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United States v. Reed

August 4, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RODRICK CARDALE REED, AKA BOULEVARD, LI'L ROD, DEFENDANT-APPELLANT.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
GEORGE WILLIAMS, A/K/A JIMMY WILLIAMS, GEORGE JUNE, GEORGE VAP-24 WILSON AND JAMES WILLIAMS, DEFENDANT-APPELLANT.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RICHARD DARNELL JOHNSON, A/K/A RICHARD JOHNSON, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding D.C. Nos. CR-03-00084, CR-03-00084-VAP-1 & CR-03-00084-VAP-10.

The opinion of the court was delivered by: N.R. Smith, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted October 24, 2008 -- Pasadena, California

Before: Harry Pregerson, Cynthia Holcomb Hall, and N. Randy Smith, Circuit Judges.

OPINION

Rodrick Reed (Case No. 06-50040), George Williams (Case No. 06-50048), and Richard Johnson (Case No. 06-50302) appeal their convictions and sentences following a jury trial. Each Appellant was convicted of conspiracy crimes involving the manufacture and distribution of phenylcyclohexylpiperidine ("PCP"). Reed was also convicted of conspiracy to possess firearm silencers. The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm the judgment of the district court and affirm the convictions and sentences of each Appellant.*fn1 Reed, Williams, and Johnson primarily assert that the district court erred in denying their motion to suppress wiretap evidence for Target Telephone No. 10 ("TT10"). In affirming their convictions, we hold (1) that the Government's wiretap application satisfied the necessity requirement; (2) the district court did not err in finding that the Government had not intercepted telephone calls on a line for which there was no court order; (3) the Government was not required to seal call data content ("CDC") and it timely sealed the wiretap recordings under § 2518(8);*fn2 and (4) the Government did not violate the statutory wiretap monitoring requirements of § 2518(5). Appellants raise additional issues regarding access to an expert witness (Reed), destruction of witness interview notes (Williams and Johnson), admission of expert testimony regarding "drug jargon" (Johnson), sufficiency of the evidence (Williams), adequacy of jury instructions (Williams), and admission of prior felonies for sentencing (Williams). We affirm the district court on each of these issues.

FACTUAL BACKGROUND

Appellants' convictions arise from the Government's investigation of a PCP manufacturing and distribution operation in central California. In May 2002, the Government acquired information from an informant that Reed and others were manufacturing and distributing PCP. In November 2002, the informant communicated with Reed and his associate, Kim Stinson, about purchasing PCP. Reed made arrangements for the sale. In February 2003 (under law enforcement surveil-lance), the informant purchased a half gallon of PCP from Reed's associate, Anthony Piggue.

I. Adelanto Drug Lab

On March 21, 2003, local law enforcement discovered a PCP drug lab near Adelanto, California. At the lab, officers seized full-face respirators and various containers, containing about four pounds of crystalline PCP, and other chemicals used in manufacturing PCP. In a white van at the lab, officers found documents connecting the van to Reed, Stinson, and Henry Henderson. A receipt in the van showed Stinson's address on Lorraine Place, Rialto, California ("Lorraine residence").

II. Federal Wiretap

Marvin McCaleb was supplying PCP precursor chemicals to Reed. While monitoring a telephone used by McCaleb, agents intercepted numerous calls made to McCaleb from Reed discussing PCP manufacturing. These calls originated from a telephone (TT10) subscribed to Terry Jackson. On April 4, 2003, the Government received a federal wiretap order for TT10 and began recording conversations confirming that Reed and his associates were manufacturing and distributing PCP and had firearms.

On April 8, 2003, the Government submitted an interim report to the authorizing judge. The Government informed the court that, although TT10 was used by Reed, within the first few hours of interception it became clear that TT10 was primarily used by Terry Jackson. Still, the Government had clear evidence that TT10 was being used in the furtherance of the PCP conspiracy. Upon filing an interim report with the court, the Government received permission to continue the wiretap of TT10.

III. Calls Intercepted on TT10 Provide Additional Evidence of PCP Operations

Among the calls intercepted on TT10, agents recorded an April 6, 2003 call between Stinson and Appellant Williams, in which Williams stated that he was lining up some out of state PCP purchasers for Reed.

