United States v. Ernie Estrada , 904 F.3d 854 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50439
Plaintiff-Appellee,
D.C. No.
v. 5:14-cr-00107-VAP-44
ERNIE LEO ESTRADA, AKA
Youngster,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50492
Plaintiff-Appellee,
D.C. No.
v. 5:14-cr-00107-VAP-14
MARK ANTHONY RIOS, AKA
Sharky, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Argued and Submitted July 10, 2018
Pasadena, California
Filed September 18, 2018
2 UNITED STATES V. ESTRADA
Before: Marsha S. Berzon and N. Randy Smith, Circuit
Judges, and P. Kevin Castel,* District Judge.
Opinion by Judge N. R. Smith
SUMMARY**
Criminal Law
The panel affirmed the district court’s order denying a
motion by two defendants to suppress incriminating
statements intercepted by government wiretaps.
The panel held that the affidavits submitted by the FBI in
support of the wiretap authorization were reasonably detailed,
and did not contain a material misstatement or omission.
The panel also held that the district court did not abuse its
discretion in determining that the wiretaps were necessary.
The panel wrote that it was not illogical or implausible to
conclude that the possibility of using a high-level confidential
informant was unlikely to result in the successful prosecution
of every member of the conspiracy.
*
The Honorable P. Kevin Castel, United States District Judge for the
Southern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ESTRADA 3
COUNSEL
Jay L. Lichtman (argued), Los Angeles, California, for
Defendant-Appellant Ernie Leo Estrada.
William S. Harris (argued), Law Offices of Wm. S. Harris,
South Pasadena, California, for Defendant-Appellant Mark
Anthony Rios.
Elana Shavit Artson (argued) and Nathanial B. Walker,
Assistant United States Attorneys; Lawrence S. Middleton,
Chief, Criminal Division; Nicola T. Hanna, United States
Attorney; United States Attorney’s Office, Los Angeles,
California; for Plaintiff-Appellee.
OPINION
N.R. SMITH, Circuit Judge:
Ernie Estrada and Mark Rios (“Defendants”) challenge
the validity of a wiretap authorized by the district court.1 We
affirm the district court’s order denying Defendants’ motion
to suppress.
To obtain a wiretap, the government must submit an
affidavit containing inter alia “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). Here, the affidavits submitted by the Federal
1
The district court that presided over Defendants’ criminal cases is
the same district court that initially authorized the wiretaps.
4 UNITED STATES V. ESTRADA
Bureau of Investigation (“FBI”) in support of the wiretap
authorization were “reasonab[ly] detail[ed],” see United
States v. Garcia-Villalba, 585 F.3d 1223, 1229 (9th Cir.
2009), and did not contain a material misstatement or
omission, see United States v. Rivera, 527 F.3d 891, 898 (9th
Cir. 2008).
If the affidavit contains a “full and complete statement of
the facts,” the district court must determine in its discretion
whether the affidavit submitted by the government shows that
the wiretap is necessary given the possible effectiveness of
traditional investigative techniques.2 18 U.S.C. § 2518(1)(b)
& (3)(c).
In this case, the district court did not abuse its discretion
in determining that the FBI had made the requisite showing
of necessity. In particular, it was not “illogical” or
“implausible” to conclude that the possibility of using a high-
level confidential informant was unlikely to result in the
successful prosecution of every member of the conspiracy.
See United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir.
2009) (en banc). The district court’s conclusion was
supported by the facts in the record: (1) the informant
cooperated only after he was arrested in a separate incident
and may have been unwilling to provide further assistance out
of fear of retaliation; (2) the informant could have
jeopardized the investigation by tipping off his co-
2
As shorthand, we have referred to this standard as the “necessity
requirement,” but the standard does not require that the wiretap be
“necessary” in the strict sense of the word. See, e.g., Garcia-Villalba,
585 F.3d at 1228 (“The necessity requirement can be satisfied by a
showing in the application that ordinary investigative procedures,
employed in good faith, would likely be ineffective in the particular case.”
(quotation marks and citations omitted)).
