United States v. Perez-Valencia, No. 12-50063 (9th Cir. 2013)
Annotate this CasePlaintiff entered a conditional plea of guilty to conspiracy to distribute methamphetamine and subsequently appealed his conviction. On appeal, defendant argued that the wiretap application, filed by Assistant District Attorney Dennis Christy (ADA Christy), was invalid. The court disagreed with defendant that the language "the principal prosecuting attorney" found in 18 U.S.C. 2516(2) could not and should not be read to include a state assistant district attorney. The court concluded that compliance with section 2516(2) necessarily required an analysis of the applicable state wire tap statute, here California Penal Code 659.50. The court also held that "the" attorney designated to act in the district attorney's absence specified in section 629.50 must be acting in the district attorney's absence not just as an assistant district attorney designated with the limited authority to apply for a wiretap order, but as an assistant district attorney duly designated to act for all purposes as the district attorney of the political subdivision in question. The court concluded that the record was insufficient for it to determine the precise nature of ADA Christy's authority at the time he applied for the disputed wiretap. Accordingly, the court remanded for further findings of fact.
Court Description: Criminal Law. The panel remanded a criminal case for the limited purpose of full development of the factual record with respect to the authority of an assistant San Bernardino County district attorney as the person who applied for a state wiretap, and for a second issue should it become ripe. The panel held that the language “the principal prosecuting attorney” found in 18 U.S.C. § 2516(2) can include a state assistant district attorney who has been duly designated to act in the absence of the district attorney, and that compliance with § 2516(2) necessarily requires an analysis of the applicable state wiretap statute, here California Penal Code § 629.50. The panel also held that “the” attorney designated to act in the district attorney’s absence – as § 629.50 specifies – must be acting in the district attorney’s absence not just as an assistant district attorney designated with the limited authority to apply for a wiretap order, but as an assistant district attorney duly designated to act for all purposes as the district attorney of the political subdivision. Because the record is insufficient for the panel to determine the precise nature of the assistant district attorney’s authority at the time he applied for the disputed wiretap, the panel remanded for development of the factual record as to that authority. The panel did not address the government’s argument that the evidence subject to the defendant’s suppression motion was so attenuated from the alleged statutory violation that it need not be excluded, an issue that will only become ripe if the district court invalidates the wiretap on the ground that the assistant district attorney lacked authority to apply for it. The panel stated that it retains jurisdiction over any further appeals.
The court issued a subsequent related opinion or order on March 3, 2014.
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