United States v. Mascarenas ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 5 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 01-1093
v. (D.C. No. 99-CR-208-N)
RICHARD MASCARENAS, (D. Colorado)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO , ANDERSON , and BALDOCK , Circuit Judges.
A jury convicted defendant Richard Mascarenas on two counts of drug
trafficking in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii) and 18 U.S.C.
§ 2. Mr. Mascarenas appeals his conviction on the following grounds: First, he
asserts that the district court should have granted his motions to suppress (i)
evidence obtained as a result of a court-authorized wiretap, (ii) evidence obtained
during the execution of search warrants at his residence and place of business,
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
and (iii) incriminating statements he made during the search of his residence.
Second, he asserts that the district court improperly admitted the out-of-court
statements of an alleged co-conspirator under Rule 801(d)(2)(E) of the Federal
Rules of Evidence. Third, he asserts that there was insufficient evidence to
support his conviction. 1
Exercising jurisdiction pursuant to 28 U.S.C. §1291, we
affirm.
FACTS
Viewing the evidence in the light most favorable to the government and the
jury verdict, the facts are as follows:
Law enforcement began investigating Mr. Mascarenas in February 1996,
suspecting him of drug trafficking. In the spring and summer of 1996 the
investigators obtained information from a number of confidential sources about
Mr. Mascarenas’ personal involvement in the drug trade. Some of these
informants claimed to have purchased drugs directly from Mr. Mascarenas at his
residence and/or places of business, including a bar known as Veronica’s Bases
Loaded (“Veronica’s”). During this same period of time, investigators conducted
“trash covers” 2
at Mr. Mascarenas’ residence, discovering circumstantial evidence
1
Mr. Mascarenas does not appeal any aspect of his sentence.
2
“Trash covers” are a commonly used investigative technique whereby
(continued...)
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of drug activity. By April 1997 investigators believed that Mr. Mascarenas was
not a small time, independent drug dealer, but was part of a larger organization
involving his sons, Anthony and Michael, as well as other family members and
close friends. (For the remainder of this opinion we refer to the group of people
involved in the drug trade with Mr. Mascarenas as the “Mascarenas Organization”
or the “Organization”).
Between April 28, 1997, and June 6, 1998, several confidential informants
provided investigators with information about the Mascarenas Organization
and/or purchased quantities of cocaine from members of the Organization.
According to the investigators, however, none of these informants could provide
information about the source(s) of the Organization’s drug supply, or provide
sufficient details about the structure of the Organization to allow for effective
prosecution. Although investigators supplemented the information obtained from
these confidential informants with a number of other investigative techniques
(including, but not limited to, visual surveillance and the use of pen registers and
trap and trace devices), these other techniques did not allow them to uncover the
full scope of the suspected conspiracy, or the source of the Organization’s drug
supply.
2
(...continued)
officers collect the trash at a suspect’s residence after it has been placed on the
curb, and search through it for evidence of illegal activity.
-3-
As such, on or about August 6, 1998, Detective Marcus L. Fountain
submitted an application and 49-page supporting affidavit requesting an order
authorizing the wiretap of a cellular phone and pager known to be used by
Anthony Mascarenas, Mr. Mascarenas’ son. Judge Zita Weinshienk of the United
States District Court for the District of Colorado approved the application and
issued an order (98-WT-7-Z) authorizing the requested wiretap for thirty days.
On or about September 10, 1998, Judge Weinshienk extended the wiretap for an
additional thirty days.
On or about September 14, 1998, investigators were introduced to Jason
Heath, a confidential informant who knew Mr. Mascarenas’ other son, Michael,
from time the two men spent together in jail. Mr. Heath expressed a willingness
to help the investigators uncover information about the Mascarenas Organization.
From September 14, 1998, until October 6, 1998, Mr. Heath cooperated by
setting-up and completing five separate controlled drug purchases with Michael.
Of particular importance is Mr. Heath’s fifth and final transaction, which
occurred on October 6, 1998. Mr. Heath paged Michael from a police station and,
in a return call, Michael agreed to provide him with four ounces of cocaine at
Veronica’s later that night. Mr. Heath was strip searched by the investigators to
verify that he had no controlled substances already in his possession. He was
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then given $3000 in federally marked bills and fitted with a body wire before he
was dropped off at Veronica’s by one of the investigators at about 7:00 p.m.
At approximately 8:15 p.m. investigators observed Mr. Mascarenas pull
into the parking lot of Veronica’s in a black Cadillac El Dorado. Michael and an
unidentified woman exited the vehicle and proceeded into the bar where Michael
met with Mr. Heath. Michael informed Mr. Heath that he did not have enough
cocaine on him, suggesting that if Mr. Heath gave him the money he could go and
get it. According to the testimony of Mr. Heath, when he hesitated and indicated
he would not give Michael the money until he had the drugs in hand, Michael
made a statement about giving the money to his dad. After Mr. Heath finally
agreed and gave Michael the money, Michael then went outside, poked his head
into the open passenger window of the El Dorado and spoke briefly with Mr.
Mascarenas. Michael returned to the bar and Mr. Mascarenas drove away.
Investigators followed Mr. Mascarenas a couple of blocks to the area of
31st Avenue and Vallejo Street where Mr. Mascarenas parked the car and
proceeded on foot down 31st Avenue. Although the investigators lost Mr.
Mascarenas for a short period of time, the El Dorado eventually returned to
Veronica’s at approximately 10:00 p.m. At this point, Michael exited the bar and
got into the car. Mr. Heath testified, however, that before Michael left the bar he
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gave Mr. Heath a smaller quantity of drugs as a form of “collateral” to assure his
return with the requested four ounces.
Shortly thereafter, the El Dorado arrived at the New U&H Chile Factory
(“U&H Chile”), a business in which Mr. Mascarenas had a significant interest,
serving as its President. A video surveillance camera set up by the investigators
observed two men matching the description of Mr. Mascarenas and Michael exit
the car and enter the factory. The two men remained inside U&H Chile for a
short time, eventually returning to the vehicle and proceeding to Veronica’s.
