Unpublished Disposition, 930 F.2d 30 (9th Cir. 1990)

MEMORANDUM^* 

Robert Paris and Carlos C. Sotelo appeal their November 18, 1988 convictions, after a joint trial, for conspiracy to distribute thirteen kilograms of cocaine in violation of 21 U.S.C. § 846 as applied to 21 U.S.C. § 841(a) (1), and for ten counts of using telephones to facilitate the commission of a felony drug offense in violation of 21 U.S.C. § 843(b). Sotelo also appeals his two convictions, for possession with intent to distribute cocaine, both in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2.

Both appellants allege that the district court erred (1) by denying them a full evidentiary hearing as to necessity because defects in the Government's wiretap affidavit did not establish a Franks/Ippolito violation, (2) by ruling that the Government's wiretap application satisfied the statutory necessity requirement of 18 U.S.C. § 2518(1) (c) and (3) (c).

Paris alone alleges that the district court erred on a question of double hearsay testimony (3) by ruling that coconspirator Allen Thomas's statements to Patricia Moore, incriminating Paris, were admissible under Federal Rule of Evidence 801(d) (2) (E) as nonhearsay statements made "in furtherance of" a conspiracy, and (4) by ruling that Moore's prior, inconsistent, unsworn statements, which repeated Thomas's statements to her, were inadmissible hearsay under Rule 801(d) (1), but were admissible under Rule 803(24), the "catch-all" exception to the hearsay rule.

We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Simon C. Sotelo, older brother of appellant Carlos C. Sotelo, established an extensive cocaine distribution network on the west coast of the United States. Simon oversaw purchases of cocaine from suppliers in Los Angeles and distribution of the drug throughout the San Francisco Bay area. Carlos was a willing participant in his brother's criminal conspiracy. Appellant Robert Paris was one of Simon's regular customers in the Vallejo, California area. A wiretap authorized on April 24, 1987, and extended by three court orders until July 29, 1987, recorded cocaine sales to Robert Paris and Gary Nave.

One of Simon's buyers during 1986 and 1987 was Vallejo cocaine trafficker Allen Thomas. In March 1986, Patricia Moore began working for Thomas at his market in Vallejo. Soon thereafter, Moore became involved in Thomas's cocaine business, collecting payments and dropping off supplies of cocaine to buyers. Moore later became an informant for the Vallejo police and agents of the United States Drug Enforcement Administration (DEA). Acting undercover for the Vallejo police, she completed a controlled purchase of drugs from Elmus Billingsley.

Simon Sotelo's drug ledgers included listings for Thomas, Moore, Billingsley, and Paris. Paris was a Vallejo resident whose telephone records showed frequent brief conversations with Simon. Several of these conversations, intercepted by the Government's court-authorized wiretap, involved narcotics transactions between Simon and Paris. Paris was also in telephone contact with Thomas. At trial, Paris offered no innocent explanations for his relationships with these drug dealers.

At trial, informant Moore surprised the Government by testifying that Thomas had never mentioned Paris's name to her in connection with drug deals or cocaine trafficking. She admitted knowing Paris, but insisted that they had only a "casual relationship." Vallejo police lieutenant Montgomery, however, testified that, on several occasions in 1986, Moore told him that Thomas had told her about Paris's involvement in their cocaine distribution conspiracy. Montgomery had recorded each of Moore's statements within minutes or hours of Moore's reporting them to the police. Montgomery corroborated several of her statements by surveillance or undercover drug purchases.

The trial court, over Paris's double hearsay objection, admitted Thomas's statements to Moore under Federal Rule of Evidence 801(d) (2) (E) as party admissions by a coconspirator during the course and in furtherance of the conspiracy. The court also admitted Moore's statements to Montgomery under Rule 803(24), the "catch-all" exception to the hearsay rule.

STANDARDS OF REVIEW

The first issue on appeal, the ultimate question of whether false statements and omissions were necessary to a finding of necessity, is a mixed question of law and fact subject to de novo review. United States v. Ippolito, 774 F.2d 1482, 1484 (9th Cir. 1985). As for issue two, where a defendant fails to demonstrate material defects in a wiretap affidavit, the magistrate's necessity determination, based on the original unredacted affidavit, is reviewed for clear error. United States v. Dozier, 844 F.2d 701, 706 (9th Cir.), cert. denied, 488 U.S. 927 (1988).

