United States v. Bennett

219 F.3d 1117, 2000 WL 1035796
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 28, 2000
DocketNos. 97-50605, 98-50002, 98-50070, 98-50209, 98-50212, 98-50514
StatusPublished
Cited by69 cases

This text of 219 F.3d 1117 (United States v. Bennett) 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. Bennett, 219 F.3d 1117, 2000 WL 1035796 (9th Cir. 2000).

Opinion

DAVID R. THOMPSON, Circuit Judge:

These consolidated appeals of defendants/appellants Daniel Ray Bennett, Edward Stanley, Victor Murillo, Rim Harris, Monica Renee Gant, and Richard Washington involve convictions resulting from an investigation of Stanley’s drug organization, headquartered in Los Angeles, California. Bennett and Stanley entered conditional guilty pleas to conspiracy to commit interstate murder-for-hire resulting in death, in violation of 18 U.S.C. § 1958. Murillo and Harris entered conditional guilty pleas to possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Gant entered a conditional guilty plea to conspiracy to possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 846, and a jury convicted Washington of that same count.1

All of the appellants challenge the district court’s denial of their motion to suppress wiretap evidence.2 They allege that, in its wiretap application for the drug conspiracy investigation, the government failed to show necessity, failed to provide a separate necessity showing for its murder-for-hire investigation, provided an incomplete periodic wiretap report to the court, and failed to minimize the interception of innocent telephone calls. They also challenge the district court’s denial of a Franks hearing. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Harris also appeals the district court’s determination that she lacked standing to challenge the legality of the wiretaps. Finally, Gant’s attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and moves to withdraw as counsel, asserting a failure to discover any arguable issues for- appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court’s denial of the motion to suppress evidence from the wiretaps and the court’s denial of the requested Franks hearing. We do not reach Harris’s standing argument. We grant Gant’s attorney’s motion to withdraw.

1. Facts

The government’s undercover investigation of the Stanley drug organization began in 1996. In that investigation, law enforcement officials used confidential informants and an undercover officer. They also conducted physical surveillance of Stanley, installed pen registers on two telephone lines, analyzed toll records, and monitored hand-to-hand drug sales by Stanley. Despite information gained using these methods of investigation, the agents were unable to determine the full scope of the drug-trafficking conspiracy. They lacked knowledge of Stanley’s drug suppliers and major customers.

On October 1, 1996, the government applied for and obtained a court order authorizing wiretap surveillance of two telephone lines . for 30 days. FBI Special Agent Ronald Twersky (“Agent Twersky”) filed affidavits in support of the wiretaps; the district court authorized them and twice extended their length.

Missing from the affidavits were details about a key government informant, Andrew Chambers. Although Agent Twer-[1121]*1121sky detailed the role Chambers played in the investigation, he failed to mention pertinent impeachment material. Chambers’s checkered history included in part: lying under oath in previous cases, lying to federal agents about his prior arrest history, and failing to pay income taxes. Several federal circuit courts have documented Chambers’s questionable credibility in unpublished and published opinions. See, e.g., United States v. Duke, 50 F.3d 571, 578 (8th Cir.1995) (“The record, however, clearly demonstrates that Chambers did in fact perjure himself ... when he testified that he had never been arrested or convicted.”).

II. Analysis

A. Necessity

To establish that a wiretap is necessary, the application for the tap must provide “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.”3 18 U.S.C. § 2518(1)(c). The issuing judge must then determine whether “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. § 2518(3)(c). This necessity requirement “exists in order to limit the use of wiretaps, which are highly intrusive.” United States v. Commito, 918 F.2d 95, 98 (9th Cir.1990). We review for abuse of discretion an issuing judge’s decision that a wiretap was necessary. See United States v. Brone, 792 F.2d 1504, 1506 (9th Cir.1986).

1. The Drug Conspiracy Investigation

Law enforcement officials tried to penetrate the Stanley drug conspiracy using an undercover agent, confidential informants, videotapes, pen registers, toll records, trap and trace devices, TRW credit reports, and physical surveillance. They amassed information implicating Stanley in drug distribution. They also learned of the existence of the ongoing drug conspiracy of which Stanley served as the leader. They were unable, however, to obtain information about the extended organization, such as other members, couriers, buyers, and suppliers.

The most successful informant, Chambers, tried to infiltrate the organization. He made contact with Stanley, and on several occasions law enforcement officials monitored his purchase of drugs from Stanley. Chambers’s relationship with Stanley as a drug customer, and not as an involved member of the drug-trafficking organization, however, limited the amount of inside information he could obtain. He was able to buy drugs from Stanley, but Stanley did not disclose his source of supply nor did he identify other members of his organization.

Agent Twersky interviewed a second informant who agreed to provide information about the Stanley organization in exchange for a reduced prison sentence he was serving. This informant’s incarceration, however, prevented him from participating in the investigation. Agent Twersky’s third informant attempted but failed to engage Stanley in drug-related conversations. The fourth informant was too afraid to testify. Finally, Agent Twersky debriefed investigators from the police department and the Drug Enforcement Administration (“DEA”) in Las Vegas. In particular, Agent Twersky interviewed an undercover officer who infiltrated the Stanley organization for a brief period in 1993, but that officer’s interaction with Stanley ended abruptly after about one week.

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219 F.3d 1117, 2000 WL 1035796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bennett-ca9-2000.