United States of America v. RAY MAXWELL, Max

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAY MAXWELL, Max,
Defendant - Appellant.
No. 08-50226
D.C. No. 2:04-cr-00732-RSWL-1
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Argued and Submitted December 11, 2009
Pasadena, California
Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.
Ray Maxwell appeals the district court’s denial of his motion to suppress
evidence from the March 31, 2004, wiretap order. Maxwell subsequently pled
guilty to violations of 18 U.S.C. §§ 370 (conspiracy), 2113(a), (d) (attempted and
armed bank robbery), and 924(c) (discharge of a firearm during and in relation to a
crime of violence). Maxwell contends that the wiretap application is facially
FILED
DEC 30 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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insufficient, that the wiretap application failed to demonstrate necessity, and that
the district court abused its discretion in finding that the wiretap application
demonstrated necessity. We have jurisdiction under 28 U.S.C. § 1291 and we
affirm.
The wiretap application is facially sufficient, despite erroneously naming
Special Agent Trott as the affiant in the application, because 18 U.S.C. § 2518 does
not require that the application list the affiant’s name. Moreover, the application
was properly submitted by Assistant United States Attorney Garth Hire, an
“attorney authorized by law to prosecute or participate in the prosecution of such
offenses” under 18 U.S.C. § 2510(7), and was accompanied by an affidavit that
showed the correct name of the affiant, Special Agent Stephen May. The clerical
error with respect to the affiant’s name in the application does not require
suppression of the wiretap evidence. See United States v. Staffeldt, 451 F.3d 578,
582 (9th Cir. 2006), modified, 523 F.3d 983 (9th Cir. 2008).
The wiretap application provides facts sufficient to demonstrate necessity
because Special Agent May’s affidavit supplies specific and sufficient reasons that
relate to the known behavior of the Rollin’ 30s Crips, and explains what
investigative methods had already been tried, and why other investigative methods
would not reasonably be likely to succeed or would endanger the community, the

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police, or a confidential witness. See id. For the same reasons, the district court
did not abuse its discretion in finding that the wiretap application demonstrated
necessity. United States v. McGuire, 307 F.3d 1192, 1197 (9th Cir. 2002).
AFFIRMED.

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