlled substance in violation of
21 U.S.C. § 843(b). In Count 11, Andrada was charged with using a telephone in
facilitating the distribution of a controlled substance in violation of 21 U.S.C. §
843(b). In Count 12, Andrada was charged with possessing a controlled
substance in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C).
On February 18, 2000, Sposato filed a motion to suppress the use at trial of
evidence obtained by means of three wiretaps, which taps will be referred to as
WT-5, WT-6, and the extension order of WT-6. Thereafter Andrada, Mitchell,
and others filed similar motions to suppress, with some defendants joining in the
motion to suppress filed by other defendants.
On May 5, 2000, the district court held a hearing on all motions to
suppress, at which time FBI Special Agent Andrew Guthrie was examined briefly
upon direct examination, but cross-examined at considerable length by various
defense counsel. It was Agent Guthrie’s affidavits which formed the basis for
WT-5, which was issued on May 20, 1998, WT-6, which was issued on July 1,
1998, and the extension order of WT-6 issued on July 31, 1998. On May 26,
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2000, Judge Daniel B. Sparr in a 26-page memorandum and order denied all
motions to suppress.
On June 27, 2000, Mitchell entered into a plea agreement with the United
States whereby he was allowed to enter a plea of guilty to Count 3 of the
indictment, namely the unlawful use of a communication facility, and the
government, in turn, withdrew the other charges against Mitchell, namely Counts
1 and 2. Mitchell’s plea of guilty was conditional and entered pursuant to
Fed.R.Crim.P. 11(a)(2). On September 6, 2000, Mitchell was sentenced to five
years of probation. On August 1, 2000, Andrada entered a conditional plea of
guilty to Count 1 of the indictment, namely conspiracy, and was sentenced to 60
months imprisonment. On September 8, 2000, Sposato entered a conditional plea
of guilty to Count 7 of the indictment, namely the unlawful use of a
communication facility, and was sentenced to 33 months imprisonment.
By separate appeals, Mitchell, Sposato and Andrada now appeal the order
of the district court denying their respective motions to suppress. Each appellant
filed his own opening and reply brief, and the government, by order, was
permitted to file one brief in answer to the three separate opening briefs. Each
appellant is represented by his own counsel, each of whom presented oral
argument on behalf of his client. Though we are here presented with three
separate appeals, all will be treated in this order and judgment, since all basically
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pose the question of whether the wiretap orders were obtained in accord with 18
U.S.C. § 2518.
Each of the three applications for a wiretap with which we are here
concerned was presented to the Honorable John L. Kane, Jr., a United States
District Judge for the District of Colorado. As stated, each was supported by an
affidavit of Agent Guthrie. 1 The affidavit in support of the application for WT-5
is 74 pages in length. The affidavit supporting the application for WT-6 is 58
pages in length and the application for an extension order was 83 pages in length.
Needless to say, there is considerable detail in each affidavit. The application for
WT-5 sought an authorization to intercept wire communications of Mitchell,
Sposato, Andrada, and others, some of whom were identified by name, and others
whose names were unknown, to and from a telephone known to be used by David
Gomez and subscribed in the name of Annette Trujillo, and two digital display
paging devices subscribed in the name David Gomez. The application for WT-6
sought authorization to intercept wire communications of Mitchell, Sposato,
Andrada, and others to and from a telephone utilized by and subscribed in the
name Richard Andrada and the digital display paging devices subscribed to by
1
It appears that the only evidentiary matters before the issuing judge were
the three affidavits of Agent Guthrie. Accordingly, our determination of whether
the district court erred in denying the motions to suppress is, as was the district
court, limited to a consideration of these affidavits. See, e.g., United States v.
Mondragon, 52 F.3d 291, 293-4 (10th Cir. 1995).
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David Gomez. As stated, the third application sought an extension of WT-6.