On April 13, 2003, the Government intercepted calls involving Reed, Jackson, and Benjamin Beal, indicating that they were preparing to manufacture more PCP. Government agents watched the Lorraine residence and observed Reed directing others to load the white van with orange buckets and red canisters and handling a respirator. When the van departed the residence, the California Highway Patrol ("CHP") conducted a traffic stop where officers smelled strong chemical odors upon approaching the van and observed the buckets and canisters. Johnson was driving the van and told the CHP officer that the chemicals were used for carpet cleaning. After a hazmat team responded to the scene, it was determined that all of the chemicals and equipment related to the manufacture of PCP. In addition, the van contained 26.1 kilograms of PCP in crystalline form.

Two days after the van stop and seizure, Reed used TT10 to speak with several of his associates. Reed informed them of the seizure and directed them regarding future PCP manufacturing. Shortly after that call, Reed called Williams and discussed the van seizure and described his plans to make "grignard," a chemical reagent used in making PCP. Williams asked Reed about his plan, and counseled him on how to avoid law enforcement. Later that same day, Reed told another associate that the van had chemicals worth about $100,000, capable of making 150 to 200 gallons of PCP, worth a street value of about $2 million.

Later that month, deputies went to the Lorraine residence to further investigate the seizure of the white van. Deputies apprehended Reed and Jackson and questioned them about the white van. Stinson, cooperating with the Government, later testified that the white van belonged to Reed.

By May 2003, Reed was again manufacturing PCP. On May 13 and 14, Reed communicated with two other co- defendants about the manufacturing operation. Sheriff's deputies later found five gallons of PCP buried underground on property owned by the father of one of these co-defendants.

IV. The Arrests

On July 10, 2003, federal agents executed a series of search and arrest warrants for Reed and his co-defendants, arresting Reed at the Lorraine residence and retrieving $17,000 in cash in the trunk of a car at the residence.

An apartment shared by Johnson and Jackson was also searched. During the search, officers found documents in Johnson's name and a container containing trace amounts of PCP in Johnson's closet. Agents also searched the apartment belonging to Reed's girlfriend, where they located two 9mm firearms with attached silencers.

V. The Indictments

On June 3, 2004, a federal grand jury returned a nine-count indictment charging more than twenty defendants, including Appellants, with drug and firearms violations. Count one charged each defendant with a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(c)(2), and 846 as well as 18 U.S.C. § 2 (conspiracy to manufacture, aid and abet the manufacture, possess with intent to distribute, and distribute more than 100 grams of PCP); count two charged Reed with a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2 (aiding and abetting the distribution of 100 grams or more of PCP; count three charged Reed and Johnson with a violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2 (attempting and aiding and abetting the manufacture of 100 grams or more of PCP); count seven charged defendant Reed with a violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm); and count nine charged Reed with a violation of 18 U.S.C. § 371 and 26 U.S.C. § 5861 (conspiracy to possess unregistered firearm silencers).*fn3

VI. The Motions To Suppress

On July 8, 2004, Reed filed a motion to suppress the wiretap evidence recorded for TT10 and all derivative evidence. Reed argued that (1) the wiretap should have ceased when it was discovered that Terry Jackson was the primary user of the phone; (2) the wiretap was not properly sealed within two days under 18 U.S.C. § 2518(8)(a); and (3) the wiretap application failed to satisfy the necessity requirement. After a hearing on October 19, 2004, the court issued a written order denying the motion. Instead, the court found that the probable cause requirements were met in the original application. Further, given the traditional law enforcement techniques already employed and the nature of the conspiracy being investigated, the Government had shown necessity for the wiretaps. The district court also found that the Government complied with all statutory sealing requirements.

During the October 19, 2004 hearing on the first motion to suppress, Reed's attorney referenced a supplemental motion to suppress that he filed that morning, relating to an issue of illegal, warrantless wiretaps. Reed, joined by Williams, Johnson and other co-defendants, renewed the supplemental motion on May 23, 2005. The defendants asserted three bases for suppression: (1) that law enforcement colluded with the telephone company to (a) intercept calls on a telephone for which there was no court order and (b) alter wiretap and telephone billing records to conceal the illegal act; (2) that the Government failed to seal pen register and trap and trace data for TT10; and (3) that the wiretap monitoring was not properly supervised by authorized federal agents. The court held three hearings before denying the motion. The court found that (1) no illegal wiretapping took place; (2) the defense expert's testimony about anomalies in the records was not persuasive; (3) the missing CDC was the result of technical difficulties; (4) the CDC was not subject to the sealing requirements of the wiretap statute; and (5) the wiretap monitoring was done in compliance with the law.

