United States v. Richard Ortiz

FILED
NOT FOR PUBLICATION JAN 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30361
Plaintiff - Appellee, D.C. No. 2:12-cr-00062-RSL-28
v.
MEMORANDUM*
RICHARD ANTHONY ORTIZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted December 11, 2014
Seattle, Washington
Before: McKEOWN, TALLMAN, and OWENS, Circuit Judges.
Richard Anthony Ortiz challenges the district court’s admission of wiretap
calls at trial, arguing that the government did not meet the “necessity” element
required by 18 U.S.C. § 2518 for Target Telephone No. 8 (“TT8”). Ortiz also
challenges the admission of Marisela Fuentes’s statements to Ortiz during two
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
prison calls, alleging there was insufficient independent evidence that Fuentes was
an unindicted member of the conspiracy.1
The government’s affidavit provided a “full and complete statement,” and
the district court did not abuse its discretion in finding that the wiretap application
met the statutory requirement of necessity. 18 U.S.C. § 2518(1)(c), (3)(c); see also
United States v. Canales Gomez, 358 F.3d 1221, 1224 (9th Cir. 2004). Section
2518(1)(c) requires that any application for a judicial order authorizing a wiretap
include “a full and complete statement”2 indicating that “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.” See also 18 U.S.C. § 2518(3)(c).
Here, Special Agent Nathan Clammer’s 73-page affidavit details an
extensive use of traditional investigative procedures, which were met with limited
success. As part of a seven month inter-agency investigation into the Berrelleza
Drug Trafficking Organization (“DTO”), federal agents performed extensive
1
Ortiz’s appeal of the district court’s admission of opinion testimony that
identified Ortiz’s voice for the jury as the Spanish speaker in intercepted calls is
disposed of in a published opinion filed contemporaneously with this
memorandum disposition.
2
Ortiz did not appeal the denial of his motion for a Franks hearing to
determine whether the wiretap application for TT8 contained material
misrepresentations or omissions. See United States v. Shryock, 342 F.3d 948, 977
(9th Cir. 2003).
-2-
physical and video surveillance, developed a limited number of confidential
sources, issued subpoenas for financial records, deployed undercover agents, and
obtained permission to use pen registers and vehicle tracking devices. On this
basis—demonstrating that extensive normal investigative procedures had been
tried and failed—the government met the statutory necessity requirement. United
States v. Gonzalez, Inc., 412 F.3d 1102, 1112 (9th Cir. 2005).
Finally, the district court did not abuse its discretion in admitting the two
prison calls between Ortiz and Fuentes under the co-conspirator hearsay exception.
The court was not clearly erroneous when it found that a conspiracy existed,
Fuentes was an unindicted co-conspirator, and statements were made in
furtherance of that conspiracy. Fed. R. Evid. 801(d)(2)(E); United States v. Moran,
493 F.3d 1002, 1010 (9th Cir. 2007). Ample evidence supports its factual findings,
including prison calls indicating Ortiz would rejoin the DTO once he was released
from custody, testimony from agents establishing that Fuentes likely laundered
money for the DTO, and a prior wiretap application listing Fuentes as a target
subject of the investigation. The court and jury also knew she was DTO leader
Ivan Berrelleza-Verduzco’s live-in girlfriend, present during the takedown at their
residence, and on that occasion questioned by police.
AFFIRMED.
-3-