NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 19 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50105
Plaintiff-Appellant, No. 8:20-cr-00040-DOC
v. MEMORANDUM* LOUISE W. MUREITHI, JUSTIN DOUGLAS COZART, JOHN MICHAEL KORZELIUS aka DR. K,
Defendants-Appellees.
Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding
Argued and Submitted December 8, 2023 San Francisco, California
Before: PARKER,** BYBEE, and LEE Circuit Judges.
Over the course of investigating an oxycodone pill mill conspiracy, the
government applied for and obtained six wiretaps. Each wiretap application was
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. supported by an affidavit from a special agent with the Drug Enforcement
Administration that detailed the government’s investigative efforts, totaling
altogether more than 400 pages. The investigation resulted in several people being
indicted in the United States District Court for the Central District of California.
Three1 of them—Louise W. Mureithi, Justin Douglas Cozart, and John Michael
Korzelius, (“Defendants-Appellees”)—moved to suppress the wiretap evidence.
The district court found that the latter four applications were insufficient and
ordered all communications intercepted under those wiretaps suppressed. The
government appealed. We reverse.
When considering motions to suppress wiretap evidence, we determine de
novo whether the information in an affiant’s affidavit amounts to “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” as required by 18 U.S.C. § 2518(1)(c). United States v.
Rodriguez, 851 F.3d 931, 937 (9th Cir. 2017).2 If we conclude that it does provide
such a statement, this Court “reviews for abuse of discretion the issuing court’s
finding that the wiretap was necessary under § 2518(3)(c) and its decision to grant
1 Defendant Pierre Delva, Jr. also moved to suppress, but was dismissed as a party while the appeal was pending. 2 Unless otherwise noted, all citations, quotation marks, and brackets are omitted.
2 the wiretap.” Id. This is also the same approach a district court must follow when
considering a motion to suppress wiretap evidence. Id. at 938.
The district court concluded that applications three through six failed to
provide a statement that satisfied 18 U.S.C. § 2518(1)(c) because each contained
inaccuracies and omissions. For example, the district court noted that the
government either “did not mention” or had only “said briefly that” certain
investigative techniques “would not be useful, without including specifics of the
techniques or the facts of this case.” We disagree. For nearly all the investigative
methods employed by the government, the applications not only properly disclosed
them but also adequately explained their investigative limitations. For example,
the district court concluded that the government failed to adequately discuss how it
successfully seized 6,000 pills via “a FedEx mail lookout.” However, not only did
the government identify its successful seizure of the 6,000 pills in the third wiretap
application, but it also explained that the seizure was not the result of a mere
lookout; rather, it was the product of a combination of intercepting calls,
conducting related surveillance, and executing a search warrant.
As the government concedes, it omitted one investigative technique, but we
have little difficulty concluding that this omission was not material. United States
v. Estrada, 904 F.3d 854, 861–62 (9th Cir. 2018). If, as here, the knowledge of the
existence of the omitted investigative technique would have no effect on the
3 issuing court’s decision, then the omission is not material. United States v. Rivera,
527 F.3d 891, 901 (9th Cir. 2008). Here, the government’s only omission was that
it stated that investigators were “planning” a trash search of ChiroMed, one of the
pill mill clinics, for the week of October 22, 2018, but it had actually already
conducted a trash search on October 19, 2018. The government corrected this
omission in the final wiretap application.
We acknowledge that at a few points, the government relied on generic
explanations, but our precedent makes clear that such an approach is not invariably
fatal. An affidavit satisfies § 2518(1)(c) “as long as it as a whole speaks in case-
specific language even if some language in the affidavit may be conclusory or
merely describes the inherent limitations of certain investigatory techniques.”
Estrada, 904 F.3d at 861. Put slightly differently, a wiretap application may
satisfy § 2518(1)(c) “despite the fact that it included some statements merely
describing the inherent limitations of traditional investigative techniques” if it
included case-specific explanations. Rivera, 527 F.3d at 899. Here, we have little
hesitation in concluding that the government sufficiently laid out a full and
complete statement of the investigative procedures it employed and their
limitations for each wiretap application.
As to the second step, the issuing court did not abuse its discretion in finding
the wiretaps necessary. Necessity “is evaluated in light of the government’s need
4 not merely to collect some evidence, but to develop an effective case against those
involved in the conspiracy.” United States v. Garcia-Villalba, 585 F.3d 1223,
1228 (9th Cir. 2009). While 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.” United States v. McGuire, 307 F.3d 1192,
1196–97 (9th Cir. 2002). This Court is particularly deferential towards an issuing
court’s findings of necessity when, as here, the investigation involves a conspiracy.
See United States v. Reed, 575 F.3d 900, 909 (9th Cir. 2009).
None of Defendants-Appellees’ challenges to the necessity of the wiretaps is
persuasive. First, they argue each affidavit built on one another without
independently establishing probable cause and necessity. “Although the
government may not rely on the conclusion that a previous wiretap was necessary
to justify the current application, historical facts from previous applications,
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 19 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50105
Plaintiff-Appellant, No. 8:20-cr-00040-DOC
v. MEMORANDUM* LOUISE W. MUREITHI, JUSTIN DOUGLAS COZART, JOHN MICHAEL KORZELIUS aka DR. K,
Defendants-Appellees.
Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding
Argued and Submitted December 8, 2023 San Francisco, California
Before: PARKER,** BYBEE, and LEE Circuit Judges.
Over the course of investigating an oxycodone pill mill conspiracy, the
government applied for and obtained six wiretaps. Each wiretap application was
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. supported by an affidavit from a special agent with the Drug Enforcement
Administration that detailed the government’s investigative efforts, totaling
altogether more than 400 pages. The investigation resulted in several people being
indicted in the United States District Court for the Central District of California.