The procedure for obtaining a court order authorizing the interception of
wire communications is set forth in 18 U.S.C. § 2518. 18 U.S.C. § 2518(1)(c)
provides that each application for a wiretap shall include “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.” 18 U.S.C. § 2518 (3)(c) provides that a judge may enter an ex-parte
order authorizing a wiretap if he determines on the basis of the facts submitted by
the applicant for the wiretap, that “normal investigative procedures have been
tried and have failed or reasonably appear to be unlikely to succeed if tried or to
be too dangerous.”
We have held that the so-called “necessity requirement” as set forth in 18
U.S.C. §§ 2518(1)(c), (3)(c) is separate and distinct from the “probable cause”
requirement set forth in 18 U.S.C. §§ 2518 (3)(a), (b), and that the “purpose of
the necessity requirement is to ensure that the relatively intrusive device of
wiretapping ‘is not resorted to in situations where traditional investigative
techniques would suffice to expose the crime’.” United States v. Castillo-Garcia,
117 F.3d 1179, 1185 (10th Cir. 1997)(quoting United States v. Edwards, 69 F.3d
419, 429 (10th Cir. 1995)). In the instant case the district court, in denying
appellants’ motions to suppress, determined on the basis of Agent Guthrie’s
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affidavits, which the court analyzed in detail, that the requirements of 18 U.S.C.
§§ 2518(1)(c), (3)(c) were “satisfied” as to all three wiretap applications.
On appeal, all three appellants challenge the district court’s determination
that Agent Guthrie’s affidavits complied with 18 U.S.C. §§ 2518(1)(c), (3)(c).
They argue, essentially, that the affidavits did not demonstrate “necessity,” and
that other less intrusive investigative techniques would have sufficed, and,
indeed, that such had already been used, with considerable success. As concerns
the “other investigative techniques,” we spoke in Castillo-Garcia as follows:
We now expressly hold what the court in Mesa-
Rincon suggested and what seems clearly to be
contemplated by Title III. To obtain an electronic
surveillance order, the government must explain fully in
its application what investigative techniques have been
tried against the target of the wiretap. 18 U.S.C. §§
2518(1)(c), 2518(3)(c) (1994). If any of the four
categories of normal investigative techniques referred to
in the legislative history of Title III have not been tried,
the government must explain with particularity why each
of such untried techniques would be either unsuccessful
or too dangerous. Those investigative procedures are:
(1) standard visual and aural surveillance; (2)
questioning and interrogation of witnesses or
participants (including the use of grand juries and the
grant of immunity if necessary); (3) use of search
warrants; and (4) infiltration of conspiratorial groups by
undercover agents or informants. In addition, if other
normal investigative techniques such as pen registers or
trap and trace devices have not been tried, a similar
explanation must be offered as to why they also would
be unsuccessful or too dangerous. We add pen registers
and trap and trace devices to this list because they
possess a logical relationship and close affinity to
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wiretaps and yet are less intrusive. Thus, unless the
government can show that they would be ineffective or
dangerous they must be tried before resorting to
wiretaps.
Id. at 1187.
At the outset of our discussion, we emphasize that we are here only
concerned with the “necessity requirement” of 18 U.S.C. § 2518. We are here not
concerned with “probable cause,” “minimization,” or any other requirement. Our
standard of review in an appeal from a denial, or a grant, of a motion to suppress,
is set forth in Castillo-Garcia, as follows:
On appeal from a motion to suppress evidence
obtained pursuant to a wiretap, we accept the district
court’s factual findings unless clearly erroneous, review
questions of law de novo, and view the evidence in the
light most favorable to the prevailing party. The
question of whether the government demonstrated
sufficient “necessity” under 18 U.S.C. § 2518(1)(c)
(1994) to support the issuance of a wiretapping order is
a question of law which we review de novo. However,
“a wiretap authorization order is presumed proper, and a
defendant carries the burden of overcoming this
presumption.” Thus, under our precedents, the
defendants continue to carry the burden of persuasion on
the legal question of whether the Second through Fifth
Wiretaps were “necessary,” despite having prevailed
below. As discussed supra Part I, a wiretap is
“necessary” only where “normal investigative
procedures have been tried and have failed or reasonably
appear to be unlikely to succeed if tried or to be too
dangerous.”
Id. at 1186 (citations omitted).
