United States v. Michael Carey ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 9 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50393
Plaintiff-Appellee, D.C. No.
3:11-cr-00671-WQH-1
v.
MICHAEL CAREY, AKA Garrocha, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted February 15, 2023
Pasadena, California
Before: WALLACE, HURWITZ, and BADE, Circuit Judges.
After Michael Carey was indicted for conspiracy to distribute cocaine, he
moved to suppress evidence obtained by federal agents, claiming that the evidence
was the fruit of a wiretap targeting a different drug-trafficking conspiracy (the
“Escamilla conspiracy”). The district court denied the motion to suppress, and Carey
pleaded guilty, reserving the right to challenge the district court’s order on appeal.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We vacated the suppression order and remanded for further proceedings because
“[t]he record does not indicate what evidence was obtained before the agents knew
or should have known they were listening to calls outside of the Escamilla
conspiracy.” United States v. Carey, 836 F.3d 1092, 1098 (9th Cir. 2016). On
remand, the district court held an evidentiary hearing and found that the critical
wiretap evidence was obtained before agents knew or should have known that they
were listening to calls outside the targeted conspiracy, and the district court denied
the motion to suppress. We have jurisdiction under 28 U.S.C. § 1291 over Carey’s
appeal from that ruling and affirm.
1. As a preliminary matter, we reject the government’s argument that the plea
agreement waived some of the issues Carey now raises on appeal. The agreement
reserved Carey’s right to “appeal the district court’s ruling . . . denying his motion
to suppress the wiretap.” Each issue raised in this appeal attacks the denial of the
suppression motion.
2. Regardless of the standard of review employed, the district court did not
err in finding that there were “no interceptions on the T-14 line after any agent knew
or should have known that the phone calls on the T-14 line could involve callers
outside the scope of the Escamilla conspiracy.” Finding the testimony of the federal
investigators “entirely consistent and credible,” the court credited their statements
that the relevant intercepted calls involved the same activity expected from members
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of the Escamilla conspiracy. The court also found credible the investigators’
testimony that a five-day gap between initiation of the T-14 wiretap and the first
intercepted conversation was not unusual and that not all Escamilla conspirators
discarded their phones every twenty days. And although the first call intercepted
under the wiretap order was in English—which Ignacio Escamilla had not previously
used when talking to a government informant—the investigators declared that all
other calls intercepted thereafter were in Spanish. Because the intercepted calls
discussed a similar drug-trafficking operation, the investigators reasonably believed
they “had found a previously undiscovered aspect of our subjects’ drug trafficking
activities,” not an unrelated conspiracy.
Carey asserts that the federal investigators should have used border-crossing
information to identify him and his co-conspirators, then discovered an ongoing
Immigration and Customs Enforcement investigation into them, and then
determined that the calls related to a distinct conspiracy. The seizure of the evidence
occurred only one week after the first intercepted call, and the record does not show
that the information Carey cites was readily accessible to the investigators or that
protocol reasonably required them to query multiple databases during that brief
period.
3. We also reject Carey’s argument that he had a reasonable expectation of
privacy in using T-14 during the relevant period. Under the “plain hearing” doctrine,
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the “government may use evidence obtained from a valid wiretap prior to the
officers’ discovery of a factual mistake that causes or should cause them to realize
that they are listening to phone calls erroneously included within the terms of the
wiretap order.” Carey, 836 F.3d at 1098 (cleaned up).
4. Carey argues for the first time on appeal that investigators’ declarations
and testimony were perjurious. But there “can virtually never be clear error,” let
alone plain error, if a district court credits the testimony of a witness who “has told
a coherent and facially plausible story that is not contradicted by extrinsic evidence.”
Earp v. Davis, 881 F.3d 1135, 1145–46 (9th Cir. 2018) (cleaned up). Carey also
asserts that the government improperly withheld “signal intelligence,” but has not
shown that any such information either exists or “would have changed the result of
the proceeding.” United States v. Zuno-Arce, 44 F.3d 1420, 1425 (9th Cir. 1995)
(cleaned up).
5. Citing a statement in United States v. Rodriguez that a “different district
court judge must decide any motion to suppress wiretap evidence, creating a second
level of review in the district court,” 851 F.3d 931, 937 (9th Cir. 2017), Carey argues
for the first time on appeal that the judge who authorized the T-14 wiretap should
not have considered the motion to suppress. But Carey’s motion to suppress did not
require the issuing judge to engage in a second level of review of his own wiretap
authorization because Carey did not attack the validity of the wiretap in the district
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court following remand. Rather, the sole issue concerned information obtained after
the issuance of the order.
6. Carey also challenges the district court’s rejection of his request to replace
retained counsel with appointed counsel. Reviewing for abuse of discretion, see
United States v. Rivera-Corona, 618 F.3d 976, 978 (9th Cir. 2010), we find none.
The district court rejected Carey’s informal pro per motion for substitution of
counsel as improperly formatted but did not preclude the refiling of a properly
formatted motion. Carey never refiled, and the district court did not abuse its
discretion in failing to sua sponte grant the request, particularly given the need to
control its docket in light of an imminent deadline for briefing on the motion to
suppress. See United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (stating
that a district court has “wide latitude in balancing the right to counsel of choice
against the needs of fairness and against the demands of its calendar” (cleaned up)).
7. Carey argues that the district court abused its discretion in denying
discovery of various recorded calls, investigative material, and grand jury
transcripts. Carey, however, has failed to show how the discovery was “material to
preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E). The additional material would
not have been relevant to the investigators’ belief that they were intercepting
Escamilla conspiracy calls before the seizure.
8. For the first time on appeal, Carey argues that the affidavit submitted in
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support of the wiretap application contained intentionally false or misleading
statements and that intercepts were extraterritorial. Even assuming these arguments
are not waived under Federal Rule of Criminal Procedure 12(c)(3) and are “thus
reviewed for plain error,” United States v. Mongol Nation, 56 F.4th 1244, 1252 (9th
Cir. 2023), the arguments fail. Carey made no “substantial preliminary showing” of
a “false statement” or that investigators acted “knowingly and intentionally, or with
reckless disregard for the truth.” Franks v. Delaware, 438 U.S. 154, 155–56 (1978).
Nor has he demonstrated interception of relevant calls outside of the territorial
jurisdiction of the district court, 18 U.S.C. § 2518(3), which includes both “where
the tapped phone is located and where law enforcement officers first overhear the
call,” United States v. Luong, 471 F.3d 1107, 1109 (9th Cir. 2006).1
AFFIRMED.
1
The government’s motion to strike, Dkt. 82, is denied. Carey’s motion to
compel delivery of mail, Dkt. 61, is denied.
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