United States v. Jimmy Luong

FILED
NOT FOR PUBLICATION AUG 30 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50091
Plaintiff - Appellee, D.C. No. 2:10-cr-00863-SVW-1
v.
MEMORANDUM*
JIMMY LUONG, AKA Jimmy Loung,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted August 6, 2013
Pasadena, California
Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.
Defendant Jimmy Luong (“Defendant”) was convicted of conspiracy to
manufacture 500 grams or more of a mixture or substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and
841(b)(1)(A), and possession of a firearm in furtherance of a drug trafficking
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
crime, in violation of 18 U.S.C. § 924(c)(1)(A). Defendant appeals from the
district court’s denial of his motion to suppress evidence derived from the
Government’s wiretap of his cell phone, and from the search of an automobile he
was driving. Defendant contends that: (1) the Government’s affidavit in support of
its wiretap application failed to establish the requisite “necessity”; (2) the affidavit
impermissibly relied on material misrepresentations and omissions; and (3) the
Government lacked probable cause to search Defendant’s vehicle. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. “[W]e review the issuing judge’s decision that the wiretap was
necessary for an abuse of discretion.” United States v. Blackmon, 273 F.3d 1204,
1207 (9th Cir. 2001). “Title III [of the Omnibus Crime Control and Safe Streets
Act of 1968, 18 U.S.C. § 2518(1)(c),] prohibits electronic surveillance by the
federal government except under carefully defined circumstances.” Id. “The
statute requires that the issuing judge determine whether the wiretap application
contains facts that support a finding 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.’” Id. “Taken together, §§ 2518(1)(c) and (3)(c) require a full
and complete statement establishing necessity.” Id. The district court acted within
its discretion when it determined that the Government’s affidavit in support of its
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wiretap application established necessity for the interceptions. The affidavit very
carefully set forth each traditional investigative technique that had been employed
or considered and explained why those techniques had been, or were anticipated to
be, unsuccessful in exposing the organization as a whole.
2. Defendant’s argument that the Government’s affidavit impermissibly
relies on material misstatements and omissions fails as well. We “review de novo
whether a full and complete statement of the facts was submitted in compliance
with 18 U.S.C. § 2518(1)(c).” Id. The only argument that Defendant made in the
district court that arguably supports his current contention was that the
Government’s affidavit could be construed to be internally inconsistent, and thus
misleading, as to the success of utilizing confidential informants. However, under
Defendant’s theory, any inconsistency was facially apparent from the plain
language of the affidavit. Accordingly, there was no misrepresentation or
omission, let alone one that would have been material to the district court’s
decision authorizing the interceptions.
Defendant waived all other grounds on which he purports to base this
argument because he failed to raise them below. See United States v. Murillo, 288
F.3d 1126, 1135 (9th Cir. 2002). Even absent waiver, however, each of
Defendant’s remaining arguments fail on the merits. Although Defendant has
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identified one instance of surveillance that the Government omitted from its
affidavit, he has failed to show how that omission—or any other purportedly
misrepresented or omitted fact—is legally material. See Blackmon, 273 F.3d at1209 (citing United States v. Ippolito, 774 F.2d 1482, 1487 n.3 (9th Cir. 1985)).
3. Finally, the district court properly determined that officers had
probable cause to search Defendant’s car during the course of a traffic stop. “A
district court’s denial of a motion to suppress is reviewed de novo, while the
factual findings underlying the denial of the motion are reviewed for clear error.”
United States v. Gust, 405 F.3d 797, 799 (9th Cir. 2005). “Probable cause exists if,
under the totality of the circumstances, there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” United States v. Alvarez,
899 F.2d 836, 839 (9th Cir. 1990) (citation and internal quotation marks omitted).
Police officers had probable cause to search Defendant’s car because: (1) the car
was registered to a woman who was subject to an outstanding warrant for drug-
related charges; (2) an officer observed that Defendant had tattoos associated with
gang membership; (3) Defendant admitted he was a member of a gang known to
deal drugs; and (4) the officer observed a cardboard box containing thousands of
pills he suspected to be ecstasy sitting on the floor of the passenger side of the car.
AFFIRMED.
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