Appeals from the United States District Court for the Southern District of Indiana, Evansville Division. No. 00-CR-25--Richard L. Young, Judge.
Before Bauer, Ripple, and Kanne, Circuit Judges.
The opinion of the court was delivered by: Kanne, Circuit Judge
This is a consolidated appeal of the convictions and sentences of six co-defendants who were tried by a jury and found guilty of drug conspiracy and money laundering pursuant to 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. §§ 1956(a)(1)(A)(i) and (h). The government also cross-appeals the sentences of two of the defendants, Alfredo Ceballos and Alan Martinez-Guzman. We affirm all of the defendants' convictions and sentences, except for Ceballos's and Martinez-Guzman's sentences, which we vacate and remand for re-sentencing.
In November 1999, DEA agents in southern Indiana began using an informant to make controlled sales of methamphetamine to an individual nicknamed "Cuate." The DEA monitored several purchases made by Cuate and eventually initiated surveillance on narcotics transactions perpetrated by other individuals, including defendants Martinez-Guzman and Lalo-Mendoza. As the monitored drug transactions in southern Indiana continued, DEA agents began utilizing wiretaps to record conversations between the informant and Cuate. Surveillance of these wiretaps led to an expanded investigation, implicating several more people.
On March 31, 2000, DEA agents in Evansville, Indiana received court authorization to intercept communications over two telephones and one pager belonging to Juan Manuel Mata and Lisa Caudill (the "Indiana wiretaps"). Based on numerous drug-related conversations intercepted by the Indiana wiretaps, the DEA seized one pound of methamphetamine. Subsequently, DEA agents in Dallas, Texas received court authorization to intercept communications over two telephones identified during surveillance of the Indiana wiretaps (the "Texas wiretaps"). The target telephone numbers of the Texas wiretaps belonged to defendants Miguel and Deneise Quintanilla, and during surveillance of these wiretaps, DEA agents intercepted many more drug-related conversations. Based upon evidence of drug-related conversations obtained from the Indiana and Texas wiretaps, the seizure of the methamphetamine, and the testimony of several cooperating witnesses, the government indicted sixteen people on drug conspiracy and money laundering charges. The six defendants proceeded to trial and were convicted as charged in the indictment. The district court then sentenced the defendants as follows:
Defendant Charge Sentence
Alfredo Ceballos Drug Conspiracy Money Laundering 360 months 240 months, concurrent
Alan Martinez-Guzman Drug Conspiracy 268 months
Miguel Angel Quintanilla Drug Conspiracy Money Laundering Life 240 months, concurrent
Leonel Moreno, Jr. Drug Conspiracy Money Laundering 360 months 240 months, concurrent
Deneise Ann Quintanilla Drug Conspiracy Life
Abelardo Lalo-Mendoza Drug Conspiracy 204 months
The defendants' first argument on appeal is that the district court erred in denying their motion to suppress evidence obtained from surveillance of the Indiana and Texas wiretaps. We will reverse a district court's decision to admit evidence obtained from wiretaps only if that decision was an abuse of discretion. See United States v. Adams, 125 F.3d 586, 595 (7th Cir. 1997).
The defendants first argue that the district court erred in denying their motion to suppress because, according to the defendants, the government failed to establish the necessity for wire surveillance. Federal law requires each wiretap application to contain a full and complete statement as to one of the following: (1) whether or not other investigative procedures have been tried and failed, (2) why other investigative procedures reasonably appear to be unlikely to suc ceed if tried, or (3) that other investigative procedures are too dangerous. See 18 U.S.C. § 2518(1)(c). We have previously held that "the government's burden of establishing its compliance with subsection 2518(1)(c) is not great" and should "be reviewed in a practical and commonsense fashion." United States v. Zambrana, 841 F.2d 1320, 1329 (7th Cir. 1988). In Zambrana, we held that the government established the necessity for wire surveillance where its wiretap application averred that normal investigative procedures would not succeed in identifying all co-conspirators at all levels of the drug conspiracy. See id. at 1330-32. In so doing, we noted that the government had offered a valid factual basis for this assertion: informants and undercover agents could not infiltrate the drug conspiracy to the extent necessary for a successful prosecution. See id. at 1331-32. In Adams, we held that the government had established the requisite necessity where its wiretap application stated, among other things, that physical surveillance might alert the subject to the investigation. See 125 F.3d at 595-96.
