United States v. Mayel Perez-Valencia

Mayel Perez-Valencia appeals his conviction following a conditional plea of guilty to conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we remand for the limited purpose of full development of the factual record with respect to the authority of Assistant District Attorney Dennis Christy (“ADA Christy”) as the person who applied for the state wiretap at issue, and for a second issue should it become ripe.

I

Perez-Valencia entered his plea after the district court denied his motion to suppress evidence obtained as a result of a wiretap authorized by the San Bernardino County Superior Court on March 30, 2010. The application was filed by ADA Christy, who was purportedly “designated” pursuant to California Penal Code § 629.50(a) by the county district attorney to apply for the wiretap in the district attorney’s absence. Perez-Valencia argues that the wiretap application was invalid because 18 U.S.C. § 2516 (2) allows only “the principal prosecuting attorney” of a political subdivision — here, the official district attorney of San Bernardino County — to apply to a state court for a…