However, in this same connection, in United States v. Armendariz, 922 F.2d
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602 (10th Cir. 1990), we said that the “necessity requirement” should be
interpreted in a practical and common sense fashion, and described our standard
of review on appeal as follows:
We review the district court’s finding of probable cause
for a wiretap under the same standard used for a search
warrant to determine whether the facts and
circumstances within the officer’s knowledge based on
reasonably trustworthy information are sufficient to
warrant a person of reasonable caution to believe that an
offense has or is being committed. “Although we
examine de novo whether ‘a full and complete
statement’ was submitted meeting section 2518(1)(c)’s
requirements, we review the conclusion that the wiretap[
] [was] necessary in each situation for an abuse of
discretion.”
Id. at 608 (citations omitted).
Proceeding then to the question of whether the affidavits of Agent Guthrie
which were presented to the issuing judge (Judge Kane) were sufficient to meet
the “necessity requirement” of 18 U.S.C. § 2518, we would again note that the
target telephones in WT-5 were a telephone subscribed to by one Annette Trujillo
and known to be used by David Gomez and paging devices subscribed in the name
of David Gomez. The application sought an order authorizing the interception of
telephone communications from Mitchell, Sposato, Andrada, and others, some
named and still others unnamed, and the target telephones. In WT-6 the target
telephones were a telephone utilized and subscribed in the name of Richard
Andrada and paging devices used by and subscribed to by David Gomez. The
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application sought an order authorizing the interception of telephone
conversations from Mitchell, Sposato, Andrada, and others, some named and still
others unnamed, and the target telephones. As indicated, the third application
was for an extension of the WT-6 order. There was no application to intercept
communications between telephones used or subscribed to by either Mitchell or
Sposato, but, as stated, a telephone utilized and subscribed to by Andrada was a
target telephone in WT-6.
Our reading of the three affidavits of Agent Guthrie convinces us that as to
the targeted telephones, the “necessity requirement” of 18 U.S.C. § § 2518(1)(c),
(3)(c) was satisfied. 2 We certainly would not be inclined to hold that any of the
three appellants met their burden of overcoming the presumption that the
authorization orders were proper. The district court fully analyzed all of the
issues in its 26-page memorandum order and we are in general accord therewith.
Further, the district court’s order is also in accord with the rationale of such cases
as Castillo-Garcia; United States v. Killingsworth, 117 F.3d 1159 (10th Cir.
1997) and our unpublished order and judgment, United States v. Bovie, 120 F.3d
271, 1997 U.S. App. LEXIS 27498 (10th Cir. July 29, 1997).
2
We reach that conclusion whether our standard of review of the “necessity
requirement” be de novo, as stated in United States v. Castillo-Garcia, 117 F.3d
1179, 1186 (10th Cir. 1997), or an abuse of discretion as stated in United States v.
Armendariz, 922 F.3d 602, 608 (10th Cir. 1999). In this connection, see United
States v. Garcia, 232 F.2d 1309, 1313 (10th Cir. 2000).
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Appellants also argue that the government failed to show “necessity” as to
each of them individually. 18 U.S.C. § 2518(1)(c) sets forth the so-called
“necessity requirement.” 18 U.S.C. § 2518(1)(b)(iv) requires that the application
for a wiretap order contain “the identity of the person, if known, committing the
offense and whose communications are to be intercepted.” The argument is that
18 U.S.C. § 2518(1)(b)(iv) requires that the necessity requirement of 18 U.S.C. §
2518(1)(c) be shown as to all named interceptees. We do not agree with this
argument. See, e.g., United States v. Donovan, 429 U.S. 413 (1976). In
Donovan, the Supreme Court held that Congress did not intend that 18 U.S.C.
§2518(1)(b)(iv) play “a central, or even functional, role in guarding against
unwarranted use of wiretapping or electronic surveillance.” Donovan, 429 U.S. at
437 (quoting United States v. Chavez, 416 U.S. 562, 578 (1974)). See also
United States v. Barrios, 994 F.Supp. 1257, 1262-66 (D.Colo 1993).
Judgment affirmed.
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