Upon their arrival at Veronica’s, Michael exited the car and went back inside the
bar. Michael then completed the deal, providing Mr. Heath with approximately
four ounces of cocaine.
On October 8, 1998, Detective Fountain filed an application for warrants to
search numerous locations believed to contain evidence of the Organization’s
drug conspiracy, including, in relevant part, Mr. Mascarenas’ residence at 13408
Marion Street and U&H Chile. In support of this application, Detective Fountain
prepared a 74-page affidavit detailing the information obtained throughout the
investigation, including information obtained as a result of the previously issued
wiretap order and extension and information obtained as a result of the
transaction between Mr. Heath and Michael two days before. Magistrate Judge
Patricia A. Coan of the United States District Court for the District of Colorado
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issued search warrants for both 13408 Marion Street and U&H Chile, among other
locations.
A team of officers executed the search warrant at 13408 Marion Street at
approximately 8:30 a.m. on Friday, October 9, 1998. Upon arriving at Mr.
Mascarenas’ residence, the officers knocked on the front door and announced
their presence. After receiving no response they forced entry into the residence,
whereupon they found Mr. Mascarenas standing in his underwear, about five feet
from the main floor bedroom. He was holding a pair of pants and coming towards
the officers with his wife proceeding about five feet behind him in her bathrobe.
The police ordered both Mr. and Mrs. Mascarenas to the floor, where they
remained for a very short period of time until the police could fully secure the
residence. Mr. and Mrs. Mascarenas were then allowed to get up and sit on the
living room couch. At this point, one of the officers searched the pants Mr.
Mascarenas was holding, retrieving $4,661 in cash. Included in this cash were a
number of federally marked bills matching those used by Mr. Heath to purchase
cocaine from Michael on October 6. The officer then gave the pants back to Mr.
Mascarenas.
While the other officer was searching Mr. Mascarenas’ pants, Detective
Joel Bell explained to Mr. Mascarenas the purpose of the entry and allowed him
to review the search warrant. Detective Bell specifically informed Mr.
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Mascarenas that the officers “were just there to search the residence,” that “under
normal circumstances, no one was going to go to jail that day,” and that he “was
free to leave, if he chose.” Tr. of Trial Proceedings, November 27, 2000, at 108,
Appellant’s App. (“App.”), Vol. II, at 453a. Finally, Detective Bell orally
advised Mr. Mascarenas of his Miranda rights. Mr. Mascarenas then signed a
form indicating that he understood and voluntarily waived those rights.
Mr. Mascarenas was then asked whether there were any narcotics in the
house, to which he replied “no.” Id. at 110, App., Vol. II, at 455. Shortly
thereafter, one of the officers found a duffle bag containing approximately two
kilograms of cocaine in the main floor bedroom, the bedroom Mr. and Mrs.
Mascarenas were exiting when the police entered the home. When asked why he
had lied to the officers about the presence of drugs in the home, Mr. Mascarenas
replied “‘Why would I tell you? I don’t want to go to jail.’” Id. at 111, App.,
Vol. II, at 456.
After the search of the main floor bedroom was complete, Sergeant Ernie
Martinez re-advised Mr. Mascarenas of his Miranda rights, specifically calling
him to the kitchen counter to review the waiver form he had previously signed.
Mr. Mascarenas was then asked if there were any more drugs or money in the
house. He replied that there was about $80,000 upstairs and instructed Mrs.
Mascarenas to show the officers where it was. Mrs. Mascarenas escorted two
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police officers upstairs to what appeared to be a master bedroom used by Mr.
Mascarenas and his wife. She then pointed out some cocaine in a jewelry box and
retrieved a shoe box in the walk-in closet, handing it to one of the officers.
Although the shoe box contained only $5500, the officers continued their search
and eventually found $84,900 in cash hidden in a suitcase in the bedroom closet.
Like the money found in Mr. Mascarenas’ pants pocket, the cash found in the
suitcase included a number of federally marked bills matching those used by Mr.
Heath to purchase the cocaine from Michael on October 6. Finally, the officers
found a brown bank bag containing $2,500 in cash, a black leather jacket
containing $140 in cash, and a large water bottle containing $449 in cash.
After the officers finished searching the master bedroom, Mr. Mascarenas
was called into the room, re-advised of his Miranda rights a third time, and asked
about the source of the drug supply and money they had found. At this time, Mr.
Mascarenas would not identify the source of the money, but expressly indicated it
did not come from any of his legitimate business ventures. He further claimed
that “somebody” had brought the narcotics over a few days before, but did not
identify who that “somebody” was. Tr. of Trial Proceedings, November 27, 2000,
at 169, App., Vol. II, at 514. During the course of this final questioning, Mr.
Mascarenas made a statement to the effect of “Maybe this is what I need for a
wake-up call.” Id. at 124, App., Vol. II, at 469. The officers then completed
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their search and left the premises with the discovered evidence. They did not
arrest Mr. Mascarenas at this time.
On the same day, and at approximately the same time as officers were
executing the search warrant at 13408 Marion Street, different officers executed
the search warrant at U&H Chile. This search uncovered a triple-beam scale, a
trash can containing some clear cellophane wrapping, some clear plastic sandwich
bags, and a kitchen steak knife. All of these items were found in a break room
type area of the factory, adjacent to the main office. With the exception of the
sandwich bags, each of these items contained cocaine residue. While the officers
observed actual chili roasting equipment at the factory, the business did not
appear to be actively processing or packaging chili.
On June 24, 1999, Mr. Mascarenas was indicted on two counts of drug
trafficking. Specifically, Mr. Mascarenas was charged with knowingly and
intentionally aiding and abetting in the distribution of cocaine on October 6,
1998, and knowingly and intentionally possessing, with intent to distribute, 500
grams or more of cocaine on October 9, 1998, both in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(ii) and 18 U.S.C. §2. 3
Prior to trial, Mr. Mascarenas
filed motions to suppress (i) evidence obtained as a result of wiretap 98-WT-7-Z
Mr. Mascarenas’ sons, Michael and Anthony, as well as others, were
3
charged with conspiracy in Count One of the indictment. Mr. Mascarenas,
however, was not included in this charge.
