the United States of America v. Angelica Maria Rodriguez

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable David A. Ezra, Senior U.S. District Judge for the***
District of Hawaii, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANGELICA MARIA RODRIGUEZ,
Defendant - Appellant.
No. 11-10442
D.C. No. 4:08-cr-00083-PJH-12
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted December 7, 2012**
San Francisco, California
Before: O’SCANNLAIN and CALLAHAN, Circuit Judges, and EZRA, Senior
District Judge.***
The facts of this case are known to the parties. We need not repeat them
FILED
JAN 17 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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here. In March 2011, a jury convicted Angelica Rodriguez of conspiracy to
distribute and possess with intent to distribute methamphetamine and use of a
telephone to facilitate the commission of a conspiracy to distribute
methamphetamine. Rodriguez argues that the district court erred in denying her
motion to suppress wiretap evidence because the affidavit supporting the wiretap
application was deficient and failed to establish necessity. She also argues that the
district court erred in determining that misstatements in the affidavit were not made
with reckless disregard for the truth and were not material. We have jurisdiction
over this matter pursuant to 28 U.S.C. § 1291.
We employ a two-step review when a defendant asserts that the government
failed to satisfy the requirements of the federal wiretap statute. First, we review de
novo whether the government’s wiretap application included “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.” 18 U.S.C. § 2518(1)(c); United States v. Shryock, 342 F.3d 948, 975
(9th Cir. 2003). Second, we review for abuse of discretion the district court’s
finding that a wiretap was necessary. Shryock, 342 F.3d at 975.
We hold that the wiretap application, purged of the misstatements and
omissions, contained a full and complete statement of facts. The 84-page affidavit
provided an extensive summary of the investigation, detailed information about the

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target subjects, and a 14-page discussion of the inadequacy of traditional
investigative techniques. The latter section contained a discussion of the inefficacy
of traditional techniques in this case, not general claims applicable to all narcotics
investigations. See United States v. Blackmon, 273 F.3d 1204, 1210 (9th Cir.
2001) (“The purged application does not meet the full and complete statement
requirement of § 2518(1)(c) because it makes only general allegations that would
be true in most narcotics investigations.”).
We further hold that the issuing court did not abuse its discretion in
determining that the affidavit satisfied the necessity requirement. “When
reviewing necessity we employ a ‘common sense approach’ to evaluate the
reasonableness of the government’s good faith efforts to use traditional
investigative tactics or its decision to forego such tactics based on the unlikelihood
of their success or the probable risk of danger involved with their use.” United
States v. Gonzalez, Inc., 412 F.3d 1102, 1112 (9th Cir. 2005). The government’s
wiretap application detailed the traditional investigative techniques already
employed and listed specific goals the investigation had failed to accomplish
through traditional techniques, including identifying all co-conspirators,
establishing the role of each individual in the organization, and furnishing proof
beyond a reasonable doubt of criminal activity. We are also mindful of the
heightened need for electronic surveillance in the investigation of a drug

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trafficking conspiracy because of the unique nature of such an organization. See
United States v. Garcia-Villalba, 585 F.3d 1223, 1230 (9th Cir. 2009)
(“[T]raditional investigative techniques sometimes cannot end the threat that such
organizations pose to public safety. A wiretap, which targets communications, is
well-suited to unmasking the leaders of a narcotics-trafficking organization.”);
United States v. McGuire, 307 F.3d 1192, 1198 (9th Cir. 2002) (“[T]he
government is entitled to more leeway in its investigative methods when it pursues
a conspiracy.”).
Finally, the district court’s factual finding that Agent Carpluk’s
misstatements were not made recklessly or intentionally was not clear error. See
Shryock, 342 F.3d at 975. Furthermore, when the misstatements and omissions in
the affidavit are removed and corrected, the affidavit still demonstrates the
wiretap’s necessity. Thus, Agent Carpluk’s misstatements were not material to the
issuing court’s determination of necessity. See United States v. Ippolito, 774 F.2d
1482, 1485–87 (9th Cir. 1985).
AFFIRMED.

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