United States v. Curtis Hendrix

FILED
NOT FOR PUBLICATION OCT 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10320
Plaintiff - Appellee, D.C. No. 1:08-cr-00232-LJO-1
v.
MEMORANDUM*
CURTIS HENDRIX,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted October 11, 2013
San Francisco, California
Before: WALLACE, M. SMITH, and IKUTA, Circuit Judges.
Curtis Hendrix appeals from the district court’s judgment sentencing him to
360 months in prison after he pleaded guilty to conspiracy to distribute cocaine
base, and distribution and possession with intent to distribute cocaine base. He
argues that the district court erred in denying his motion to suppress evidence
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
obtained through wiretaps, asserting that the affidavits supporting those wiretaps
failed to establish the requisite necessity. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
We review a district court’s decision that a wiretap is necessary for abuse of
discretion. United States v. Canales Gomez, 358 F.3d 1221, 1225 (9th Cir. 2004).
We have adopted a “common sense approach” in which “the reviewing court uses a
standard of reasonableness to evaluate the government’s good faith effort to use
alternative investigative means or its failure to do so because of danger or low
probability of success.” Id. (quoting United States v. Blackmon, 273 F.3d 1204,
1207 (9th Cir. 2001)). Although a wiretap “should not ordinarily be the initial step
in the investigation,” law enforcement officials “need not exhaust every
conceivable alternative before obtaining a wiretap.” Id. at 1225–26 (quoting
United States v. McGuire, 307 F.3d 1192, 1196–97 (9th Cir. 2002)). Finally, the
mere fact that law enforcement officials “could have taken different or some
additional steps in [their] investigation does not demonstrate that the district court
abused its discretion in upholding the wiretap order.” United States v. Carneiro,
861 F.2d 1171, 1178 (9th Cir. 1988).
Hendrix argues that the police had achieved some success in their
investigation of Hendrix’s gang, and thus that the wiretaps at issue here were
unnecessary. However, the fact that a law enforcement agency has had some
success in its investigation of a criminal conspiracy does not preclude the
government from showing the necessity of a wiretap to further advance its
investigation. See United States v. Bennett, 219 F.3d 1117, 1122 (9th Cir. 2000)
(stating that “the mere attainment of some degree of success during law
enforcement’s use of traditional investigative methods does not alone serve to
extinguish the need for a wiretap”). Moreover, a “wiretap can be necessary if it
gives the government the ability to develop an effective case.” McGuire, 307 F.3d
at 1198 (internal quotation marks omitted). Here, the affidavits make clear that the
goal of the wiretaps was to obtain further evidence to support the prosecution of
Hendrix’s street gang. Such evidence would make prosecution of the gang “more
effective.” Id. at 1198–99.
Hendrix’s argument that the affidavits failed to “make a sufficient
particularized showing of necessity” relies on this court’s opinion in United States
v. Blackmon, 273 F.3d 1204. However, Hendrix’s reliance on Blackmon is
misplaced. As we have repeatedly explained, Blackmon was predicated on a
finding that “the wiretap application ‘contain[ed] material omissions and
misstatements’ that, when purged, left a deficient application.” Canales Gomez,
358 F.3d at 1225 (quoting Blackmon, 273 F.3d at 1211); see also United States v.
Fernandez, 388 F.3d 1199, 1237 (9th Cir. 2004) (stating that the holding in
Blackmon “was premised on a finding that the affidavits supporting the wiretap
applications were plagued by material misrepresentations and omissions”). Here,
by contrast, the affidavit is not “plagued by material misrepresentations and
omissions,” which means that Blackmon is inapposite.
We reject Hendrix’s argument that the second affidavit did not establish
necessity due to its supposedly “boilerplate” and “conclusory assertions,” because
the second affidavit included information from the first affidavit that was
individually relevant to Hendrix, as well as new information learned during the
continued investigation. Because the issuing judge indicated that he had
considered the original affidavit as well as reading the new, highlighted
information in the second affidavit, we also reject Hendrix’s argument that the
judge did not adequately review the second affidavit in determining that the
additional wiretap was necessary.
AFFIRMED.