In this case, the government's application for the Indiana wiretaps stated that it had tried ordinary investigative procedures such as the use of informants and undercover agents, the use of telephone records and pen registers, and the use of physical surveillance, but that those procedures had been insufficient to obtain the evidence necessary to establish the full extent of the drug conspiracy and would continue to be insufficient in the future. In addition, DEA Special Agent Daniel Schmidt's affidavit provided factual bases for this assertion. For example, it stated that informants and undercover agents had been and would continue to be unable to establish contact with middle to upper-level members of the conspiracy and thus their use could not "furnish information which would fully identify all members of this ongoing criminal conspiracy or which would define the roles of these conspirators sufficiently for prosecution." Specifically, these confidential and undercover sources could not establish how the narcotics were being shipped to Indiana. In addition, the application stated that the use of telephone records and pen registers could not identify the participants in the telephone conversations or the nature or substance of those conversations. Moreover, the application stated that in Special Agent Schmidt's experience, physical surveillance would likely alert the subjects to the investigation. The application for the Texas wiretaps included all of the above information and was supported by an affidavit from DEA Special Agent C. Mark Styron. In addition, the Texas application stated that additional wiretaps were needed in Texas to identify some of the people discussed during conversations intercepted by the Indiana wiretaps, including people that may have supplied Miguel Quintanilla with narcotics in Texas.
As the above facts illustrate, the Indiana and Texas applications provided the requisite "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 . . . ." 18 U.S.C. § 2518(1)(c). Specifically, the applications outlined numerous factual bases for the government's claim that the wiretaps were necessary to establish the full extent of the drug conspiracy. For example, as in Zambrana, the applications explained that informants and undercover agents had been and would continue to be unable to infiltrate the conspiracy. Further, the applications explained that telephone records and pen registers could not identify each subject's role in the conspiracy because they could not reveal the participants in nor the substance of the conversations. Finally, as in Adams, the applications explained that physical surveillance would likely alert the subjects to the investigation. Therefore, we hold that the district court did not abuse its discretion in admitting evidence obtained from the wiretaps.
The defendants next contend that the applications for the Indiana and Texas wiretaps contained bad-faith misrepresentations and therefore the district court erred in denying their motion to suppress. Each application to obtain a wiretap must inform the issuing court of all previous applications for interception of wire, oral, or electronic communi cations involving any of the same persons specified in the pending application. See 18 U.S.C. § 2518(1)(e). However, a violation of the wiretap statute is not grounds for suppression unless the defendant can establish bad faith or preju dice. See United States v. Matthews, 213 F.3d 966, 969-70 (7th Cir. 2000). In United States v. Zannino, 895 F.2d 1, 8-9 (1st Cir. 1990), the defendant argued that his motion to suppress should have been granted because the government's application failed to disclose that the defendant had been the target of five previous wiretap applications. The agents making the application testified at the suppression hearing that they had conducted a thorough search of FBI files to determine whether the defendant had been the target of previous wiretap applications but that the search had come up empty. See id. The district court credited this testimony, and the First Circuit held that this determination was not clear error. See id. at 9 ("[A]n investigator cannot be expected to disclose something that he or she does not know."). Therefore, because there was no bad faith, the omission of the prior applications did not warrant suppression, even if the agents were negligent in their search. See id.; see also United States v. Lujan, 936 F.2d 406, 409 (9th Cir. 1991); United States v. Pinelli, 890 F.2d 1461, 1475 (10th Cir. 1989).
In the present case, the Indiana and Texas applications failed to disclose that Miguel and Deneise Quintanilla had been the targets of previous wiretap applications in Texas. However, the government agents applying for the wiretaps testified at the suppression hearing that they made three separate searches of the DEA and FBI databases and that each search failed to disclose the prior applications. In addition, Agent Styron testified that subsequent to the Texas application, he performed another search of the DEA and FBI databases and discovered that the prior applications concerning Miguel and Deneise Quintanilla had been under the names "Miquel Quintanilla" and "Deneise Scrimshire" (her maiden name). Upon learning this information, the government filed a motion with the authorizing court in Texas to amend its application for the Texas wiretap, which the court granted. The defendants offered nothing to contradict this evidence showing that the omission was inad vertent other than their conjecture that the agents must have known about the prior applications, and conjecture is insufficient to warrant relief. See United States v. Westmoreland, 240 F.3d 618, 637 (7th Cir. 2001). After hearing all of this evidence, the district court found that the government did not act in bad faith and therefore denied the defendants' motion to suppress. As in Zannino, the agents testified that they had performed searches to determine whether there had been prior applications and that these searches had come up empty. Therefore, we find that the district court did not err in denying the motion to suppress.
Finally, the defendants argue that the government did not obtain the proper approval for authorization of the Texas wiretap. Federal law provides that "any Deputy Assistant Attorney General . . . specifically designated by the Attorney General may authorize an application to a Federal judge of competent jurisdiction for . . . an order authorizing or approving the interception of wire or oral communications . . . ." 18 U.S.C. § 2516(1). Further, in Order 1950-95, dated February 13, 1995, then Attorney General Janet Reno "specifically designate[d] . . . any acting Deputy Assistant Attorney General . . . to exercise the power conferred by section 2516(1) . . . ." The Texas application contained authorization from Mary Lee Warren, Deputy Assistant Attorney General. The defendants apparently concede that Mary Lee Warren signed the authorization, but argue that "[t]he record is silent regarding who she is and what authority she might possess." The ...