United States v. Aviles

170 F.3d 863, 99 Cal. Daily Op. Serv. 1847, 99 Daily Journal DAR 2397, 1998 U.S. App. LEXIS 36918, 1999 WL 133263
Court of Appeals for the Ninth Circuit·Decided August 18, 1998·No. Nos. 96-10110, 96-10167, 97-10251, 97-10289·Published·Cited by 5 cases

Opinion

ORDER

The opinion filed on August 18, 1998 is amended as follows:

153 F.3d at 937, sec.6, ¶ 2: Remove the third sentence and “On the other hand,” from the fourth sentence and insert, “Yet, talcing into account all the factors in the application, an impartial judge could not have denied the application on the ground that the necessity for the wiretap had not been shown.”

Id. at 938: Under “Compliance With Speedy Trial Act” replace ¶ beginning “On these premises” and the calculations that follow with:

On these premises there were eight hundred and forty-seven excludable days. The Speedy Trial Act was not violated. Our calculations are as follows:

Motions Pending Excludable Days

12/21/92-3/3/93 73 days

4/12/93-5/24/93 43 days

6/7/93-2/18/94 257 days

3/14/94-4/6/94 24 days

4/11/94-5/20/94 40 days

6/10/94-6/11/95 367 days 804 days

Continuances Excludable Days

12/18/92-12/20/92 3 days

■ 4/25/93-6/6/93 13 days

2/19/94-3/13/94 23 days

4/7/94-4/10/94 4 days 43 days

TOTAL 847 days

OPINION

NOONAN, Circuit Judge:

Rafael Cornejo, Salvador Aviles, Miguel Angel Barrenechea and Carlos A. Perez appeal their 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. Allen 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 Blaekhawk, 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 to 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 [866] 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 1977 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 latter was Miguel Angel Barrenechea, 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 Barrenechea. Agent Tse stated he believed Barrenechea 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 Barrenechea 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 Barrenechea 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 charged with overlapping tasks sometimes more zealous in protecting their turf than in achieving the common objective.

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United States v. Aviles, 170 F.3d 863, 99 Cal. Daily Op. Serv. 1847, 99 Daily Journal DAR 2397, 1998 U.S. App. LEXIS 36918, 1999 WL 133263 (9th Cir. 1998).

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