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and its extension, (ii) evidence obtained during the search of his residence and
U&H Chile, and (iii) all incriminating statements he made during the search of his
residence. In a detailed Order and Memorandum of Decision, Judge Edward E.
Nottingham of the United States District Court for the District of Colorado denied
all of Mr. Mascarenas’ motions.
The case proceeded to trial on November 27-29, 2000. At trial, the
government offered tape recordings of the conversations between Michael
Mascarenas and Mr. Heath during the October 6 transaction at Veronica’s. These
conversations had been captured by the body wire worn by Mr. Heath. Included
in the tape recorded conversations was, among other things, Michael’s statement
to Mr. Heath that he would give the drug money to his dad. Mr. Mascarenas
objected to the introduction of these statements on hearsay grounds. After
conducting a hearing outside the presence of the jury, the district court overruled
Mr. Mascarenas’ objections, admitting the tape recordings as statements of a co-
conspirator under Rule 801(d)(2)(E) of the Federal Rules of Evidence.
On November 29, 2000, the jury convicted Mr. Mascarenas on both counts.
He was thereafter sentenced to concurrent prison terms of 87 months on each
count, and four years supervised release.
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DISCUSSION
I. Motions to Suppress
On an appeal from an order denying a defendant’s motion to suppress, “this
court accepts the district court’s factual findings unless clearly erroneous and
views the evidence in the light most favorable to the prevailing party.” United
States v. Erving L. , 147 F.3d 1240, 1242 (10th Cir. 1998). See also United States
v. Le , 173 F.3d 1258, 1264 (10th Cir. 1999); United States v. Castillo-Garcia , 117
F.3d 1179, 1186 (10th Cir. 1997). We address each of Mr. Mascarenas’ motions
to suppress in turn.
A. Wiretap Evidence
Mr. Mascarenas appeals the district court’s denial of his motion to suppress
evidence obtained as a result of wiretap 98-WT-7-Z and its extension, contending
that the wiretap was improperly authorized because the government failed to
establish that it was “necessary” as required under Title III of the Omnibus Crime
Control and Safe Streets Act of 1968 and our corresponding case law. 4
He asserts
4
The statute itself requires all wiretap applications to include “a full and
complete statement as to whether or not other investigative techniques have been
tried and failed or why they reasonably appear to be unlikely to succeed if tried or
to be too dangerous,” and requires any issuing judge to find 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.” 18 U.S.C. §§ 2518 (1)(c)
(continued...)
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that as a result of the government’s failure to meet the necessity requirement, the
evidence obtained from the improperly authorized wiretap was improperly used to
support the government’s subsequent search warrant applications, and improperly
admitted at trial. 5
We disagree. 6
4
(...continued)
& (3)(c). Our case law refers to these statutory provisions collectively as the
“necessity requirement,” the purpose of which 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.
Edwards, 69 F.3d 419, 429 (10th Cir. 1995) (quoting United States v. Kahn, 415
U.S. 143, 153 n. 12 (1974)).
5
At trial, the government introduced excerpts from two tape recorded
conversations between Mr. Mascarenas and his son, Anthony. Both of the
recorded conversations took place on October 8, 1998, and were recorded as part
of the extension to wiretap 98-WT-7-Z. Neither the excerpts themselves nor their
transcripts were designated as part of the record on appeal, and thus we cannot
determine exactly what evidence was provided by these tapes. It appears from the
government’s closing statement, however, that the tapes were offered to prove
that Mr. Mascarenas dropped Michael off at Veronica’s on October 6 and was
otherwise involved in the drug transaction between Michael and Mr. Heath that
evening. See Tr. of Trial Proceedings, November 29, 2000, at 429, App., Vol. III,
at 774. Regardless of what evidence was actually contained on these tapes, we
hold, for reasons more fully articulated below, that the district court did not err in
failing to suppress this evidence. We also note that even if the admission of the
excerpts was erroneous, such error was harmless in light of the district court’s
statement, in front of the jury, that “those two excerpts . . . proved nothing.” Id.,
November 28, 2000, at 87, App., Vol. II, at 433.
6
In the “Summary of the Argument” section of his opening brief, Mr.
Mascarenas suggests briefly that “the [wiretap] order authorizing approval under
which [his communications were] intercepted was insufficient on its face,” and
that “the interceptions were made in contravention of Title 18, U.S.C. § 2510 et.
seq.” Appellant’s Opening Br. at 9. Although Mr. Mascarenas raised these
arguments below, he did not develop them on appeal, either in the body of his
(continued...)
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Once a wiretap has been authorized by a district court, it is presumed
proper and the defendant bears the burden of proving its invalidity under the
statute. United States v. Quintana , 70 F.3d 1167, 1169 (10th Cir. 1995). As such,
Mr. Mascarenas bears the burden of proving that the government failed to meet
6
(...continued)
brief or at oral argument. Indeed, he did not even designate the wiretap orders
themselves as part of the record on appeal, and thus we have nothing to review.
As such, we address only his necessity claim, and hold that any other claims were
not properly raised and are therefore waived. See United States v. Hardwell, 80
F.3d 1471, 1492 (issue waived when party fails “to make any argument or cite any
authority to support his assertion”).
Mr. Mascarenas also asserts that the district court incorrectly determined
that he was not an “aggrieved person” and thus could not challenge the validity of
the evidence obtained by wiretap 98-WT-7-Z. As the government correctly points
out, however, “[t]his argument confuses two different wiretaps.” Appellee’s Br. at
16. In its Order and Memorandum of Decision denying Mr. Mascarenas’ motions
to suppress (as well as the motions to suppress of other co-defendants) the district
court found that with regard to wiretap 98-WT-5-K, Anthony Mascarenas was the
only “aggrieved person.” Order and Mem. of Decision at 27, Appellant’s
Opening Br. at Attachment 1. However, because it was two of Mr. Mascarenas’
co-defendants and not Mr. Mascarenas himself that challenged the validity of
wiretap 98-WT-5-K, the district court’s “aggrieved person” determination had no
impact on Mr. Mascarenas or the outcome of his motion to suppress. Id. at 26-27.