VII. The Trial

On July 7, 2005, the Government filed an information under 21 U.S.C. § 851 alleging that Reed had one previous, felony drug crime conviction, and that Williams had previously been convicted of two felony drug crimes. On July 12, 2005, the cases against Reed, Williams, and Johnson proceeded to trial. On July 20, 2005, Appellants moved to dismiss the indictment and strike testimony due to the Government's destruction of evidence (rough interview notes regarding cooperating Government witnesses). A written motion was filed on July 22, and the motion was denied on July 26, 2005. On July 28, 2005, Reed, Williams, and Johnson were convicted after a 10-day jury trial.

On December 5, 2005, Reed and Williams admitted the allegations of their prior felony drug convictions. On January 17, 2006, Reed and Williams were sentenced to life in prison. Johnson was sentenced to ninety-six months' imprisonment.

DISCUSSION

I. APPELLANTS' MOTION TO SUPPRESS WIRETAP EVIDENCE WAS PROPERLY DENIED

Appellants argue that the district court erred in denying their motion to suppress wiretap evidence, because (1) the Government failed to show necessity for the wiretap on TT10, as required by 18 U.S.C. §§ 2518(1)(c) & (3)(c); (2) the wiretap was not discontinued after the Government learned that TT10 was primarily used by Terry Jackson; (3) the Govern- ment colluded with the telephone company to make illegally intercepted calls appear as though they were lawfully intercepted on TT10; (4) the Government failed to timely seal the recordings, and completely failed to seal the CDC for TT10; and (5) the wiretap was not properly monitored by federal agents. We address each of these arguments individually below.

In reviewing the denial of a motion to suppress evidence, we review the district court's factual findings for clear error. See United States v. Hermanek, 289 F.3d 1076, 1085 (9th Cir. 2002) (citation omitted). We review de novo "whether an application for a wiretap order is supported by a full and complete statement of the facts in compliance with § 2518(1)(c)." United States v. Rivera, 527 F.3d 891, 898 (9th Cir. 2008) (citation omitted). We review for abuse of discretion the issuing judge's conclusion that the wiretap was necessary. Id. (citation omitted).

A. The Affidavit in Support of the Wiretap Application Met the Necessity Requirements of § 2518

Appellants first argue that the wiretap of TT10 was not supported by an affidavit demonstrating necessity, because traditional investigative techniques had not been exhausted. They raise no challenge on appeal to the probable cause for the wiretap. We conclude that the district court did not err in finding that the affidavit satisfied the necessity requirement.

[1] The Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2522 (the "wiretap statute"), governs wiretap applications. After showing probable cause, the Government must also prove necessity by making "a full and complete statement as to whether or not 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 . . . ." Rivera, 527 F.3d at 897 n.1 (quoting § 2518(1)(c)). The issuing judge may approve the wiretap if he or she determines 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. (quoting § 2518(3)(c)). The purpose of these requirements is to ensure that "wiretap-ping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n.12 (1974).

1. The Affidavit Contains a Full and Complete Statement of Facts in Compliance with § 2518(1)(c)

To determine whether an affidavit contains a full and complete statement of facts in compliance with § 2518(1)(c), we must "assess whether the affidavit attests that adequate investigative tactics were exhausted before the wiretap order was sought or that such methods reasonably appeared unlikely to succeed or too dangerous." Rivera, 527 F.3d at 898 (citation omitted).

[2] The Government's affidavit, in support of the wiretap application, describes prior investigative techniques and/or explains why these techniques had been or would be too dangerous or unsuccessful. The affidavit addresses other wiretaps, specific confidential informants, unfruitful physical surveillance, unproductive search warrants, interviews, trash searches, financial investigations, and pen registers/trap and trace devices/telephone tolls and subscriber information. In each case, the affidavit describes (1) the efforts undertaken and (2) why the results were insufficient or why a proffered technique would be unavailing in the context of this particular drug conspiracy investigation.

[3] Appellants contend that federal agents failed to follow new leads, new informants, and other new evidence provided by local law enforcement before applying for the wiretap. They also contend that the affidavit omitted law enforce-ment's success using normal investigative techniques, includ- ing the use of a tracking device on Reed's white van. Reed contends that the investigative techniques listed in the affidavit were not directed at him individually, but related only to the broader conspiracy investigation. He therefore suggests that techniques such as informants, search warrants, and tracking devices were not fully utilized. These arguments are unconvincing in light of the Government's affidavit, which sufficiently sets forth reasons (1) why the informants would not produce further evidence (informants were in custody, were unwilling, lacked further information about Reed, or were no longer trusted by Reed), (2) why a search warrant would not be successful (Government did not know where Reed resided), and (3) why tracking devices were ineffective (Reed and associates constantly changed cars). Any omissions in the affidavit regarding the limited success achieved by traditional investigative techniques does not require suppression, because such omissions were not material in causing the wiretap warrant to issue. See id. at 898.