UNITED STATES V. ESTRADA 5
conspirators; (3) the informant could have misled the
investigators in an attempt to thwart the investigation or for
personal gain; and (4) without the corroborating evidence
collected using the wiretap, the informant’s testimony may
not have resulted in the successful prosecution of every
member of the conspiracy.
I. FACTUAL AND PROCEDURAL BACKGROUND
The FBI began its investigation into the Westside
Verdugo (a street gang subordinate to the Mexican Mafia) in
early 2006.3 One of the primary goals of the investigation was
to determine the nature, extent, and methods of the Westside
Verdugo’s racketeering and narcotics-trafficking activities,
including “the identities and roles of the suppliers,
accomplices, aiders and abettors, co-conspirators, and
participants.”
During the course of the investigation, the FBI became
familiar with the operations of the Westside Verdugo and its
connection with the Mexican Mafia. The FBI discovered that,
through violence and other means, the Westside Verdugo had
controlled the streets of San Bernardino, California and other
areas within San Bernardino County for 40 years. The FBI
also became aware that the Mexican Mafia (with the help of
the Westside Verdugo) controlled the importation of drugs
into the southern California prison system. In fact, all
narcotics smuggled into the prisons were purportedly “taxed”
one-third of the total quantity by the Mexican Mafia. The
taxed quantities were then re-disbursed and sold with the
3
The facts in this section are drawn primarily from the August 26,
2010 affidavit submitted by Special Agent Matthew J. Tylman in support
of the FBI’s first wiretap application.
6 UNITED STATES V. ESTRADA
proceeds going to Mexican Mafia members and some
Westside Verdugo leaders. Westside Verdugo members
allegedly participated in narcotics trafficking, extortion of
non-gang drug dealers in their neighborhoods, and crimes of
violence intended to enhance the reputation of the gang and
to protect their territory from the encroachment of other gang
members.
As part of its investigation, the FBI sought to obtain
wiretaps4 on the telephones of several members of the
Westside Verdugo including Jonathan Brockus.5 On August
26, 2010, Special Agent Matthew J. Tylman submitted a 113-
page affidavit in support of the FBI’s request for wiretaps.
The affidavit explained that Brockus had been involved with
the Mexican Mafia and the Westside Verdugo since at least
2006. In fact, the affidavit revealed that Brockus played a
significant role in the Mexican Mafia’s drug distribution
activities in San Bernardino.
The affidavit also recounted recent interactions between
Brockus and law enforcement. On April 7, 2010, San
Bernadino Police officers conducted a routine traffic stop of
4
“Title III of the Omnibus Crime Control and Safe Streets Act of
1968, 18 U.S.C. §§ 2510–2520, allows law enforcement agencies to
conduct electronic surveillance of suspected criminal activities.” Garcia-
Villalba, 585 F.3d at 1227. “In a request for a court-authorized wiretap,
the government must provide an application that includes, inter alia, ‘a full
and complete statement as to whether or not other investigative procedures
have been tried and have failed or why they reasonably appear to be
unlikely to succeed if tried or to be too dangerous.’” United States v.
Canales Gomez, 358 F.3d 1221, 1224 (9th Cir. 2004) (quoting 18 U.S.C.
§ 2518(1)(c)).
5
Defendants challenge only the authorization of the wiretap related
to Jonathan Brockus.
UNITED STATES V. ESTRADA 7
Brockus and his girlfriend. During the traffic stop, officers
found $2,200 in cash and arrested Brockus’s girlfriend
because she was found in possession of methamphetamine.
The officers also arrested Brockus and transported him to a
detention center, where he was investigated further. During
the subsequent custodial interrogation, Brockus claimed that
the methamphetamine belonged to him and that his girlfriend
should not go to jail. Brockus told the officers that he was the
current Westside Verdugo “shot-caller,” which involved
collecting money from narcotics sales on behalf of Mexican
Mafia members as well as “secretary work,” which involved
finding out, through incarcerated contacts, who controlled the
“yards” at a particular prison. Brockus also told the officers
that he was recently contacted by a man known to him only
as “Champ.” Champ told Brockus that he was “collecting
taxes” on behalf of Mexican Mafia member Sal Hernandez.