Three1 of them—Louise W. Mureithi, Justin Douglas Cozart, and John Michael
Korzelius, (“Defendants-Appellees”)—moved to suppress the wiretap evidence.
The district court found that the latter four applications were insufficient and
ordered all communications intercepted under those wiretaps suppressed. The
government appealed. We reverse.
When considering motions to suppress wiretap evidence, we determine de
novo whether the information in an affiant’s affidavit amounts to “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” as required by 18 U.S.C. § 2518(1)(c). United States v.
Rodriguez, 851 F.3d 931, 937 (9th Cir. 2017).2 If we conclude that it does provide
such a statement, this Court “reviews for abuse of discretion the issuing court’s
finding that the wiretap was necessary under § 2518(3)(c) and its decision to grant
1 Defendant Pierre Delva, Jr. also moved to suppress, but was dismissed as a party while the appeal was pending. 2 Unless otherwise noted, all citations, quotation marks, and brackets are omitted.
2 the wiretap.” Id. This is also the same approach a district court must follow when
considering a motion to suppress wiretap evidence. Id. at 938.
The district court concluded that applications three through six failed to
provide a statement that satisfied 18 U.S.C. § 2518(1)(c) because each contained
inaccuracies and omissions. For example, the district court noted that the
government either “did not mention” or had only “said briefly that” certain
investigative techniques “would not be useful, without including specifics of the
techniques or the facts of this case.” We disagree. For nearly all the investigative
methods employed by the government, the applications not only properly disclosed
them but also adequately explained their investigative limitations. For example,
the district court concluded that the government failed to adequately discuss how it
successfully seized 6,000 pills via “a FedEx mail lookout.” However, not only did
the government identify its successful seizure of the 6,000 pills in the third wiretap
application, but it also explained that the seizure was not the result of a mere
lookout; rather, it was the product of a combination of intercepting calls,
conducting related surveillance, and executing a search warrant.
As the government concedes, it omitted one investigative technique, but we
have little difficulty concluding that this omission was not material. United States
v. Estrada, 904 F.3d 854, 861–62 (9th Cir. 2018). If, as here, the knowledge of the
existence of the omitted investigative technique would have no effect on the
3 issuing court’s decision, then the omission is not material. United States v. Rivera,
527 F.3d 891, 901 (9th Cir. 2008). Here, the government’s only omission was that
it stated that investigators were “planning” a trash search of ChiroMed, one of the
pill mill clinics, for the week of October 22, 2018, but it had actually already
conducted a trash search on October 19, 2018. The government corrected this
omission in the final wiretap application.
We acknowledge that at a few points, the government relied on generic
explanations, but our precedent makes clear that such an approach is not invariably
fatal. An affidavit satisfies § 2518(1)(c) “as long as it as a whole speaks in case-
specific language even if some language in the affidavit may be conclusory or
merely describes the inherent limitations of certain investigatory techniques.”
Estrada, 904 F.3d at 861. Put slightly differently, a wiretap application may
satisfy § 2518(1)(c) “despite the fact that it included some statements merely
describing the inherent limitations of traditional investigative techniques” if it
included case-specific explanations. Rivera, 527 F.3d at 899. Here, we have little
hesitation in concluding that the government sufficiently laid out a full and
complete statement of the investigative procedures it employed and their
limitations for each wiretap application.
As to the second step, the issuing court did not abuse its discretion in finding
the wiretaps necessary. Necessity “is evaluated in light of the government’s need
4 not merely to collect some evidence, but to develop an effective case against those
involved in the conspiracy.” United States v. Garcia-Villalba, 585 F.3d 1223,
1228 (9th Cir. 2009). While 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.” United States v. McGuire, 307 F.3d 1192,
1196–97 (9th Cir. 2002). This Court is particularly deferential towards an issuing
court’s findings of necessity when, as here, the investigation involves a conspiracy.
See United States v. Reed, 575 F.3d 900, 909 (9th Cir. 2009).
None of Defendants-Appellees’ challenges to the necessity of the wiretaps is
persuasive. First, they argue each affidavit built on one another without
independently establishing probable cause and necessity. “Although the
government may not rely on the conclusion that a previous wiretap was necessary
to justify the current application, historical facts from previous applications,
particularly those within the same investigation, will almost always be relevant. . . .
If these facts are incorporated into the latest affidavit, the issuing judge may
examine them.” Garcia-Villalba, 585 F.3d at 1232. Here, wiretap applications
three and four attached copies of the prior affidavits, and all of the challenged
wiretap applications incorporated by reference the affidavits submitted for prior
applications. Doing so was permissible and did not amount to an attempt to “shoe-
horn” prior investigative work into support for additional wiretaps. United States
5 v. Gonzalez, Inc., 412 F.3d 1102, 1115 (9th Cir. 2005), amended on denial of
reh’g, 437 F.3d 854 (9th Cir. 2006).
Second, Defendants-Appellees argue that the government circumvented the
necessity requirement by making the goals of the investigation impermissibly
broad. While the “government may not cast its investigative net so far and so wide
as to manufacture necessity in all circumstances,” United States v. Blackmon, 273
F.3d 1204, 1211 (9th Cir. 2001), robust investigative goals targeting complex
conspiracies should be considered when evaluating necessity, see, e.g., United
States v. Forrester, 616 F.3d 929, 944 (9th Cir. 2010) (acknowledging the
investigative goals “not yet achieved through the use of conventional techniques,
including the identification of all coconspirators” as justifying the necessity
finding). The investigation in this case focused on a complex oxycodone
conspiracy that involved a great many players, multiple clinics, and multiple states.
For these reasons, we REVERSE the district court’s order suppressing all
evidence collected from wiretaps three through six and REMAND for further
proceedings consistent with this Memorandum.