With regard to wiretap 98-WT-7-Z, the only wiretap actually challenged by
Mr. Mascarenas below and actually before us on appeal, the district court did not
find that Mr. Mascarenas (or any his co-defendants) were not “aggrieved
persons.” To the contrary, the district court allowed Mr. Mascarenas (and his co-
defendants) to challenge the validity of wiretap 98-WT-7-K, specifically ruling on
the merits of such challenges and implicitly recognizing their “aggrieved” status.
See id., at 3-27.
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the necessity requirement in this particular case. 7
We first articulated the
standards the government must meet to satisfy the necessity requirement in
Castillo-Garcia , stating as follows:
To obtain an electronic surveillance order, the government must
explain fully in its application what investigative techniques have
been tried against the target[s] 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 conspiratal 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.
Castillo-Garcia , 117 F.3d at 1187. We also stated that “[w]hether other normal
investigative techniques must also be explored before turning to wiretaps will
depend on the unique circumstances of each investigation,” id. at 1188, and that
“a court must undertake a consideration of all the facts and circumstances in order
We have previously acknowledged that there is an intra-circuit split
7
regarding whether we should apply a de novo standard of review in necessity
cases, or whether we should review simply for an abuse of discretion. See United
States v. Mitchell, Nos. 00-1366, 00-1520, 00-1521, 2001 WL 1265813, at *3-4
(10th Cir. Oct. 23, 2001). In this case, we affirm regardless of which standard of
review applies, and thus decline any invitation to resolve the circuit split at this
time. See United States v. Garcia, 232 F.3d 1309, 1312 (10th Cir. 2000).
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to determine whether the government’s showing of necessity is sufficient to
justify a wiretap.” Id. at 1187 (quotation omitted). In any event, we recognize
that “[t]he ‘necessity’ requirement . . . should be read in a common sense fashion
. . . , and it is not necessary that every other possible means of investigation be
exhausted.” United States v. Nunez , 877 F.2d 1470, 1472 (10th Cir. 1989).
Detective Fountain’s 74-page affidavit adequately explained that the
purpose of the investigation was to discover the full scope of the suspected drug
conspiracy and uncover the ultimate source of the Organization’s drug supply, 8
and, as discussed below, fully and completely explained why normal investigative
techniques, including the five investigatory techniques expressly articulated in
Castillo-Garcia , did not or would not have furthered this particular investigation.
1. Use of Undercover Police Officers to Infiltrate the
Mascarenas Organization
It is clear from the affidavit that the investigators considered the use of
undercover law-enforcement personnel and reasonably determined that the
technique was unlikely to succeed. Detective Fountain explained that it “would
not be possible, due to the fact that RICHARD MASCARENAS has historically
See generally United States v. Newman, 733 F.2d 1395, 1399 (10th Cir.
8
1984) (“This court has held that the determination of the dimensions of an
extensive drug conspiracy justifies the use of electronic surveillance.”).
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dealt only with family members and very close friends.” Aff. of Marcus Fountain
in Supp. of Appl. Auth. the Interception of Wire and Electronic Comm. (“Wiretap
Aff.”) ¶ 86, App., Vol. IV, at 939. He further noted that although “numerous law
enforcement agencies” had been investigating the Mascarenas family for years,
“no undercover officers have been able to actually make a drug purchase from any
MASCARENAS family member.” Id. Finally, he indicated that even if an officer
could be introduced to one of the members of the Mascarenas Organization, “it
would be an uncommon business practice at their level to disclose their source of
supply.” Id.
2. Use of Confidential Informants
The affidavit indicated that the investigators obtained information from a
number of confidential informants, but reasonably concluded that they could not
uncover the source of the drugs, the full scope of the criminal enterprise, or
successfully prosecute members of the conspiracy using these informants because
(i) none of them could actually identify the source of the drugs, (ii) most of them
refused to testify, and (iii) a number of them had discontinued their cooperation
during the course of the investigation. Id. ¶¶ 87-90, App., Vol. IV, at 939-40. He
further explained that only a few of these confidential informants had actually
been able to make drug purchases directly from those involved in the Mascarenas
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Organization, and that none of them were actually introduced to the source of the
drugs. Id. ¶¶ 87-94, App., Vol. IV, at 939-41.
3. Interviews of Co-conspirators and the use of a Grand Jury
Investigation
The affidavit fully explained the difficulty of interviewing co-conspirators
and other witnesses in this case, as well as the unlikely success of a Grand Jury
investigation. Detective Fountain explained that although the investigators
considered interviewing co-conspirators and associates of the Mascarenas
Organization, such interviews were never actually conducted because “the
individuals who are knowledgeable of the criminal activities are generally
participants of the crimes, and therefore, unwilling to provide information and
testify.” Id. ¶ 95, App., Vol. IV, at 941. He further explained that the
investigators were hesitant to employ this method in this particular case out of
fear that those interviewed would communicate such efforts “to the principals,
their subordinates, or others, who would take even more precautionary measures
to avoid further collection of evidence by law enforcement.” Id. ¶¶ 95-96, App.,
Vol. IV, at 941-42.
Detective Fountain further explained that although the investigators
considered convening a Federal Grand Jury to investigate the illegal activities of
the Mascarenas Organization, they believed that such an investigation would have
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been unsuccessful given the fact that “many of the possible witnesses are co-
conspirators themselves” who were likely to invoke their Fifth Amendment
testimonial privilege or otherwise refuse to provide testimony, even under a grant
of immunity. Id. ¶¶ 97-98, App., Vol. IV, at 942-43. His conclusions were
entirely reasonable given his testimony that all of those apparently involved in the
Mascarenas Organization appeared to be family members or close family friends,
Id. ¶ 86, App., Vol. IV, at 939, and that all of those confidential sources
previously discovered had been reluctant to testify, even under a grant of
immunity, because they feared retaliation by the Mascarenas Organization. 9
4. Search Warrants
The affidavit sufficiently demonstrated that the use of search warrants was
not practical at that stage of the investigation. Detective Fountain explained that
“the execution of search warrants would not develop sufficient evidence
9
See Wiretap Aff. ¶ 17, App., Vol. IV, at 911 (“A.U.S.A. Campbell also
agreed to try to persuade those in charge to allow CS-1 and CS-1’s family to leave
the state in order to avoid possible retaliation from the Mascarenas
organization.”); id. ¶ 41, App., Vol. IV, at 918 (“CS-3 expressed the wish to
remain anonymous and avoid testifying in any possible court proceedings. CS-3
stated that testifying would endanger the life of CS-3 and/or the life of the CS-3’s
family.”); id. ¶ 45, App., Vol. IV, at 920 (“CS-4 expressed a reluctance to testify
due to the fact that CS-4 believes that it would endanger the life of CS-4 or CS-
4’s family”); id. ¶ 73, App., Vol. IV, at 928 (“CS-8 stated that CS-8 would never
consider testifying against RICHARD MASCARENAS because CS-8 believes that
RICHARD MASCARENAS would harm CS-8 or CS-8’s family.”)