Brockus told the officers that he had collected $1,000 from
Westside Verdugo members and that he was supposed to give
the money to Champ. Brockus was released from custody
when he agreed to assist law enforcement authorities by
identifying Champ.
On April 8, 2010, Brockus participated in a controlled
delivery of $1,000 to Champ. After listening to a phone call
between Brockus and Champ through Brockus’s speaker
phone, law enforcement provided Brockus with $1,000 to
conduct a controlled delivery. Brockus then drove away to
complete the controlled delivery while officers conducted
surveillance. However, instead of driving immediately to the
agreed upon location, Brockus first drove home.
Approximately forty-five minutes later, Brockus left his
home and drove around for about one hour, using what law
enforcement described as counter-surveillance techniques.
These counter-surveillance efforts prevented the officers from
8 UNITED STATES V. ESTRADA
covertly following and observing Brockus the whole time. As
a result, the officers contacted Brockus by phone. Brockus
stated that he was on his way to meet Champ at the agreed
upon location. The controlled delivery was successfully
completed, and the officers identified “Champ” as Randy
Avalos.
Based on this incident and other facts revealed during the
investigation, Special Agent Tylman made the following
observations in the wiretap affidavit:
I believe that interviewing Brockus and the
other Target Subjects would be unproductive
because these individuals would be
uncooperative, especially due to the fear of
physical retaliation that the [Westside
Verdugo] and [the Mexican Mafia] are known
to impose on those who cooperate with law
enforcement, including death. Also, although
Brockus had cooperated with law enforcement
during a custodial interview on April 7, 2010,
as it pertained to his (Brockus) collection of
money from [Westside Verdugo] gang
members. [sic] I believe based on my
involvement in this investigation and my
training and experience that Brockus
minimized his role in an on-going criminal
conspiracy. For example, during the custodial
interview Brockus admitted that he does
collect money from [Westside Verdugo] gang
members involved in the distribution of
narcotics; however, Brockus was not
forthcoming about the amounts of money he
collects, when he collects the money and from
UNITED STATES V. ESTRADA 9
whom he collects the money . . . . Brockus
also never told the interviewing [Task Force
Officers] about the types of narcotics being
distributed in [Westside Verdugo] gang
controlled neighborhoods or the individuals
involved in transporting the narcotics to these
neighborhoods. In addition, Brockus to date
has never contacted law enforcement
authorities to discuss his (Brockus) jail
conversations with Sal Hernandez.6 I also
believe based on my involvement in this
investigation and my training and experience
that Brockus, if contacted by law enforcement
agents, will provide misinformation about
rival gang members in an effort to mask his
on-going criminal activities and direct law
enforcement resources in a direction that
would allow him (Brockus) to easily avert law
enforcement detection. Based on the above
reasons I believe conducting these interviews
poses the risk of alerting associates,
accomplices, and other conspirators to the
existence of the investigation and thereby
make them more cautious and more difficult
to investigate. For these reasons, I believe
interviews of subjects or associates at this
point in the investigation will not further the
investigation’s goals.
6
In May 2010, law enforcement obtained two recorded jail calls from
Hernandez to Brockus in which the two discussed various illegal activities
related to the Westside Verdugo and the Mexican Mafia.
10 UNITED STATES V. ESTRADA
Based on Special Agent Tylman’s affidavit, the district court
authorized a wiretap on Brockus’s telephone.
On July 8, 2010, law enforcement interviewed Brockus
regarding the murder of Daniel Martinez. Brockus stated that
he had no solid information regarding the identity of the
murderer, but he “surmised” that Andrew Rodriguez (a
member of the Mexican Mafia) may have ordered the murder.
The district court renewed the wiretap authorization on
September 26, 2010, October 29, 2010, and December 6,
2010. The renewals were each granted based on a new
affidavit by Special Agent Tylman. However, these affidavits
did not mention the July interview.
