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United States v. Vargas

May 30, 1997

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

DAVID VARGAS,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Wisconsin.

No. 95 CR 91 John C. Shabaz, Chief Judge.

Before POSNER, Chief Judge, and HARLINGTON WOOD, JR. and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

ARGUED APRIL 3, 1997

DECIDED MAY 30, 1997

David Vargas pleaded guilty to conspiracy to possess with the intent to deliver cocaine under 21 U.S.C. sec. 846. He now appeals a suppression ruling that he had reserved at the time of his plea and his sentence. For the reasons given in this opinion, we affirm the judgment of the district court.

I. BACKGROUND

A detailed recitation of the factual background is unnecessary to a resolution of the issues brought by Mr. Vargas on appeal.

Based on information obtained from confidential informants, surveillance and wiretaps, the government stopped Mr. Vargas on the highway and arrested him for his role in a drug conspiracy. Later a firearm was found behind a heating vent in his car. Mr. Vargas' main coconspirators were Jeffrey Pickett, Michael Keltner and Gregory Kole. Mr. Vargas arranged for the distribution of drugs from the main supplier to Pickett and Keltner by setting up dates and times for pick-up. Kole assisted Mr. Vargas in transporting the drugs.

II. DISCUSSION

A. The Wiretap

Mr. Vargas contends that the government lacked the requisite probable cause to tap the telephone of his confederate Pickett and that the subsequent tapping of his own phone similarly lacked probable cause. He also contends that neither of these wiretaps was "necessary," as required by 18 U.S.C. sec. 2518. Finally, he contends that the wording of the wiretap order allowed for interception for only 10 days, not for 30.

We agree with the government that whether the necessary probable cause existed is an issue that we must review de novo. See Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996).

At the outset, we note that Mr. Vargas has only limited standing to object to lack of probable cause to tap Pickett's phone. "The interception of calls to which he was not a party did not intrude upon [Mr. Vargas'] fourth amendment rights, . . . so he has no standing to seek suppression of evidence gathered from those intercepts." United States v. Thompson, 944 F.2d 1331, 1339 (7th Cir. 1991), cert. denied, 502 U.S. 1097 (1992). *fn1 In any event, the affidavit submitted in support of the wiretap establishes probable cause to tap Pickett's phone. An informant had told an FBI agent that the informant regularly purchased cocaine from Pickett since early 1994. Either Pickett or Keltner would deliver the cocaine to the informant. During one delivery, Keltner was driving a car registered to Mr. Vargas and returned to Mr. Vargas' residence after the delivery. Pickett and Keltner told the informant that the cocaine came from the Wisconsin Dells area, where Mr. Vargas lived. From April 7 to October 17, 1994, 115 phone calls had been made from Pickett to ...


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