Regarding issues three and four, an incorrect evidentiary ruling by a district court amounts to nonconstitutional error if fourth amendment claims are not implicated. Where a district court commits a nonconstitutional error, the court of appeals must reverse unless the error was harmless. A nonconstitutional error is harmless within the meaning of Federal Rule of Criminal Procedure 52(a) if it is more probable than not that the error did not materially affect the jury's verdict. United States v. Valle-Valdez, 554 F.2d 911, 915-16 (9th Cir. 1977).

ANALYSIS

I. FALSE STATEMENTS AND OMISSIONS IN WIRETAP AFFIDAVIT

A. Franks evidentiary hearing for probable cause in defective search warrant affidavit.

In Franks v. Delaware, 438 U.S. 154, 156 (1978), the United States Supreme Court held that evidence seized pursuant to a search warrant must be suppressed if the defendant can prove by a preponderance of the evidence that: (1) in the affidavit in support of the search warrant, the affiant included a statement which he knew was false or whose veracity he recklessly disregarded,¹  and (2) the false statement was necessary to the magistrate's finding of probable cause. Although Franks dealt exclusively with false statements in warrant affidavits, this circuit has since extended Franks to include deliberate and reckless omissions. United States v. Stanert, 762 F.2d 775, 781, amended, 769 F.2d 1410 (9th Cir. 1985).

Even if a defendant satisfies the first threshold requirement of Franks, no evidentiary hearing is required unless the defendant can show that setting aside the alleged defects would extinguish probable cause. If, after setting aside the alleged defects, "there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required." Franks, 438 U.S. at 171-72.

In United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir. 1985), we held that Franks applies to wiretap affidavits submitted to satisfy the statutory "necessity" requirement of 18 U.S.C. §§ 2518(1) (c)²  and (3) (c).³ 

B. Appellants not entitled to Franks/Ippolito evidentiary hearing for "necessity" in defective wiretap affidavit.

On June 3, 1988, the appellants requested a full Franks evidentiary hearing as to necessity. In a memorandum below, they alleged seven intentional omissions or false statements in the Government's wiretap affidavits of April 24, 1987. On June 16, 1988, the district court denied the defendants' motion for a Franks hearing on the ground that the omissions were immaterial and would not have altered the finding of "necessity" under 18 U.S.C. §§ 2518(1) (c) & (3) (c).

On appeal, the appellants assert a series of omissions and misleading statements in the wiretap affidavit. We discuss these alleged inaccuracies in three categories because they were related to the roles of (1) Elmus Billingsley, (2) Ed Wingender, and (3) Michael Moren.

First, appellants allege a series of omissions and misleading statements in the April 24, 1987 affidavit which were purportedly aimed at concealing the existence of a separate and potentially fruitful DEA investigation into the Sotelo conspiracy. Appellants assert that the purpose and effect of these intentional defects were to conceal the fact that there was, through coconspirator Elmus Billingsley, an alternate means of penetrating the conspiracy. Appellants contend that the wiretaps were therefore unnecessary.

As the Government points out, this is a new argument raised for the first time on appeal. We therefore decline to review it. Appellants contend that this argument was raised below. However, it was raised below for a different purpose, to demonstrate a lack of statutory necessity, not to allege a material defect in a wiretap affidavit. United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir. 1987).

Second, appellants allege defects in the April 24, 1987 affidavit which concealed the identity and potential usefulness of informant Ed Wingender. Even if this assertion were accurate, the district court correctly ruled that paid informant Wingender played a minor role in the conspiracy. He merely introduced pilot and undercover DEA agent Michael Moren to conspirator Ray Lane. Even assuming that these defects were the product of the Government's intentional misrepresentation, their removal or correction would not have not have extinguished necessity for the wiretaps.