As a result of the wiretap, the FBI intercepted
incriminating conversations between Brockus and various
members of the Westside Verdugo, including Defendants. On
September 13, 2010, Estrada and Brockus exchanged a series
of text messages in which Estrada attempted to purchase
heroin from Brockus. Between October 14, 2010, and
October 19, 2010, the FBI intercepted another conversation
between Brockus and Estrada. In that conversation Brockus
told Estrada that his heroin supplier had been arrested and
that he needed to find a new one. Estrada then agreed to
contact a supplier in Los Angeles. Estrada offered to provide
Brockus a sample of the supplier’s heroin before Brockus
decided to purchase a large quantity. The remainder of the
conversation shows that Estrada went to Los Angeles,
purchased two ounces of heroin from the supplier, and
delivered it to Brockus in San Bernardino. On December 26,
2010, the FBI intercepted a series of text messages between
Mark Rios and Brockus. At the time, Rios was incarcerated
at the California Rehabilitation Center. Using coded
UNITED STATES V. ESTRADA 11
language, the messages discussed the collection of drug
proceeds at the prison yard. Then, on January 3, 2011, Rios
spoke with Brockus over the phone regarding the distribution
of drug proceeds and smuggled cell phones to three Mexican
Mafia members incarcerated at the California Rehabilitation
Center. This conversation was also intercepted pursuant to the
wiretap on Brockus’s cell phone.
On January 11, 2011 (after the expiration of the wiretap),
the FBI interviewed Brockus regarding the drug conspiracy
investigation. When he was informed of the purpose of the
interview, Brockus provided information helpful to the
investigation. Brockus eventually testified before a grand
jury. The grand jury returned an indictment, charging
Defendants (along with 50 other individuals) with conspiracy
to distribute and possession with intent to distribute heroin
and methamphetamine.
Prior to trial, Defendants sought to suppress the
incriminating statements that had been intercepted by the
government. They claimed that the affidavits supporting the
wiretap applications were deficient, but the district court
denied the motion. Consequently, Defendants pleaded guilty
and reserved the right to appeal the denial of their motion to
suppress.
12 UNITED STATES V. ESTRADA
II. DISCUSSION
A. The Affidavits Contained a Full and Complete
Statement of the Facts
On appeal, Defendants argue that the affidavits contained
material omissions. We disagree.7
“We review de novo whether the information submitted
in an affiant’s affidavit amounts to ‘a full and complete
statement of the facts . . . .’” United States v. Canales Gomez,
358 F.3d 1221, 1224 (9th Cir. 2004) (quoting 18 U.S.C.
§ 2518(1)(c)). Regarding an application for a wiretap, the
affidavit is sufficient as long as it “as a whole speaks in case-
specific language” even if “some language in the affidavit
may be conclusory or merely describe[s] the inherent
limitations of certain investigatory techniques.” United States
v. Garcia-Villalba, 585 F.3d 1223, 1230 (9th Cir. 2009).
Importantly, even when additional information could have
been included, the affidavit is sufficient as long as it is
“reasonab[ly] detail[ed].” Id. at 1229.
A false statement or omission in a supporting affidavit
will invalidate a warrant only if the omission is material.
United States v. Rivera, 527 F.3d 891, 898 (9th Cir. 2008). To
determine whether a false statement is material, “the
reviewing court should set the affidavit’s false assertions to
one side and then determine whether the affidavit’s remaining
7
We have jurisdiction to review the district court’s denial of the
motion to suppress. 28 U.S.C. § 1291. “We review de novo a district
court’s wiretap suppression decision.” United States v. Reyna, 218 F.3d
1108, 1110 (9th Cir. 2000).
UNITED STATES V. ESTRADA 13
content is still sufficient to establish [necessity].” See United
States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir. 1985).
1.
Defendants first argue that the affidavits improperly
omitted information regarding the availability of state
wiretaps. We disagree.
An application for a federal wiretap need not discuss the
availability of state wiretaps, because “[t]he purpose of the
necessity requirement is to ensure that wiretapping is not
resorted to in situations where traditional investigative
techniques would suffice to expose the crime.” Garcia-
Villalba, 585 F.3d at 1227 (quoting United States v. Carneiro,
861 F.2d 1171, 1176 (9th Cir. 1988)). A wiretap authorized
by a state court is not a traditional investigative technique any
more than a wiretap authorized by a federal court is a
traditional investigative technique. Although the procedures
for obtaining a federal and state wiretap may differ, Villa v.
