United States v. Aviles

153 F.3d 931, 98 Cal. Daily Op. Serv. 6400, 98 Daily Journal DAR 8863, 1998 U.S. App. LEXIS 20135, 1998 WL 480908
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 18, 1998
DocketNos. 96-10110, 96-10167, 97-10251 and 97-10289
StatusPublished
Cited by1 cases

This text of 153 F.3d 931 (United States v. Aviles) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Aviles, 153 F.3d 931, 98 Cal. Daily Op. Serv. 6400, 98 Daily Journal DAR 8863, 1998 U.S. App. LEXIS 20135, 1998 WL 480908 (9th Cir. 1998).

Opinion

NOONAN, Circuit Judge:

Rafael Cornejo, Salvador Aviles, Miguel Angel Barreneehea and Carlos A. Perez appeal them convictions and sentences for offenses involving the distribution of cocaine. Their principal challenges go to the wiretap evidence against them and to the government’s compliance with the Speedy Trial Act.

The Wiretaps. The Organized Crime Drug Enforcement Task Force (the Task Force) brought together federal and local agencies under the leadership of Special Agent Don A. Alen of the Federal Bureau of Investigation (the FBI). In May 1991, the Task Force began an investigation of Corne-jo, who was a suspected drug dealer, a felon already convicted of income tax evasion, and an associate of known drug dealers. The Task Force employed surveillance of Corne-jo’s home in Lafayette, California. Due to the location of the house off a narrow street without shoulders, surveillance was difficult. The Task Force learned from a prisoner awaiting sentence that Cornejo and his half-brother Aviles intended to purchase cocaine from Oscar Danilo Blandon-Reyes in September 1991. The purchase was for $300,000 and executed by shipments of a total of 81 kilograms of cocaine from North Hollywood [934]*934to San Francisco. The shipments were made in the hidden compartment of a blue Nissan station wagon. The driver of one of the shipments was Mauricio Antonio Gonzalez, a felon previously convicted of possessing cocaine with the intent to distribute. By May 12, 1992, Blandón had been indicted and his arrest was imminent.

The Task Force drew on an FBI Special Agent acting undercover to penetrate the money laundering of certain drug dealers. The agent identified Juan Masao Nomura as a key broker in Colombia. Through arrangements with this broker, on May 16, 1991 the agent received $110,000 to be wired to an account at the Banco Del.Estador in Palmi-ra-Valle, Colombia. Surveillance of the depositors of the cash revealed them to be Cornejo and Aviles.

The Task Force employed telephone toll records and court-authorized pen registers (devices mechanically recording the number called by, or calling to, a particular phone and the duration of the call) to draw inferences as to Cornejo’s customers. ' Through these telephone records a close business connection between' Cornejo and Donald Pomer-oy Roberts, Jr. of Portland, Oregon, was indicated. Roberts, a former felon convicted of the possession of marijuana, was already under investigation for drug dealing. On December 19, 1991, Special Agent Allen, working-undercover, met Roberts and heard from him that- Roberts’ friendship with Cor-nejo had begun in 197-7 when they were both imprisoned in Panama on charges of smuggling cocaine. Roberts asked Allen in his undercover guise to launder between $50,000 and $100,000. On April 1, 1992 Roberts was arrested and indicted for violation of federal narcotics laws.

By similar recordings of telephone calls at least eight other persons were identified as probable customers of Cornejo; six of them had criminal records. Among the lattér was Miguel Angel Barreneehea, who had a pager programmed to call a number believed to be Cornejo’s. On April 3, 1992, Steve Tse, a Special Agent of the Drug Enforcement Agency (DEA) in San Francisco, advised Agent Allen that he was investigating Barre-nechea for the importation and distribution of cocaine in the San Francisco area. On April 1, Tse, operating undercover, had discussed a potential purchase of drugs from Barreneehea. Agent Tse stated he believed Barreneehea sold between 150 and 200 kilograms of cocaine per month.

All of the above information was contained in a seventy-eight page affidavit sworn to by Agent Allen. Theresa J. Canepa, Assistant United States Attorney, submitted the affidavit in support of the government’s application for’ authorization of a thirty-day wiretap. The government sought a wiretap of two telephones used by Cornejo. The district court granted the government’s initial application as well as two extensions;

At the time the first application was made, the government had shown, using ordinary methods of investigation, that it had enough evidence to indict Blandón, a supplier of Cor-nejo in the south, and enough evidence to indict Roberts, a purchaser from Cornejo in the north. The government also had evidence of Cornejo and Aviles’s money-laundering. The government wanted more. As Agent Allen put it in his affidavit, the Task Force wanted “to knock out the entire organization.” For that reason the wiretaps were sought.

The defendants attack Allen’s affidavit of May 15, 1992 for omitting information about Agent Tse’s investigation of Barreneehea and for not indicating the possibility that Roberts might cooperate with the government. The statute requires the law enforcement officer who seeks authorization to' supply the authorizing court with “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.” 18 U.S.C. § 2518(l)(c). Agent Allen, the defendants contend, did not meet the statutory standard.

The reason Allen did not say more about Tse’s investigation of Barreneehea was that Tse had been closemouthed about it, even at a meeting on April 15, 1992 with Allen and AUSA Canepa where Tse was informed that a wiretap application was being considered. Tse was closemouthed to protect his own investigation. As Allen testified, such things are not common, but they do occur. They are the bane of government — agencies [935]*935charged with overlapping tasks sometimes more zealous in protecting their turf than in achieving the common objective.

If Tse had told Canepa all he had done, Allen would have had available for his affidavit the following information: Working undercover, Tse first met Barrenechea on January 14, 1992. Barrenechea offered to sell large quantities of cocaine at a price of $15,-000 per kilo if the buyer purchased 50 kilograms or more. Three days later they met again. Barrenechea again offered to arrange for the sale of a large quantity of cocaine. He also offered multi-ton quantities of marijuana that he said came from San Diego. He invited Tse to accompany him to San Diego or Los Angeles; Tse did not want to go and declined the invitation. Barrenechea said he frequently drove to Los Angeles for cocaine. The next contact occurred March 10 when Barrenechea paged Tse, and Tse told him he was interested in buying cocaine; a similar conversation occurred on March 26, again without any transaction taking place. On April 1, 1992 they met again and discussed price. Again Barrenechea invited Tse to accompany him to Los Angeles, and again Tse declined. Over the next several days they met or spoke several times dickering over the price and quantity Barrenechea would sell. Tse thought Barrenechea was exaggerating his ability to deliver cocaine. After a meeting on April 20, 1992, Tse did not see Barrenechea again before the date of Allen’s May 15,1992 affidavit.

What Tse could have told Allen before he filed the affidavit was developed at a Franks hearing lasting four days before a magistrate judge prior to trial in this case. The magistrate judge found that the government had made no intentional or reckless misstatements or omissions in applying for the wiretaps and that, even if it had, nothing material had been misstated or omitted. The district court reviewed the magistrate judge’s report de novo and denied the defendants’ motion to suppress.

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153 F.3d 931, 98 Cal. Daily Op. Serv. 6400, 98 Daily Journal DAR 8863, 1998 U.S. App. LEXIS 20135, 1998 WL 480908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-aviles-ca9-1998.