Cortez

MEMORANDUM **

Agapito Cortez appeals his conviction and 121-month sentence, following a jury trial, for one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm in part and vacate in part.

Cortez contends that the district court erred by denying his motion to suppress because the government failed to *523 demonstrate “necessity” for the wiretap. See 18 U.S.C. § 2518 (l)(c), (3)(c); United States v. Khan, 993 F.2d 1368, 1375 (9th Cir.1993). In an earlier appeal brought by one of his co-defendants, this court upheld the wiretap’s validity and the denial of the motion to suppress in United States v. Johnson, No. 98-50176, 1999 WL 274665 (9th Cir. Apr.23, 1999); the motion had been made in the district court by Cortez and joined by his co-defendant. The doctrine of law of the case therefore establishes that the district court did not err. See United States v. Schaff, 948 F.2d 501, 506 (9th Cir.1991) (concluding law of the case doctrine applies when one co-defendant’s appeal is decided before another co-defendant’s appeal, if both were convicted at the same trial); United…