Maricopa County, 865 F.3d 1224, 1230 (9th Cir. 2017), cert.
denied, 138 S. Ct. 1696 (2018), there is no meaningful
difference in the level of intrusiveness. Indeed, because both
methods are equally intrusive, they are subject to the same
minimum requirements under federal law. See id.; 18 U.S.C.
§§ 2516, 2518. Thus, failing to discuss the availability of
state wiretaps was not a material omission.
2.
Defendants next argue that the affidavits omitted
information regarding Brockus. This argument is similarly
unavailing.
14 UNITED STATES V. ESTRADA
The affidavits at issue in this case “did more than recite
the inherent limitations of using confidential informants;
[they] explained in reasonable detail why each confidential
source or source of information was unable or unlikely to
succeed in achieving the goals of the . . . investigation. That
is sufficient.” Rivera, 527 F.3d at 899. The affidavits
disclosed that Brockus had cooperated with the Government
previously in a limited way, and gave specific reasons why
using Brockus as an informant as to the conspiracy generally
was not a viable option going forward.
Defendants, however, fault Special Agent Tylman for
failing to mention in his warrant affidavit the July 2010
interview regarding the murder of Daniel Martinez.
“However, we have not required such a level of detail in a
wiretap application.” Id. Thus, “we conclude that this failure,
given the level of detail in the affidavit as a whole, does not
render the affidavit inadequate for purposes of § 2518(1)(c).”
Id. Even if failing to discuss the interview were an omission,
it was not material. The interview would have provided very
little evidence that Brockus was willing and able to assist the
FBI in taking down the Westside Verdugo and related
Mexican Mafia members. In the interview, Brockus
“surmised” that a Mexican Mafia member may have ordered
the murder of Martinez. If in fact Brockus knew who had
ordered the murder, then his cooperation was less than
complete and would indicate that he was not willing to
cooperate. On the other hand, if Brockus did not know who
ordered the murder, he likely didn’t have access to enough
information to bring down the conspiracy because he have
didn’t have complete knowledge of the Mexican Mafia's
activities in San Bernardino. Thus, as will be discussed
below, the affidavits would have been “sufficient to establish
UNITED STATES V. ESTRADA 15
[necessity]” even if the interview had been discussed in the
affidavits. See Ippolito, 774 F.2d at 1485.
B. The District Court did not Abuse Its Discretion in
Authorizing the Wiretap
We also disagree with Defendants’ argument that the
district court abused its discretion in determining that the
wiretaps were necessary.
“The judge authorizing a wiretap has considerable
discretion.” United States v. Brone, 792 F.2d 1504, 1506 (9th
Cir. 1986). Thus, a district court’s determination 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(3)(c), “is reviewed under
an abuse of discretion standard.” Canales Gomez, 358 F.3d at
1225. A district court abuses its discretion if it fails to apply
the correct legal standard or if its application of the correct
standard is “illogical, implausible, or without support in
inferences that may be drawn from facts in the record.”
United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009)
(en banc).
“[T]he wiretap should not ordinarily be the initial step in
the investigation, but . . . law enforcement officials need not
exhaust every conceivable alternative before obtaining a
wiretap.” United States v. McGuire, 307 F.3d 1192, 1196–97
(9th Cir. 2002) (footnote omitted). Thus, “[w]hen reviewing
necessity we employ a ‘common sense approach’ to evaluate
the reasonableness of the government’s good faith efforts to
use traditional investigative tactics or its decision to forego
such tactics based on the unlikelihood of their success or the
probable risk of danger involved with their use.” United
16 UNITED STATES V. ESTRADA
States v. Gonzalez, Inc., 412 F.3d 1102, 1112 (9th Cir. 2005),
amended on denial of reh’g, 437 F.3d 854 (9th Cir. 2006)
(quoting United States v. Blackmon, 273 F.3d 1204, 1207 (9th
Cir. 2001)). “The necessity for the wiretap is evaluated in
light of the government’s need not merely to collect some
evidence, but to ‘develop an effective case against those
involved in the conspiracy.’” United States v. Decoud,
456 F.3d 996, 1007 (9th Cir. 2006) (quoting Brone, 792 F.2d
at 1506). An “effective case” is a case in which the
government has “evidence of guilt beyond a reasonable
doubt.” McGuire, 307 F.3d at 1198.