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necessary to determine the full scope of the alleged criminal activity, the identity
of others involved in the criminal enterprise and their particular roles.” Id. ¶ 98,
App., Vol. IV, at 942. He further explained that “no timely information ha[d]
been provided by any confidential source that would provide enough probable
cause to obtain search warrants for any location associated with” the criminal
enterprise. Id. , App., Vol. IV, at 942-43.
5. Visual and Aural Surveillance
The affidavit detailed the prior use of ordinary visual and aural surveillance
in the investigation, and reasonably explained why it was unlikely to be a
successful tool in this particular case. Specifically, Detective Fountain explained
that (i) the previous use of the technique had provided only minimal information,
(ii) the suspects were sophisticated in detecting and avoiding such surveillance,
and (iii) the suspects employed the use of numerous vehicles and locations in
conducting their operations, making it difficult to establish specific and
meaningful surveillance. Id. ¶¶ 52-53 & 103-105, App., Vol. IV, at 921-22 &
943-44.
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6. Pen Registers, Trap and Trace Devices and Other
Techniques
Finally, the affidavit indicated that although the investigators utilized pen
registers and trap and trace devices, trash covers, and the review of police
records, such additional techniques could not provide sufficient information to
uncover the full scope of the criminal enterprise or successfully prosecute those
believed to be involved. With regard to pen registers and trap and trace devices,
Detective Fountain testified that although these devices were “useful in revealing
some of the associations and frequency of contact” among known participants of
the conspiracy, they did not actually prove illegal activity or “identify the actual
participants in the documented telephone calls.” Id. ¶ 101, App., Vol. IV, at 943.
Regarding trash covers, Detective Fountain explained that although they provided
some useful information in the past, a confidential source had indicated that Mr.
Mascarenas was “familiar with this investigative technique,” rendering it of “no
future value” to the investigation. Id. ¶¶ 99-100, App., Vol. IV, at 943. Finally,
regarding the review of police records, Detective Fountain explained that
although these records provide information on which suspects had been arrested
for prior criminal activity, they “reveal nothing concerning the details or extent of
the alleged on-going criminal activity.” Id. ¶ 102, App., Vol. IV, at 943.
Based on the foregoing, we conclude that normal investigative techniques
alone would not have allowed the investigators to uncover the desired
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information, and affirm the district court’s denial of Mr. Mascarenas’ motion to
suppress. 10
10
In so holding, we reject Mr. Mascarenas’ argument that the affidavit
inappropriately relied on “generic boilerplate language” that cannot be used to
support a finding of necessity under the federal wiretap statute. Appellant’s
Opening Br. at 22. Although we recognize that “boilerplate” allegations and
“generalities” alone “are insufficient to support a wiretap application,” and that
“statements must be factual in nature and . . . specifically relate to the individuals
targeted by the wiretap,” Castillo-Garcia, 117 F.3d at 1188, we also note that the
government’s burden “is not great,” United States v. Bennett, 825 F. Supp.
1512,1525 (D. Colo. 1993), and that generalizations and “boilerplate” assertions
can be made so long as they are accompanied by specific information about how
these generalities apply to the particular suspects and/or the particular
investigation. Although the affidavit contains some general observations about
the problems Detective Fountain experienced using normal investigative
techniques in similar drug conspiracy investigations, it does not rely entirely on
these generalized statements. Rather, these statements are accompanied by
specific information about the Mascarenas investigation. By way of example, the
affidavit contained detailed information about the lengths particular suspects went
to insulate themselves from infiltration by outsiders, as well as their
sophistication in detecting and avoiding surveillance. It also explains how these
factors enhanced the general problems investigators typically face while
investigating criminal drug enterprises, and why the wiretap was therefore
necessary in this particular case.
Finally, we reject Mr. Mascarenas’ argument that the wiretap order was
unnecessary because, in “hindsight,” it was the discovery of Mr. Heath that
actually provided the investigators with the evidence needed to finally prosecute
Mr. Mascarenas. Appellant’s Opening Br. at 23. In reviewing the necessity of a
wiretap order, we consider only those facts and circumstances that existed at the
time the order was issued, not facts and circumstances that come to light only
after the wiretap has been authorized.
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B. Search Warrants
As discussed above, pursuant to search warrants issued by Magistrate Judge
Coan on or about October 8, 1998, police officers conducted simultaneous
searches at Mr. Mascarenas’ residence at 13408 Marion Street and at U&H Chile.
The search of his home uncovered large quantities of cocaine and cash; the search
of U&H Chile uncovered significant drug paraphernalia, particularly drug
packaging materials. The district court denied Mr. Mascarenas’ motion to
suppress this evidence. Mr. Mascarenas argues that “Officer Fountain’s affidavit
in support of the search warrant[s] lack[ed] probable cause,” and that the “District
Court’s findings [to the contrary] are clearly erroneous.” Appellant’s Opening Br.
at 13.
In determining whether or not probable cause existed to support the
issuance of a search warrant “we ‘must consider the totality of the circumstances
and determine whether the affidavit [in support of the warrant application]
established the probability that evidence of criminal activity would be located in
the desired search area.’” Le, 173 F.3d at 1265 (quoting United States v.
