Dorsey

concurring in part and dissenting in part.

I concur in the majority’s disposition of the issues involving Dorsey and Machado’s sentences, the Electronic Serial Number, and the lack of an interpreter at Machado’s sentencing hearing. I disagree with the majority, however, on whether the wiretap evidence should have been suppressed.

If a wiretap application is incomplete or contains incorrect information, “the reviewing court must determine the true facts and rely on the credible evidence produced at the suppression hearing to determine whether a reasonable district court judge could have denied the application because necessity for the wiretap had not been shown.” United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir.1988) (citations and quotation marks omitted). The present case involves omissions and misstatements in the affidavit supporting the wiretap application, and the suppression hearing testimony by DEA Special Agent Wiles at times strains credulity. This disturbing conduct seems to erase the district court’s role as an independent check on the use of electronic surveillance by law enforcement.

The key inquiry for this court is whether a reasonable district court judge…

MEMORANDUM *

Gerald Fitzgerald Hunter appeals his conviction for conspiracy with intent to *713 distribute cocaine. 21 U.S.C. §§ 846 , 841(a)(1). Victor Machado appeals both his conviction and his sentence arising out of the same conspiracy. Charles Erik Dorsey appeals his sentence only. We affirm.

(1) Hunter and Machado both assert that evidence obtained from a wiretap of a certain telephone should have been suppressed because the affidavit in support of it omitted information and was insufficient. We disagree. While the affidavit may not have been perfect, after carefully hearing and considering the evidence, the district court found that the drug enforcement agent’s explanation as to a major piece of allegedly omitted information was credible and that false representations were not made about it. The district court did not find to the contrary as to any other information. Also, it determined that any omissions were not material to the issues of the wiretap order, and that if any of that immaterial, omitted information had been brought to the attention of the issuing judge, it would have made no difference (in other words, it could not have affected his decision). See United…