United States v. Rafael Romero-Duarte , 473 F. App'x 582 ( 2012 )

FILED
NOT FOR PUBLICATION MAY 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30379
Plaintiff - Appellee, D.C. No. 3:09-cr-00119-BR-1
v.
MEMORANDUM *
RAFAEL ROMERO-DUARTE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted May 8, 2012
Portland, Oregon
Before: TASHIMA, TALLMAN, and IKUTA, Circuit Judges.
Rafael Romero-Duarte was convicted of a conspiracy count and three
substantive counts of distribution of or possession with intent to distribute
methamphetamine. He argues that the affidavit supporting the TT1 wiretap
application failed to establish necessity and that the district court erred in its factual
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
determination of relevant drug quantity. We have jurisdiction over this matter
pursuant to 28 U.S.C. § 1291. The facts of this case are known to the parties. We
need not repeat them here.
We employ a two-step review when a defendant challenges the necessity of
a wiretap. First, we review de novo compliance with the wiretap statute and ask
whether the affidavit contained “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. Gonzalez, Inc., 412 F.3d 1102, 1111–12 (9th Cir.
2005). Second, we review for abuse of discretion the issuing court’s decision to
grant the wiretap based on necessity. Gonzalez, Inc., 412 F.3d at 1111–12.
We hold the affidavit was sufficient and that the issuing court properly
authorized the wiretap. In his 77-page affidavit, DEA Special Agent (SA) Macrina
recounted the efforts of the 16-month investigation and identified its goal of
dismantling the entire international drug trafficking organization (DTO), including
its source of supply and all of its co-conspirators. SA Macrina outlined in
exhaustive detail which investigative techniques had been used and why they were
ultimately of limited utility, and those which had not and why they would be
fruitless or dangerous. The investigation’s thorough use of electronic pen registers
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and trap and trace devices prior to the wiretap application is a strong indicator of
necessity. See United States v. Garcia-Villalba, 585 F.3d 1223, 1228 (9th Cir.
2009). We are also mindful of the additional leeway granted the government in
conspiracy investigations, recognizing that conspiracies must be eliminated root
and branch to put an end to their criminal activity. See United States v. McGuire,
307 F.3d 1192, 1197–98 (9th Cir. 2002).
Romero-Duarte finds fault with the investigation’s use of informants, but is
unable to explain how further use of them could produce evidence of guilt beyond
a reasonable doubt sufficient to bring down the entire conspiracy and all of its
members, including its source of supply. See Garcia-Villalba, 585 F.3d at 1228;
see also McGuire, 307 F.3d at 1197–98. In addition, even if a technique achieves
some limited success, a wiretap may still be necessary. United States v. Bennett,
219 F.3d 1117, 1122 (9th Cir. 2000). SA Macrina persuasively demonstrated in
the affidavit that investigators could never have extirpated this DTO without the
assistance of a wiretap.
Finally, the district court did not err in adopting the presentence report and
its approximation of relevant drug quantity. Because Romero-Duarte failed to
make a specific objection to computation of the base offense level, we review the
approximation for plain error. United States v. Santiago, 466 F.3d 801, 803 (9th
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Cir. 2006). There was none. All of the figures were adequately supported by the
record.
AFFIRMED.
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