Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1988)

MEMORANDUM^* 

John Arthur Keller was convicted of distribution of cocaine, conspiracy, and use of a telephone to facilitate the conspiracy. Stanley Paul Kudish entered a conditional plea of guilty to distribution of cocaine. They appeal on grounds that they should have received a hearing on their motion to suppress evidence from wire and oral intercepts, that the government did not show such intercepts were necessary, and that certain conversations were inadmissible hearsay. We affirm.

* After Judge Rothstein agreed that appellants could have a hearing on their motion to suppress, Judge McGovern replaced her. He required appellants to make a showing that would warrant a hearing. Counsel submitted materials, and Judge McGovern declined to hold a hearing. We review the decision whether to hold an evidentiary hearing for abuse of discretion. See United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986) (motion to suppress).

Judge McGovern's decision was not abuse of discretion. Appellants had failed to apprise him of the earlier arrangement providing for a hearing. In any event, appellants demonstrate no prejudice from the requirement that they make a showing. The materials they submitted did not show that a hearing, including examination of government agents, would add to the information Judge McGovern already had considered. Facts bearing on the validity of the electronic surveillance were not at issue, see id.; appellants failed to support their claim that the affidavit underlying the government's request harbored material misrepresentations and omissions. Indeed, in their brief appellants accept that the government agent was "forthright" as to crucial elements of the affidavit.

II

To meet the necessity requirement set out in 18 U.S.C. § 2518(1) (c), the government's request for electronic surveillance must include:

[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.

Although we review de novo whether the government submitted a "full and complete statement" in accordance with section 2518(1) (c), we review for abuse of discretion a district court's conclusion that electronic surveillance was necessary. United States v. Brown, 761 F.2d 1272, 1275 (9th Cir. 1985).

The government did submit a full and complete statement. The agent's affidavit described the procedures that had failed during the four month investigation to date. These procedures included use of an informant, an undercover agent, pen registers, telephone records, a United States Postal "mail cover," and ordinary surveillance. The affidavit specified why these procedures had failed. Reasons included the target's residence in a condominium complex, his secretiveness, his refusal to introduce his supplier to the informant or undercover agent, and the lack of precise identification from telephone records. The affidavit also detailed why other procedures had been rejected as unlikely to succeed: a search warrant would not produce the target's supplier; an investigative grand jury would expose the investigation; the target, a significant cocaine trafficker, did not merit immunity.

The agent's affidavit meets the requirements of section 2518(1) (c). On the basis of this affidavit, the district court did not abuse its discretion in concluding that electronic surveillance was necessary.

III

Federal Rule of Evidence 801(d) (2) (E) establishes that statements made by a co-conspirator in furtherance of a conspiracy are not hearsay. We review for clear error a district court's conclusion that statements were in furtherance of the conspiracy. United States v. Smith, 790 F.2d 789, 794 (9th Cir. 1986).

Statements are in furtherance of a conspiracy if they keep a conspirator abreast, United States v. Anderson, 813 F.2d 1450, 1456 (9th Cir. 1987); induce continued participation, United States v. Eaglin, 571 F.2d 1069, 1083 (9th Cir. 1977), including by describing a supply source, United States v. Paris, 827 F.2d 395, 400 (9th Cir. 1987), or quantities of narcotics available, United States v. Echeverry, 759 F.2d 1451, 1457 (9th Cir. 1985); allay fears, United States v. Layton, 720 F.2d 548, 557 (9th Cir. 1983); explain co-conspirators' roles, United States v. Moody, 778 F.2d 1380, 1383 (9th Cir. 1985), amended, 791 F.2d 707 (9th Cir. 1986); or aim to avoid detection, United States v. Sears, 663 F.2d 896, 905 (9th Cir. 1981). The record supports a conclusion that all conversations appellants challenge fit into one or more of the above categories. The district court's conclusion that these conversations were in furtherance of the conspiracy was not clear error.

Finally, certain of the challenged conversations also included statements attributed to a third party. The government offered these statements not to prove the truth of the matters asserted, but to show a co-conspirator's state of mind. The district court's decision to admit these statements into evidence was not abuse of discretion. See United States v. Cowley, 720 F.2d 1037, 1040 and n. 1. (9th Cir. 1983).

AFFIRMED.