United States v. Rodney Blackmon, AKA Seal A

273 F.3d 1204 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. RODNEY BLACKMON, AKA SEAL A, DEFENDANT-APPELLANT No. 99-50534 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 12, 2000 Filed December 12, 2001 Richard M. Steingard; Los Angeles, California, for defendant-appellant Rodney Blackmon. Michael Terrell, Assistant United States Attorney; Los Angeles, California, for plaintiff-appellee United States of America. Appeal from the United States District Court for the Central District of California William J. Rea, District Judge, Presiding D.C. No. CR-98-00536-WJR-1 Before: B. Fletcher, Thomas, and Wardlaw, Circuit Judges. 1 Opinion by Judge Betty B. Fletcher: Dissent by Judge Wardlaw. Betty B. Fletcher, Circuit Judge 2 Defendant-appellant Blackmon was convicted of controlled substance-related offenses and sentenced to a 262-month term following a stipulated facts bench trial before the district court. Blackmon appeals his conviction and sentence and argues that the district court erred by (1) denying his motion to suppress wiretap evidence because the government's application for the wiretaps failed to make the statutorily required…

Opinion by Judge Betty B. FLETCHER: Dissent by Judge WARDLAW

Defendant-appellant Blackmon was convicted of controlled substance-related offenses and sentenced to a 262-month term following a stipulated facts bench trial before the district court. Blackmon appeals his conviction and sentence and argues that the district court erred by (1) denying his motion to suppress wiretap evidence because the government’s application for the wiretaps failed to make the statutorily required showing of necessity, or, in the alternative, (2) erred in denying a Franks evidentiary hearing. In addition, Black-mon argues that the district court abused its discretion in assessing a two-level aggravating role enhancement. We hold that the wiretap evidence should be suppressed because the wiretap application contained material misstatements and omissions, and because the application does not otherwise make a particularized showing of necessity.

BACKGROUND

The indictment against Blackmon followed an FBI narcotics investigation that utilized many wiretaps and investigated a number of suspects. An initial wiretap was authorized on April 29, 1997 on a phone primarily used by Maurice Miller (hereinafter…

dissenting:

I respectfully dissent. The majority’s erroneous conclusion is predicated on its application of the de novo standard of review. This standard of review is dictated, the majority asserts, because the affidavit did not set forth a. “full and complete statement as to whether or not other investigative procedures have been tried and failed,” would not be likely to succeed, or are too dangerous. See 18 U.S.C. § 2518 (1)(c). Yet each statement characterized by the majority as “untrue” is in fact neither false nor misleading. Both statements are well supported by the Blackmon application itself, as well as the remainder of the record. Moreover, the majority fails to identify any information regarding these statements that was actually withheld from the issuing court. Nearly every fact the majority cites as contradicting the Blackmon application was actually included in that application. Therefore, I conclude that the correct standard of review is for abuse of discretion, United States v. Bennett, 219 F.3d 1117, 1121 (9th Cir.2000) (‘We review for abuse of discretion an issuing judge’s decision that a wiretap was necessary.”), and would hold that the issuing court (District…