United States v. Lococo ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v. No. 05-50550
JUAN EMANUEL LOCOCO, a/k/a JOHN  D.C. No.
CR-03-00687-RGK-
LOCOC; JUAN EMANUEL LOCOC;
JOVANNI JOHN LOCOCO; JUAN DE LA 02
ROSA LOCOC; JUAN LOCOCO,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v. No. 05-50552
JUAN EMANUEL LOCOCO, a/k/a JOHN  D.C. No.
CR-03-00689-RGK-
LOCOC; JUAN EMANUEL LOCOC;
JOVANNI JOHN LOCOCO; JUAN DE LA 02
ROSA LOCOC; JUAN LOCOCO,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-50590
v.
 D.C. No.
CR-03-00689-RGK-
JOHN D. EDWARDS, JR., a/k/a Seal
A; Cabbage; Junior, 1
Defendant-Appellant.

16753
16754 UNITED STATES v. LOCOCO
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
CHARLOTTE VENIA JACKSON, a/k/a
CHARLOTTE RENE JACKSON,
CHARLETTE TINA JACKSON,
CHARLOTTE VENDA JACKSON, TINA No. 05-50721
JACKSON, NICJNEY HONES,
CHARLOTTE VENRA JACKSON,  D.C. No.
CR-03-00687-RGK-
RENADA JOHNSON, CHARLOTTE VENA
JACKSON, RICKNEY HONES, NICKEY 03
JONES, RENADA CARLETTE JOHNSON,
RENADA C. JACKSON, RENADA
CARLOTTE JOHNSON, RENADA
CHARLOTTE JOHNSON, CHARLOTTE
VENIA JACKSON, NIGKNEY JOHNES;
TINA FLY,
Defendant-Appellant.

UNITED STATES v. LOCOCO 16755
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
CHARLOTTE VENIA JACKSON, a/k/a
CHARLOTTE RENE JACKSON,
CHARLETTE TINA JACKSON,
CHARLOTTE VENDA JACKSON, TINA No. 05-50722
JACKSON, NICKNEY JONES, D.C. No.
CHARLOTTE VENRA JACKSON,  CR-03-00689-RGK-
RENADA JOHNSON, CHARLOTTE VENA 03
JACKSON, RICKNEY JONES, NICKEY
OPINION
JONES, RENADA CARLETTE JOHNSON,
RENADA C. JACKSON, RENADA
CARLOTTE JOHNSON, RENADA
CHARLOTTE JOHNSON, CHARLOTTE
VENIA JACKSON, NIGKNEY JOHNES;
TINA FLY,
Defendant-Appellant.

Appeals from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted
October 19, 2007—Pasadena, California
Filed December 27, 2007
Before: Alex Kozinski, Chief Judge, A. Wallace Tashima
and M. Margaret McKeown, Circuit Judges.
Per Curiam Opinion
16758 UNITED STATES v. LOCOCO
COUNSEL
Gretchen Fusilier, Carlsbad, California, for defendant-
appellant Juan Emanuel Lococo.
Alissa Sawano Peterson, Irvine, California, for defendant-
appellant John D. Edwards, Jr.
Philip Deitch, Van Nuys, California, for defendant-appellant
Charlotte Venia Jackson.
Jennifer A. Corbet, Kevin S. Rosenberg and Thomas P.
O’Brien, Assistant U.S. Attorneys; George S. Cardona, Act-
ing U.S. Attorney, Los Angeles, California, for plaintiff-
appellee.
OPINION
PER CURIAM:
Defendants pled guilty to conspiring to possess and distrib-
ute cocaine. We consider the government’s application for the
wiretap on which its case was built, an allegation of prosecu-
torial misconduct and the constitutionality of defendants’ sen-
tences.
[1] 1. The wiretap application describes the investigative
techniques the police tried and explains how they failed: Con-
fidential informants were either incarcerated, unwilling to tes-
tify or else distrusted by the targets; efforts to recruit other
informants failed; and attempts to gather evidence by other
means—including direct and hidden surveillance, trash
searches and searches of paroled gang members’ homes—
yielded nothing. Defendants haven’t shown any basis to doubt
the application’s representations. “Law enforcement officials
need not exhaust every conceivable investigative technique
UNITED STATES v. LOCOCO 16759
before seeking a wiretap order.” United States v. Staves, 383
F.3d 977, 982 (9th Cir. 2004). The district court didn’t abuse
its discretion in finding that the application justified the wire-
tap.
[2] 2. Defendants haven’t shown that the wiretap appli-
cation contained false statements or material omissions, so
there was no need for a hearing under Franks v. Delaware,
438 U.S. 154 (1978). The claim that Special Agent King
reviewed Jackson’s calls since March 2002 isn’t demonstra-
bly false; though the police’s pen register authority only
began in July of that year, King also had Jackson’s telephone
toll records, which may have reached back to March. Nor did
the application understate informant CS-1’s closeness to Jack-
son; on the contrary, it acknowledged that CS-1 could buy
drugs from her.
Though the application didn’t mention that Jackson was in
the Blood Stone Villains gang, that didn’t matter; the point
was that Jackson’s boyfriend was in the target Pueblo Street
Bishops gang. Nor was there any reason for the application to
mention Lococo or the sources close to him, as he wasn’t the
wiretap’s target.
[3] 3. Defendants haven’t shown that the government’s
failure to produce its recordings of Lococo’s phone calls prej-
udiced anyone’s defense or affected anyone’s decision to
plead guilty. See United States v. Tucker, 8 F.3d 673, 675 (9th
Cir. 1993). The district court didn’t abuse its discretion by not
dismissing the indictment.
[4] 4. In his plea colloquy, Lococo waived his right to
have a jury determine the amount of drugs the conspiracy
sold. There was no need for the district court to advise him
of this right at sentencing.
[5] Lococo’s plea agreement reserved the government’s
right to “supplement the facts stipulated” and to “seek any
16760 UNITED STATES v. LOCOCO
sentence within the statutory maximum,” so offering addi-
tional evidence at sentencing didn’t breach the agreement.
[6] Though Lococo denied knowing that his co-
conspirators converted the powder cocaine he sold them into
crack cocaine, he admitted that he joined a conspiracy to dis-
tribute crack. The district court therefore didn’t violate the
Sixth Amendment when it sentenced him based on the crack
his co-conspirators distributed. See United States v. Mercado
Irizarry, 404 F.3d 497, 504 (1st Cir. 2005) (“[T]he maximum
statutory penalty available to the district court at sentencing
for a defendant convicted of a drug conspiracy is based on the
drug quantity and amount . . . attributable to the conspiracy
as a whole.”).
[7] 5. Edwards admitted that he joined a conspiracy to
distribute over 50 grams of crack cocaine and that he had a
prior drug felony trafficking conviction. Because those admis-
sions suffice to support a sentence of life in prison, see 21
U.S.C. § 841(b)(1), the additional facts the court found at sen-
tencing didn’t increase the maximum sentence for which he
was eligible. The court’s fact-finding therefore did not violate
Apprendi v. New Jersey, 530 U.S. 466 (2000).
[8] 6. In their plea agreements, Lococo and Edwards
waived the right to appeal their sentences. Edwards claims his
waiver wasn’t valid, but his plea colloquy shows he waived
the right knowingly and voluntarily. These waivers bar defen-
dants from appealing the district court’s interpretation of the
Guidelines, its calculation of the Guidelines range, its alleged
failure to consider the sentencing factors in 18 U.S.C.
§ 3553(a), and the reasonableness of the sentences imposed.
We therefore dismiss these portions of defendants’ appeals.
DISMISSED in part and AFFIRMED in part.