Accordingly, we conclude that the Government made a "full and complete statement" of prior investigative procedures and why these procedures failed or would be unlikely to succeed.

2. The District Court Did Not Abuse its Discretion in Finding Necessity for the Wiretap

When reviewing the district court's finding of necessity, "we employ a 'common sense approach to evaluate the reasonableness of the government's good faith efforts to use traditional investigative tactics or its decision to forgo such tactics based on the unlikelihood of their success or the probable risk of danger involved with their use.' " Rivera, 527 F.3d at 902 (quoting United States v. Gonzalez, Inc., 412 F.3d 1102, 1112 (9th Cir. 2005)); see also S. Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 2112, 2190 ("Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely. What the [necessity] provision envisions is that the showing be tested in a practical and commonsense fashion.") (internal citations omitted).

[4] "The necessity for the wiretap is evaluated in light of the government's need not merely to collect some evidence, but to 'develop an effective case against those involved in the conspiracy.' " Rivera, 527 F.3d at 902 (quoting United States v. Decoud, 456 F.3d 996, 1007 (9th Cir. 2006)). "[L]aw enforcement officials need not exhaust every conceivable alternative before obtaining a wiretap." United States v. McGuire, 307 F.3d 1192, 1196-97 (9th Cir. 2002) (citation omitted). The issuing court has considerable discretion in finding necessity, particularly when the case involves the investigation of a conspiracy. Id. at 1197-98. This court has "consistently upheld findings of necessity where traditional investigative techniques lead only to apprehension and prosecution of the main conspirators, but not to apprehension and prosecution of . . . other satellite conspirators." Id. at 1198 (quoting United States v. Torrez, 908 F.2d 1417, 1422 (9th Cir. 1990)).

This case involves a drug manufacturing and distribution conspiracy. The record is clear that the Government did not seek to use the wiretap as the initial step in its ongoing investigation, but instead employed numerous investigative techniques, relied on state and local law enforcement efforts,*fn4 and considered using a number of alternative techniques over the course of its 18-month investigation.

[5] In light of the representations made in the Govern-ment's affidavit, the issuing court had a sufficient basis to find that the wiretap order was essential to the success of the conspiracy investigation. Accordingly, we conclude that the issuing court did not abuse its discretion in finding that the wiretap was necessary to identify the full scope of the Reed organization and "develop an effective case" against its members. See Rivera, 527 F.3d at 902 (citing Decoud, 456 F.3d at 1007).

Williams and Johnson also challenge the affidavit supporting the application for the wiretap on Target Telephone 11 ("TT11"), on the basis that the affidavit for TT11 was based on the same showing of necessity as was used for TT10 and that some of the evidence derived from the wiretap of TT10 was used to support the TT11 application. Because we affirm the district court's finding of necessity as to TT10, we reject these challenges to the affidavit for TT11.

B. The Government Was Not Required to Terminate the Wiretap of TT10 after Learning That Terry Jackson Was the Primary User

Appellants argue that, once authorities discovered that TT10's primary user was Terry Jackson, they should have immediately discontinued the wiretap. They contend that to continue listening to Jackson's phone calls was akin to getting a search warrant for one house, searching the wrong house, and then even after discovering that it is the wrong house, continuing the search anyway. We disagree with this analogy in light of the language of § 2518.

Authorization for a wiretap is based on probable cause to believe that the telephone is being used to facilitate the commission of a crime, and the order need not name any particu- lar person if such person is unknown. See § 2518(1)(b)(iv)); Kahn, 415 U.S. at 157; United States v. Nunez, 877 F.2d 1470, 1473 n.1 (10th Cir. 1989) ("[T]he government ha[s] no duty to establish probable cause as to each interceptee. It is sufficient that there was probable cause to tap the phone.").

[6] We have previously stated that wiretap authority is tied "to specific communications facilities or locations," and "[a] cellular phone number is a 'communications facility.' " Hermanek, 289 F.3d at 1086 & n.3. Identification of individuals whose communications will be intercepted is only required "if known." ยง 2518(4)(a). Interpreting this provision, the Supreme Court said, "Congress could not have intended that the authority to intercept must be limited to those conversations between a party named ...


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