Depending on the circumstances, the use of confidential
informants can be an unreliable investigative method.
“Indeed, we have previously explained that ‘[t]he use of
informants to investigate and prosecute persons engaged in
clandestine criminal activity is fraught with peril.’” Canales
Gomez, 358 F.3d at 1226 (alteration in original) (quoting
United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir.
1993)). “Not only common sense but also our precedent
confirms that the existence of informants and undercover
agents does not preclude a necessity finding.” McGuire,
307 F.3d at 1199. Thus, “[t]he government need not show
that informants would be useless in order to secure a court-
authorized wiretap.” Canales Gomez, 358 F.3d at 1226.
Moreover, the FBI was not conducting an ordinary
criminal investigation; this was an investigation into an
elaborate and widespread drug distribution conspiracy. “[T]he
government is entitled to more leeway in its investigative
methods when it pursues a conspiracy.” McGuire, 307 F.3d
at 1198. “Unlike individual criminal action, which comes to
an end upon the capture of the criminal, collective criminal
action has a life of its own. Like the Hydra of Greek
UNITED STATES V. ESTRADA 17
mythology, the conspiracy may survive the destruction of its
parts unless the conspiracy is completely destroyed.” Id. at
1197–98. In addition, “any previous success from the use of
confidential informants is . . . less persuasive in the context of
an investigation of criminal conspiracy.” Canales Gomez,
358 F.3d at 1226. Thus, “we have ‘consistently upheld
findings of necessity where traditional investigative
techniques lead only to apprehension and prosecution of the
main conspirators, but not to apprehension and prosecution of
. . . other satellite conspirators.” McGuire, 307 F.3d at 1198(alteration in original) (quoting United States v. Torres,
908 F.2d 1417, 1422 (9th Cir. 1990)).
Given this precedent, the district court did not abuse its
discretion in concluding that using Brockus as a confidential
informant was unlikely to result in the successful prosecution
of each and every member of the conspiracy. 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.8
However, the affidavit gave three specific reasons why using
Brockus as a confidential informant was unlikely to work
particularly well.
First, Special Agent Tylman believed that Brockus would
be uncooperative due to the fear of physical retaliation by the
Mexican Mafia. We have recognized that using confidential
informants to investigate the Mexican Mafia is particularly
8
It should be noted that, although Brockus was the leader of the
Westside Verdugo, he was not the leader of the drug distribution
conspiracy. The Westside Verdugo–including Brockus–reported to the
Mexican Mafia.
18 UNITED STATES V. ESTRADA
problematic. United States v. Rodriguez, 851 F.3d 931, 942
(9th Cir. 2017). Indeed, we have approved of the
Government’s blanket explanation that confidential
informants could not be used, because “the Mexican Mafia
‘ruthlessly punishes law enforcement cooperators,’ and the
organization’s reputation ‘has caused and will continue to
cause potential cooperators . . . to resist recruitment by law
enforcement.’” Id. (alteration in original).
This justification applies to Brockus despite his past
cooperation. Brockus’s cooperation was minimal and was
obtained after he had been arrested. He participated in one
controlled delivery of drug money in an apparent exchange
for his girlfriend not being charged with a serious crime.
Those circumstances do not indicate that Brockus would have
cooperated of his own accord in a broad investigation of the
Westside Verdugo and the Mexican Mafia conspiracy. The
July 2010 interview also does not demonstrate that Brockus
was willing to cooperate because he did not give law
enforcement any reliable information. Instead, he merely
“surmised” that a certain member of the Mexican Mafia
might have been responsible for ordering the murder of
Daniel Martinez. The fact that the government eventually
sought Brockus’s cooperation after the expiration of the
wiretaps is not contrary to this reasoning. At that point, the
government had a great deal of information that directly
incriminated Brockus.