Third, appellants allege that the April 24, 1987 affidavit understated the key role played by undercover agent Moren, who had deeply penetrated the conspiracy. The district court correctly found this collection of alleged defects, even if true, would not have diminished necessity for the wiretaps. Moren's role as a pilot and smuggler limited his access to information about the conspiracy's distribution methods and the identities of Colombian suppliers. He could not acquire such information without subjecting himself to unacceptable risks.

II. WIRETAPS NECESSARY UNDER 18 U.S.C. §§ 2518(1) (c) & (3) (c)

A. Echavarria Does Not Preclude Defendants from Raising Necessity Issue.

The Government points out that this issue has already been raised and decided in the companion case of United States v. Echavarria-Olarte, No. 88-1321, slip op. 5863, 5871-74 (9th Cir. June 7, 1990). Indeed, Carlos and Paris were party to the pretrial motion to suppress. However, we agree with appellants that issue preclusion does not bar appellate review of this question, because they were not parties to Echavarria's appeal. United States v. Brown, 761 F.2d 1272, 1276 (9th Cir. 1985).

B. District Court Correctly Found Necessity for Wiretaps.

Carlos and Paris are formally entitled to independent review of necessity for the wiretaps which implicated them in the cocaine distribution conspiracy. For the reasons stated in Echavarria-Olarte, we AFFIRM the finding of the district court that the Government satisfied the statutory necessity requirement for its wiretaps.

III. ADMISSION OF DOUBLE HEARSAY STATEMENTS INCRIMINATING

PARIS WAS HARMLESS ERROR

Paris argues that the court erred by admitting into evidence eight statements made by Allen Thomas to Patricia Moore. Moore then repeated Thomas's statements to Lieutenant Lou Montgomery. Those statements implicated Paris as a key participant in the drug distribution conspiracy.

The eight statements in question are summarized below. The numbers on the left indicate the six different occasions on which Moore repeated the statements allegedly made to her by Thomas.

1. April 28, 1986: Paris was one of Thomas's "prime" customers.

2a. First week of August, 1986: Paris left $21,000 at Thomas's store to pay for a prior purchase of cocaine, and

2b. Paris was negotiating the purchase of a "restaurant-size" can of cocaine..

3. August 7 and 8, 1986: Paris came by Thomas's store to pick up eight five-ounce cans of cocaine.

4. September 16, 1986: Thomas instructed Moore on September 16, 1986 to pick up five ounces of cocaine that very same day from Simon Sotelo and deliver one ounce to Paris.

5a. September 17, 1986: Paris was currently dealing directly with Simon Sotelo, and

5b. Paris was currently selling twenty ounces of cocaine every two weeks.

6. On September 22, 1986, Paris would be going to Oakland to pick up cocaine from Simon Sotelo.

Assuming, arguendo, that the district court did err by admitting the double hearsay testimony of officer Montgomery, this ruling was harmless error as to defendant Paris within the meaning of Federal Rule of Criminal Procedure 52(a).⁴  Where, after setting aside any allegedly objectionable testimony, there still remains overwhelming and convincing evidence of a defendant's guilt, a court may find harmless error in the admission of that testimony. United States v. Kinsey, 843 F.2d 383, 388-89 (9th Cir. 1988), cert. denied, 487 U.S. 1223 (1988).

Disregarding Montgomery's testimony as inadmissible, the Government has presented evidence sufficient to prove Paris's guilt beyond a reasonable doubt. Paris was listed as an account in Simon Sotelo's drug transaction ledgers. Court-approved wiretaps produced several recorded conversations between Simon and Paris in which the two men arranged drug transactions. On May 1, 1987, following a telephone conversation in which they agreed to meet at "the usual place," agents observed Simon deliver a package to Paris at Carrow's restaurant near the Oakland airport. At trial, Paris offered no evidence or innocent explanation for his involvement with Simon, a convicted cocaine trafficker. In light of this additional evidence against Paris, the court's evidentiary ruling was harmless error.

CONCLUSION

As to issue four, any error in the district court's evidentiary ruling would have merely constituted harmless error. We find no error in the other rulings of the district court.

AFFIRMED.