United States v. Charles Cheatham ( 2021 )

FILED
NOT FOR PUBLICATION SEP 3 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30294
Plaintiff-Appellee, D.C. No. 2:18-cr-00131-RAJ-1
v.
MEMORANDUM*
CHARLES ROLAND CHEATHAM,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted August 13, 2021
Seattle, Washington
Before: EBEL**, BEA, and VANDYKE, Circuit Judges.
In this direct criminal appeal, Defendant-Appellant Charles Cheatham
challenges his convictions for 1) conspiring to distribute controlled substances,
2) carrying a firearm during and in relation to a drug-trafficking crime, and
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of
**
Appeals for the Tenth Circuit, sitting by designation.
3) conspiring to commit money laundering. Cheatham challenges the district
court’s decision to deny his motions to suppress and raises three grounds for relief:
First, that there was inadequate probable cause underlying a tracking warrant for
two of his phones; second, that there was inadequate probable cause underlying a
wiretap for one of his phones; and third, that the wiretap’s “necessity” requirement
was not met. (E.R. 50, 128–34). On all issues, we affirm.1
1. We review de novo the district court’s rulings as to whether probable
cause was proven, see United States v. Dixon, 984 F.3d 814, 818 (9th Cir. 2020),
but review the magistrate judge’s finding of probable cause for “clear error,” see
United States v. Tan Duc Nguyen, 673 F.3d 1259, 1263 (9th Cir. 2012). We agree
with the district court that the magistrate judge issuing the tracking warrant for
Cheatham’s cell phones, Target Telephones (“TT”) 14 and 15, did not clearly err in
determining that there was probable cause —a “fair probability” based on the
totality of the circumstances—to believe tracking Cheatham’s phones would result
in the discovery of evidence of a crime. United States v. Elmore, 917 F.3d 1068,
1074 (9th Cir. 2019) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
Specifically, while tapping the cell phone of Michael Morgan, the already
identified leader of a drug-trafficking organization (“Morgan DTO”), police
intercepted a call between Morgan and Cheatham. Although vague and brief, that
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We GRANT the Government’s unopposed motion to take judicial notice.
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intercepted conversation was sufficient to provide the necessary probable cause,
when considered in the context of several other intercepted phone calls that
Morgan made during that same time period. Furthermore, the sworn affidavit from
a drug task force officer (“TFO”), based on his training and experience, explained
that during those calls Morgan was seeking to collect drug sale proceeds.
2. The magistrate judge also did not clearly err in determining that there was
probable cause to believe that a wiretap on Cheatham’s TT15 would result in the
discovery of evidence that he was committing, had committed, or was about to
commit a drug-trafficking crime. See 18 U.S.C. §§ 2516(1)(e), 2518(3)(a). The
TFO’s sworn affidavit submitted in support of the application for the wiretap order
included information that linked Cheatham to drug-trafficking generally, as well as
information specifically linking him to the Morgan DTO.
3. On the necessity issue, we review de novo whether the government
provided a full and complete affidavit as required under 18 U.S.C. § 2518(1)(c),
see United States v. Christie, 825 F.3d 1048, 1066 (9th Cir. 2016), but review for
abuse of discretion whether the district court properly determined that the wiretap
was necessary, see United States v. Barragan, 871 F.3d 689, 700 (9th Cir. 2017).
The TFO’s affidavit submitted in support of the wiretap on Cheatham’s TT15
adequately established the necessity for that wiretap, as 18 U.S.C. § 2518(1)(c)
requires. The affidavit both sufficiently detailed the other investigative techniques
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law enforcement had already employed to investigate Cheatham and the Morgan
DTO, to which Cheatham was linked, and sufficiently explained why those
investigative techniques were ineffective, unlikely to succeed, or too dangerous to
accomplish the investigation’s objectives. See United States v. Estrada, 904 F.3d
854, 862–65 (9th Cir. 2018). Based on the information in the affidavit, the district
court did not abuse its discretion in determining, under 18 U.S.C. § 2518(3)(c), that
the wiretap was necessary.
AFFIRMED.
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