United States v. Gurrola-Rodriguez ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 6, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 06-4192
v. Utah
EFREN GURROLA-RODRIGUEZ, (D.C. No. 2:04-CR-769-TC)
also known as Efren Gurrola,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, McWILLIAMS, and GORSUCH, Circuit Judges.
Efren Gurrola-Rodriguez (Gurrola) moved to suppress evidence obtained
from the wiretap of his telephone claiming the government failed to prove the
statutory necessity requirement. The district court denied the motion. We affirm.
I. BACKGROUND
During the spring of 2004, Special Agent David Crosby with the Drug
Enforcement Administration (DEA) began investigating a woman suspected of
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
being a methamphetamine drug dealer in the Salt Lake City region of Utah.
Through a confidential source, Agent Crosby learned that Silvia Uribe was the
dealer. Over the next several months, Agent Crosby conducted multiple
undercover controlled buys with Uribe and her husband Alberto Camerana. With
each successive transaction Agent Crosby would increase the amount purchased
and attempt to place time pressures on Uribe in order to discover her source of
supply. Additionally, undercover officers obtained records detailing the calls
made by Uribe and Camerana on their telephones and placed a global positioning
satellite tracking device on Uribe’s car.
By mid-August the DEA was still unable to determine Uribe’s source of
supply. The DEA submitted an application for a wiretap of two phones
subscribed to Camerana. Agent Crosby’s supporting affidavit detailed the
investigation up to that point and explained a wiretap was necessary to discover
Uribe’s supplier. The wiretap application was granted.
In a relatively short period of time the DEA was able to determine through
the use of the wiretaps that Gurrola was connected to Uribe and Camerana’s drug
dealing. After monitoring several calls placed between Uribe and her suspected
supplier, the DEA was able to isolate the phone number being used by her
supplier. Physical surveillance established the number was being used by
Gurrola. 1 On September 13, 2004, the DEA submitted an application for a
1
The number was listed under another person’s name.
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wiretap of the phone connected to that number and identified Gurrola as one of
the targets of the investigation. The reviewing court approved the application.
Five additional wiretap applications targeting Gurrola were subsequently
submitted and approved.
After several months of continued investigation, the DEA was unable to
penetrate the group further. A fourteen-count indictment was filed on November
18, 2004, naming six defendants including Uribe, Camerana and Gurrola. Gurrola
was only named in Count 7, charging him with conspiracy to distribute 500 grams
or more of methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C.
§§ 841(a)(1), 846. Gurrola filed a motion in limine to suppress evidence obtained
through the several wiretaps on the telephone used by him. Gurrola argued, inter
alia, the government failed to meet the statutory requirement of proving the
wiretaps were necessary. Gurrola requested a hearing in order to prove the
government failed to meet its burden of necessity, claiming the affidavits in
support of the wiretap applications were false or deliberately misleading. The
district court held an evidentiary hearing and denied Gurrola’s motion to
suppress. It concluded each of the wiretap applications targeting Gurrola was
supported by a sufficient showing of necessity.
A jury convicted Gurrola and he was sentenced to 121 months
imprisonment. He appeals generally from that judgment and sentence, but in
particular from the denial of his motion to suppress.
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II. DISCUSSION
When the government seeks to obtain a wiretap, it must provide to the court
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(1)(c). If the judge is
convinced, it may issue an ex parte order authorizing the wiretap. See 18 U.S.C.
§ 2518(3)(c).
Gurrola argues the government failed to prove the wiretap of his phone was
necessary. “We review for an abuse of discretion a district court’s determination
that a wiretap was necessary.” United States v. Ramirez-Encarnacion, 291 F.3d
1219, 1222 (10th Cir. 2002). 2 The “defendant bears the burden of proving that a
wiretap is invalid once it has been authorized.” Id. “If a defendant succeeds in
showing that the necessity requirement was not met, evidence seized pursuant to
the wiretap must be suppressed.” United States v. Cline, 349 F.3d 1276, 1280
(10th Cir. 2003).
“The purpose of the ‘necessity’ requirement is to ensure that the relatively
intrusive device of wiretapping is not resorted to in situations where traditional
2
Gurrola argues there is a conflict of authority in this Circuit regarding the
appropriate standard of review. This conflict was resolved in the en banc
footnote to Encarnacion, 291 F.3d at 1222 n.1. “Although we examine de novo
whether ‘a full and complete statement’ was submitted meeting [statutory]
requirements, we review the conclusion that the wiretap[ ] [was] necessary in
each situation for an abuse of discretion.” Id. (quoting United States v.
Armendariz, 922 F.2d 602, 608 (10th Cir. 1990)).
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investigative techniques would suffice to expose the crime.” United States v.
Castillo-Garcia, 117 F.3d 1179, 1187 (10th Cir. 1997), overruled on other
grounds by Encarnacion, 291 F.3d at 1222 n.1. Generally, normal investigative
procedures include:
(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.
Id. “[T]he government may obtain a wiretapping warrant without trying any other
methods of investigation, if it demonstrates that normal investigatory techniques
reasonably appear to be unlikely to succeed if tried, or to be too dangerous to
try.” Id.Gurrola does not claim the first wiretap application of Uribe and
Camerana’s phones was improper. Rather, he argues the second wiretap –
obtained on September 13, 2004 – and its fruits should have been suppressed by
the district court because the narcotics agents had not utilized normal
investigative techniques before seeking the wiretap. 3 Relying on United States v.