Wittgenstein , 163 F.3d 1164, 1171 (10th Cir. 1998)). In undertaking this review,
a magistrate judge’s “determination that probable cause exists is entitled to ‘great
deference,’ and ‘we ask only whether the issuing magistrate [judge] had a
“substantial basis” for determining probable cause existed.’” Id. (quoting
-23-
Wittgenstein , 163 F.3d at 1172) (further quotations omitted). The Supreme Court
instructs us that close calls should be resolved in favor of the issuing magistrate
judge. Massachusetts v. Upton , 466 U.S. 727, 734 (1984) (per curiam).
Contrary to Mr. Mascarenas’ assertions, Detective Fountain’s affidavit
sufficiently demonstrated a strong probability that Mr. Mascarenas had a long
history of drug trafficking and had historically and continually used his home and
businesses to further his drug trafficking activities. The affidavit detailed
information from several confidential sources about the drug trafficking activities
of Mr. Mascarenas and others with close ties to him, including his sons. Aff. of
Marcus Fountain in Supp. of an Application for a Search Warrant (“Warrant
Aff.”) ¶¶ 6-41, App., Vol. IV, at 957-969. At least four of these informants
indicated that they had purchased large quantities of cocaine and
methamphetamine directly from Mr. Mascarenas, both at his residence and at
Veronica’s. See id. 11
11
Specifically, the affidavit represents that (i) CS-1 purchased several
kilograms of cocaine and methamphetamine from Mr. Mascarenas at his home and
at the Log Cabin Bar (later renamed Veronica’s) on several different occasions
from 1993-1995, Warrant Aff. ¶¶ 7-16, App., Vol. IV, at 958-61, (ii) CS-2
purchased quarter ounces of cocaine from Mr. Mascarenas in 1997, mostly at
Veronica’s, but at least once at Mr. Mascarenas’ home, id. ¶¶ 18-25, App., Vol.
IV, at 962-64, (iii) CS-4 purchased ounce quantities of cocaine from Mr.
Mascarenas at his home and Veronica’s from December 1996 through September
1997, id. ¶¶ 31-33, App., Vol. IV, at 966-67, and (iv) CS-5 obtained
methamphetamine from Mr. Mascarenas in February 1998. Id. ¶¶ 34-35, App.,
(continued...)
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The affidavit also detailed a number of the cell phone conversations
between Anthony Mascarenas and others intercepted as a result of wiretap
98-WT-7-Z and its extension. Id. ¶¶ 43-71, App., Vol. IV, at 971-1020.
Detective Fountain opined that, based on his considerable experience
investigating criminal drug enterprises, most of these conversations, including
some with Mr. Mascarenas himself, were drug-related. Id. ¶ 73, App., Vol. IV, at
1023. 12 Likewise, the affidavit contained information about the drug trafficking
activities of Michael and Mr. Mascarenas on October 6. Id. ¶ 72, App., Vol. IV,
at 1020-22. This information specifically linked U&H Chile to Mr. Mascarenas’
drug trafficking activities.
Finally, the affidavit contained information indicating that Michael
Mascarenas had engaged in drug trafficking activity in the weeks immediately
preceding the search, and that this activity was directly linked to Mr. Mascarenas’
home, as well as U&H Chile. The affidavit detailed a number of instances in
which Michael set-up drug transactions from Mr. Mascarenas’ home. Id. ¶¶ 59,
11
(...continued)
Vol. IV, at 967. Additionally, the affidavit explains that another informant, CS-6,
had an acquaintance who opened a small restaurant inside Veronica’s and who
admitted to CS-6 in March 1998 that he was buying kilograms of cocaine from
Mr. Mascarenas every three to four days. Id. ¶¶ 37-39, App., Vol. IV, at 968-69.
12
Insofar as Mr. Mascarenas asserts that the search warrants were invalid
because they relied, at least in part, on communications illegally obtained as a
result of wiretap 98-WT-7-Z and/or its extension, we have already upheld the
legality of the wiretap, see supra Section (A)(1), rendering the argument moot.
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61 & 66-67, App., Vol. IV, at 992-97, 999-1003 & 1009-16. It also detailed at
least two occasions where Michael contacted or attempted to contact persons at
U&H Chile during the course of completing these drug transactions. Id. ¶¶ 59 &
67, App., Vol. IV, at 992-97 & 1011-16.
Despite the considerable amount of information in the affidavit establishing
probable cause, Mr. Mascarenas asserts that we should completely ignore the
information obtained from confidential informants about his drug activity because
“many of the instances discussed . . . occurred several years ago,” and that the
information was therefore “stale.” Appellant’s Opening Br. at 15. In United
States v. Shomo , 786 F.2d 981 (10th Cir. 1986), we stated as follows:
[P]robable cause to search cannot be based on stale information that
no longer suggests that the item sought will be found at the place to
be searched. . . . While it is true that the timeliness of the
information contained in the affidavit is an important variable,
probable cause is not determined simply by counting the number of
days between the facts relied on and the issuance of the warrant. . . .
Rather, whether information is too stale to establish probable cause
depends on the nature of the criminal activity, the length of the
activity, and the nature of the property to be seized. . . .
Id. at 984 (emphasis added). Here, although the affidavit contained information
about Mr. Mascarenas’ past activity that might not, by itself, support a finding of
probable cause, it also contained more than enough information demonstrating
that Mr. Mascarenas and his sons were engaged in ongoing and continuous drug
activity. See e.g. Le, 173 F.3d at 1267 (holding that the “passage of time is not of
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critical importance” where there is evidence in the affidavit that the offense is
ongoing). Thus, the affidavit did not rely on “stale” information to establish
probable cause.
Finally, Mr. Mascarenas asserts that because any evidence of recent drug
activity at 13408 Marion Street involved Michael, and not himself, there was no
probable cause to search his home. We are unpersuaded. The probable cause
analysis properly focuses not on individual suspects or tenants of the place to be
searched, but on the likelihood that evidence will be found at the subject location.