Second, if Brockus refused to cooperate, asking him to do
so could have endangered the entire investigation. See Torres,
908 F.2d at 1422 (finding that certain investigative techniques
could not be used, because they might alert the suspects to an
ongoing investigation). As Special Agent Tylman noted,
interviewing Brockus about the ongoing investigation would
UNITED STATES V. ESTRADA 19
“pose[] the risk of alerting associates, accomplices, and other
conspirators to the existence of the investigation and thereby
make them more cautious and more difficult to investigate.”
In fact, as the “shot caller” of the Westside Verdugo, Brockus
was in the ideal position to thwart the investigation’s efforts,
because he could direct his subordinates to take extra
precautions to evade surveillance. The district court did not
abuse its discretion when it agreed with Special Agent
Tylman’s assessment.
Third, Special Agent Tylman noted that “Brockus, if
contacted by law enforcement agents, [may have] provide[d]
misinformation about rival gang members in an effort to
mask his on-going criminal activities and direct law
enforcement resources in a direction that would [have]
allow[ed] him (Brockus) to easily avert law enforcement
detection.” In other words, Brockus might feign cooperation
in order to thwart the investigation or to further his own
objectives within the Westside Verdugo. Again, as the “shot
caller” of the Westside Verdugo, Brockus was in an ideal
position to provide law enforcement with misleading and self-
serving information. As a result, it was not illogical for the
district court to conclude that attempting to use Brockus as an
informant posed serious risks to the success of the
investigation.
Further, an investigation of a conspiracy is successful
only if it obtains “evidence of guilt beyond a reasonable
doubt, not merely evidence sufficient to secure an
indictment.” McGuire, 307 F.3d at 1198 (emphasis added).
The Government is not required to investigate a conspiracy
with one-hand tied behind its back. Rather, to obtain a
wiretap, the Government need only show that traditional
means of investigation are unlikely to result in evidence that
20 UNITED STATES V. ESTRADA
each member of the conspiracy is guilty beyond a reasonable
doubt. Decoud, 456 F.3d at 1007.
We take a “common sense approach” to evaluating the
likelihood of success of using confidential informants.
Gonzalez, 412 F.3d at 1112 (quoting Blackmon, 273 F.3d at
1207). In doing so, “[w]e have stressed repeatedly that
informants as a class, although indispensable to law
enforcement, are oftentimes untrustworthy.” Canales Gomez,
358 F.3d at 1226–27. We have also noted that:
On occasion, informants mislead investigators
and prosecutors in order to feather their own
nests. Indeed, juries in federal cases are
routinely instructed that the testimony of
witnesses receiving anything from the
government in return for the witness’s
cooperation must be examined with greater
caution than that of other witnesses. There is
not a trial lawyer alive who does not
understand that juries are wary of any witness
receiving a benefit for testifying. Here, the
government is to be commended for its
interest in wiretap evidence, which, compared
to the word of an informant either in the field
or in court, is the gold standard when it comes
to trustworthy evidence. The truth-seeking
function of our courts is greatly enhanced
when the evidence used is not tainted by its
immediate informant source and has been
cleansed of the baggage that always comes
with them. Moreover, wiretap evidence out of
the mouths of defendants is valuable
corroboration of informant testimony. Such
UNITED STATES V. ESTRADA 21
evidence serves also to ensure that what
investigators are being told by informants is
accurate, a very valuable function that guards
against the indictment of the innocent. Indeed,
the Supreme Court has opined that a jury may
understandably be unfavorably impressed
with evidence of the police’s uncritical
readiness to accept the story and suggestions
of an informant whose accounts were
inconsistent.
Id. at 1227 (quotation marks and citations omitted). Because
confidential informants may not be believed by a jury, id. at
1226–27, 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.9 See Hinkson, 585 F.3d at 1251.
AFFIRMED.
9
We express no opinion regarding whether the government was
conclusively entitled to a wiretap based on the facts in the affidavit. We
merely affirm the district court’s discretionary decision that the
government met the requisite showing of necessity under 18 U.S.C.
§ 2518(3)(c).