3
As part of his argument to the district court and on appeal, Gurrola
asserts the information contained in the government’s wiretap application was
false or deliberately misleading because it grafted investigative efforts prior to the
first wiretap and implied such investigation was previously targeted against
Gurrola. Ordinarily, when a defendant provides sufficient information disputing
the veracity of a government’s wiretap application, the defendant is entitled to a
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Mondragon, Gurrola argues the affidavit in support of his phone’s wiretap lacked
the requisite analysis of alternative investigative procedures which were used or
considered by law enforcement against him. 52 F.3d 291 (10th Cir. 1995). In
Mondragon, we held a second successive affidavit completely failed to address
necessity and should have been suppressed. Gurrola also relies on United States
v. Carnerio, in which the Ninth Circuit found successive wiretaps invalid because
of a failure by the government to show which particular investigative steps were
taken as to each new potential wiretap subject. 861 F.2d 1171, 1183 (9th Cir.
1988). Both cases are distinguishable from this one. The affidavit in support of
the wiretap of Gurrola’s telephone more than adequately addressed the
government’s investigation of Gurrola prior to the wiretap request and
demonstrated why a wiretap was necessary.
hearing to challenge the truthfulness of factual statements made in the supporting
affidavit. See United States v. Green, 175 F.3d 822, 828 (10th Cir. 1999). It is
the defendant’s burden to overcome the presumption that an authorized wiretap
was proper. Id.The district court held this threshold showing was not met. Gurrola has not
appealed from this holding, but he continues to argue the statements in the
affidavits are false or deliberately misleading. Such perfunctory arguments are
insufficient to overcome the affidavit’s presumptive facial validity. Accordingly,
we limit our review to whether the district court correctly found the wiretap of
Gurrola’s phone was necessary based on facially sufficient affidavits. As part of
our review, we consider whether the government met its burden to prove the
wiretap targeting the phone used by Gurrola was necessary. Castillo-Garcia, 117
F.3d at 1188 (“The statements [in the affidavit] must be factual in nature and they
must specifically relate to the individuals targeted by the wiretap.”).
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A. Prior Investigative Efforts
The affidavit in question identified Uribe, Camerana and Gurrola as targets
of the wiretap application and discovering Gurrola’s source of supply as one of its
objectives. It identified several instances in which traditional investigative and
enhanced procedures were utilized. The affidavit discussed successful visual and
aural surveillance of Gurrola which identified him as the suspected user of the
targeted telephone number and described the conversations between Uribe and
Gurrola resulting from the first wiretap. For example, on one occasion, an officer
observed Gurrola leaving Uribe’s house, called the targeted phone number,
observed Gurrola pickup the call and hangup when no one responded. The officer
was able to identify Gurrola as the phone’s user through the registration of the
vehicle he was driving and the photo on his drivers license.
The affidavit detailed the debriefing of a confidential source who was able
to provide information of Gurrola’s involvement in the distribution of
methamphetamine. The affidavit also provided information summarizing the
content of Gurrola’s phone toll records received pursuant to an administrative
subpoena. Significantly, it identified the number of calls placed from Gurrola’s
phone to Uribe and Camerana’s home phone which was not targeted by the
original wiretap.
B. Futility or Danger of Continuing Normal Investigative Activities
The affidavit discussed the limited nature of continuing the traditional
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methods being used. Although recognizing valuable information was obtained
from physical surveillance, the affidavit discussed how, without capturing vocal
communications, visual surveillance would not lead to the identity of Gurrola’s
supplier. Because many of the meetings between Uribe and Gurrola took place
inside, their interactions would be out of law enforcement’s view and the
significance of the meeting lost. The affidavit recognized the usefulness of
undercover purchases to identify Uribe and Camerana, but detailed how Uribe and
Camerana would not discuss their supplier with the confidential source. It
discussed Uribe and Camerana’s growing suspicion of the confidential source,
who introduced the undercover agent to Uribe. No other person inside the
organization could be utilized as a confidential source without tipping the group
off to the investigation. 4
The affidavit also identified traditional methods which were not attempted
or would be too dangerous to try. It asserted the use of interviews or grand juries
would not be useful because the persons targeted would likely tip off the
organization. Many of the people identified as potential witnesses were illegal
aliens who used false names and the government’s ability to correctly identify
them was deficient. Given Uribe, Camerana and Gurrola’s level of culpability,
4
By the time of the wiretap application, it was discovered that Uribe was
selling drugs to another dealer who knew the undercover agent was a police
officer. Should the group discover the undercover agent’s true identity it would
put the agent and the investigation at risk.
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immunity in exchange for cooperation would thwart the public policy of holding
them accountable for their illegal narcotic activities. The affidavit asserted the
use of search warrants would alert the organization to the investigation and bring
it to a premature close. At the time of the affidavit, it was not clear where or in
how many locations the drugs were being stored.
Dialed Number Recorders (DNR), as used against Uribe and Camerana, had
been valuable up to that point in the investigation, but would provide little help in
furthering the investigation of Gurrola or his supplier. Because a DNR provided
only a historical record of numbers dialed or received and the subscriber’s name
does not always match the user, the DNR information could not identify the
actual caller or the significance of the conversations. By way of example, the
affidavit relayed the telephone number Gurrola had been using was identified
numerous times on the DNR of Uribe’s phone, however, it was not until the
wiretap of her phone that the government discovered Gurrola’s number was not
being used by its subscriber.
In sum, the affidavit described in detail with particularity to Gurrola what
investigatory techniques were tried, the result, and why any unutilized method
was likely to be ineffective or dangerous. Consequently, the district court did not
abuse its discretion by concluding the wiretap was necessary.
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AFFIRMED.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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