All that is required is a showing that someone engaged in illegal activity, had
access to the area to be searched, and that evidence of the illegal activity was
likely to be found in the location. The affidavit sufficiently demonstrates that, at
the very least, Michael was engaged in the drug trade and had unfettered access to
the home. It further established that Mr. Mascarenas had himself used his
residence to further drug dealing activities in the past, and that he likely remained
an active participant in the criminal drug trade. See United States v. Reyes , 798
F.2d 380, 382 (10th Cir. 1986) (“It is reasonable to assume that certain types of
evidence would be kept at a defendant’s residence and an affidavit need not
contain personal observations that a defendant did keep such evidence at his
residence.”) As such, there was more than enough information to allow
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Magistrate Judge Coan to reasonably infer that evidence of illegal drug trafficking
would be found at the Mascarenas residence at 13408 Marion.
In sum, we hold that the affidavit contained sufficient information to
support Magistrate Judge Coan’s determination that there was probable cause to
issue the warrants. 13
Accordingly, we affirm the district court’s denial of Mr.
Mascarenas’ motion to suppress, and the admission of evidence obtained from the
searches against Mr. Mascarenas at trial.
C. Incriminating Statements
Mr. Mascarenas next challenges the district court’s denial of his motion to
suppress the incriminating statements he made during the search of his residence.
He asserts that these statements were improperly obtained while he was in
custody, and before he was properly mirandized, in violation of his Fifth
Even if we assume, arguendo, that the affidavit failed to establish
13
probable cause for the search warrants, we would nonetheless affirm the district
court and hold that the Fourth Amendment exclusionary rule is inapplicable in
this case because the officers conducted the searches in “good faith” under United
States v. Leon, 468 U.S. 897 (1984). The district court concluded that “none of
the four enumerated situations exist which would preclude the application of the
good-faith exception to the exclusionary rule.” Order & Mem. of Decision at 45,
Appellee’s Br. at Attachment 1. Having reviewed the entire record de novo, see
United States v. Nolan, 199 F.3d 1180, 1184 (10th Cir. 1999), we completely
agree.
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Amendment rights. 14
The district court found, however, that Mr. Mascarenas was
given the required Miranda warnings not once, not twice, but three times, and that
Mr. Mascarenas made his incriminating statements only after he was properly
mirandized and voluntarily waived his rights. See Order & Mem. of Decision at
35, Appellee’s Br. at Attachment 1. Having thoroughly reviewed the entire record
in this case, 15
we conclude that the testimony below cannot support Mr.
Mascarenas’ claim on appeal, and affirm the district court’s findings. 16
As such,
14
Mr. Mascarenas further asserts that the incriminating statements were
obtained as a “‘direct exploitation[] of the primary illegality of the initial search’”
of his residence, and that they therefore should have been suppressed as the
“fruit[] of the poisonous tree.” Appellant’s Opening Br. at 17 (quoting Wong Sun
v. United States, 371 U.S. 471 (1963)). We have already determined that the
search of Mr. Mascarenas’ home was legal. See supra Section (A)(2). As such,
his incriminating statements need not be suppressed on this ground.
In reviewing a district court’s denial of a motion to suppress incriminating
15
statements under Miranda we review findings of “historical fact” for clear error,
but review legal issues de novo. United States v. Erving L., 147 F.3d 1240, 1244-
1246 (10th Cir. 1998).
16
In his reply brief, Mr. Mascarenas admits that at least some of his
incriminating statements “were made after Miranda warnings were provided,” but
asserts that “initial statements made by Mr. Mascarenas including but not limited
to his comment of a ‘wake-up call’ [were] made before Miranda warnings were
provided.” Appellants’ Reply Br. at 7. This assertion blatantly mischaracterizes
the record. At trial, Detective Joel Bell testified that Mr. Mascarenas made the
“wake-up call” statement “in the bedroom” after he had been given Miranda
warnings for the third time. Tr. of Trial Proceedings, November 28, 2000, at 122,
124, App., Vol. II, at 467, 469. This testimony was corroborated by the testimony
of Sergeant Ernie Martinez, id. at 168-69, App., Vol. II, at 513-14, and we find
nothing in the record to support Mr. Mascarenas’ contrary assertions on appeal.
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we need not decide whether or not he was “in custody” at the time of the
questioning.
II. Hearsay
Mr. Mascarenas contends that the district court erroneously admitted
certain hearsay statements made by Michael Mascarenas during the October 6
drug transaction with Mr. Heath as statements of a co-conspirator under Rule
801(d)(2)(E) of the Federal Rules of Evidence. “We review the district court’s
decision to admit statements of a co-conspirator for abuse of discretion,” United
States v. Eads , 191 F.3d 1206, 1210 (10th Cir. 1999), reviewing its factual
findings for clear error. United States v. Lopez-Gutierrez , 83 F.3d 1235, 1242
(10th Cir. 1996).
Under rule 801(d)(2)(E), co-conspirator statements are not considered
hearsay and are thus properly admitted if the district court finds, by a
preponderance of the evidence, that (i) “a conspiracy existed,” (ii) “both the
declarant and the defendant against whom the declaration is offered were
members of the conspiracy,” and (iii) the statement “was made in the course of
and in furtherance of the conspiracy.” Eads , 191 F.3d at 1210 (internal quotation
omitted). Prior to the admission of the disputed evidence, the district court held a
hearing, outside the presence of the jury, and found that there was sufficient
-30-
evidence of a conspiracy between Mr. Mascarenas and his son, Michael, and that
the statements Michael made to Mr. Heath on October 6 were made in furtherance
of this conspiracy. Having reviewed the entire record, we hold that the district
court’s factual findings in this regard were not clearly erroneous, and that it did
not abuse its discretion in admitting Michael’s statements under Rule
801(d)(2)(E). 17
17
Mr. Mascarenas’ primary argument on appeal is that the district court’s
findings were clearly erroneous because “if the Government had sufficient proof
of Mr. Mascarenas’ conspiratorial conduct with Michael Mascarenas, he would
have been charged in the conspiracy count.” Appellant’s Reply Br. at 8. This
argument lacks merit. Although the prosecution’s failure to charge Mr.
