Opinion
No. 06-50429.
Argued and Submitted April 11, 2007.
Filed April 30, 2007.
Becky S. Walker, Esq., Damian J. Martinez, Esq., Office of the U.S. Attorney Criminal Division, Los Angeles, CA, for Plaintiff-Appellee.
Alan I. Rubin, Esq., Adelson and Rubin, Los Angeles, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. No. CR-05-00524-ABC-2.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Defendant Oscar Moises Hernandez conditionally pled guilty to conspiring to possess methamphetamine with the intent to distribute in violation of 21 U.S.C. § 846. He appeals the denial of his suppression motion and motion for a Franks hearing. We affirm.
As the parties are familiar with the facts, we refer to them only as necessary. I. Franks hearing
The government sought a wiretap order. Hernandez asserts that the government could not have shown necessity for the wiretap had certain omitted facts been revealed to the judge who ruled on the wiretap application.
Hernandez satisfies the first prong of the preliminary showing required to obtain a Franks hearing. The affiant, by virtue of her leadership role in the federal investigation, either knew or should have known about the successful controlled buy and attempted buy. Her failure to include these facts in the affidavit supports a finding of reckless or intentional omission. See United States v. Gonzalez, Inc., 412 F.3d 1102, 1111 (9th Cir. 2005).
However, Hernandez fails to establish the second Franks prong. The contested omissions, had they been included, would not have shown that traditional means would have allowed the government to infiltrate the conspiracy. See United States v. Fernandez, 388 F.3d 1199, 1236 (9th Cir. 2004) (finding necessity, despite the willingness of two confidential informants to give "significant information," because that information would not have revealed the full extent of the conspiracy). Therefore, we conclude that the district court did not clearly err in finding that the omissions were immaterial to the finding of necessity. See id. at 1234; cf. United States v. Ippolito, 774 F.2d 1482, 1486-87 (9th Cir. 1985).
II. Necessity
It is well-established that § 2518's mandate to submit a full and complete statement of facts "require[s] strict adherence." United States v. Blackmon, 273 F.3d 1204, 1207 (9th Cir. 2001). Inclusion of the same evidence that would go into a search warrant affidavit would satisfy this requirement. In contrast, by submitting a sloppy affidavit, the government risks both its credibility and its case.
Here, however, we conclude that the district court did not abuse its discretion in finding necessity. See United States v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986) ("[A] judge authorizing a wiretap has considerable discretion."). The affidavit established that traditional methods were unlikely to reveal Hernandez's suppliers and customers and that such methods therefore were unable to satisfy a major goal of the investigation. See United States v. Canales Gomez, 358 F.3d 1221, 1225 (9th Cir. 2004); United States v. Shryock, 342 F.3d 948, 976 (9th Cir. 2003).