Mascarenas with conspiracy was inexplicable, it has no impact on the hearsay
analysis. As Mr. Mascarenas himself acknowledges, see id., we have routinely
held that a defendant need not be charged with a conspiracy to have co-
conspirator statements admitted against him under Rule 801(d)(2)(E). See, e.g.,
United States v. Kaatz, 705 F.2d 1237, 1244 (10th Cir. 1983). Regardless of the
charge, there was more than enough evidence of a conspiracy involving Mr.
Mascarenas and his sons to allow the admission of Michael’s statements under
Rule 801(d)(2)(E).
Mr. Mascarenas also asserts that the admission of these statements violated
his Sixth Amendment right to confront witnesses against him, by denying him
“access to conduct cross-examination on Michael Mascarenas.” Appellant’s
Opening Br. at 26. Because we hold that the evidence in this case meets the
requirements for admission under Rule 801(d)(2)(E), it also satisfies the
requirements of the Confrontation Clause. See United States v. Molina, 75 F.3d
600, 603 (10th Cir. 1996) (recognizing that “the requirements for admission of
evidence under Federal Rule of Evidence 801(d)(2)(E) are identical to the
requirements of the Confrontation Clause, so if the evidence meets the
requirements of Rule 801(d)(2)(E), the evidence is constitutionally admissible”).
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III. Sufficiency of the Evidence
Mr. Mascarenas’ final contention is that the evidence at trial was
insufficient to sustain the jury verdict rendered against him. “In considering a
challenge to the sufficiency of the evidence, we review the entire record in the
light most favorable to the government to determine whether the evidence is such
that a reasonable jury could find the defendant guilty beyond a reasonable doubt.”
United States v. Dirden , 38 F.3d 1131, 1142 (10th Cir. 1131). “We consider both
direct and circumstantial evidence,” as well as reasonable inferences drawn
therefrom, “accept[ing] the jury’s resolution of conflicting evidence and its
assessment of the credibility of witnesses.” Id.
Mr. Mascarenas’ first count of conviction was for aiding and abetting in the
distribution of cocaine, based on his involvement with the October 6 drug
transaction between Michael and Mr. Heath. In challenging his conviction on this
count, Mr. Mascarenas does not dispute that there was in fact a drug transaction
between Michael and Mr. Heath, but simply asserts that there was insufficient
evidence of his own involvement to prove that he aided and abetted his son in
completing the deal, asserting that he was an innocent bystander in the
transaction. We are not persuaded.
“To be guilty of aiding and abetting, a defendant must willfully associate
with the criminal venture and aid such venture through affirmative action.”
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United States v. Jones , 44 F.3d 860, 869 (10th Cir. 1995). The evidence
introduced at trial was sufficient to support the jury’s conclusion that Mr.
Mascarenas was actively involved in the transaction. Among other things, the
evidence demonstrated that (i) Mr. Mascarenas transported Michael to Veronica’s
and later to U&H Chile, (ii) U&H Chile was used, at least in part, for the
packaging of cocaine, (iii) Michael did not have enough cocaine to give Mr.
Heath before he went to U&H Chile with his father, and (iv) Michael delivered
the cocaine to Mr. Heath just minutes after he and his father left U&H Chile.
Finally, the evidence demonstrated that Michael gave the purchase money to his
father, and that the federally marked bills used by Mr. Heath to purchase the
cocaine were found in Mr. Mascarenas’ possession just three days later.
Mr. Mascarenas’ second count of conviction was for possession of cocaine
with intent to distribute, based on the large amounts of cocaine and money found
in his residence during the October 9 search. Mr. Mascarenas asserts that there is
insufficient evidence of possession because “his home was frequented by many
people including his sons Anthony and Michael Mascarenas,” and that “[t]his type
of exposure creates doubt as to who in the home actually possessed the cocaine
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that was discovered.” 18
Appellant’s Opening Br. at 32. Again, however, we are
not persuaded.
The evidence was sufficient to support the jury’s conclusions that Mr.
Mascarenas knowingly possessed cocaine found at his residence. His own
statements during the search demonstrate that he was fully aware of the presence
of drugs in his home. Moreover, the evidence demonstrated that the drugs were
not found in the common areas of the home, or areas of the home used by people
other than Mr. Mascarenas himself, but in two bedrooms where Mr. Mascarenas
and his wife lived and slept on a regular basis. Although there was certainly
evidence supporting Mr. Mascarenas’ claim that others, particularly his sons, had
unfettered access to the home, the existence of such evidence does not render the
jury verdict erroneous. See United States v. Edmonson , 962 F.2d 1535, 1547-48
(10th Cir. 1992) (“[T]he evidence may be sufficient even though it does not
exclude every reasonable hypothesis of innocence or [is not] wholly inconsistent
with every conclusion of guilt [.] A jury is free to choose among reasonable
18
Mr. Mascarenas further asserts that because his conviction on this count
rested almost entirely on evidence obtained as a result of the October 9 search of
his residence, it must “be vacated” if “this Court agrees with Mr. Mascarenas’
assertion that the search warrant was invalid.” Appellant’s Opening Br. at 32.
We have already determined that the search of Mr. Mascarenas’ home was legal,
and the that the evidence obtained therefrom was properly admitted against Mr.
Mascarenas. See supra Section (A)(2). As such, his conviction need not be
vacated on this ground.
-34-
constructions of evidence.”) (internal quotations omitted). The jury apparently
discredited this evidence, or gave it less weight, and we will not second guess the
jury’s decisions in this regard.
CONCLUSION
We hold that the district court properly denied Mr. Mascarenas’ motions to
suppress (i) evidence obtained as a result of wiretap 98-WT-7-Z and its extension,
(ii) evidence obtained as a result of the search of Mr. Mascarenas’ residence and
U&H Chile, and (iii) incriminating statements Mr. Mascarenas made during the
search of his residence. We further hold that the district court properly admitted
hearsay statements of Michael Mascarenas as statements of a co-conspirator under
Rule 801(d)(2)(E), and that there was sufficient evidence to sustain both counts of
Mr. Mascarenas’ conviction. Accordingly, the conviction on both counts is
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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