                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 23 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30361

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00062-RSL-28

  v.
                                                 MEMORANDUM*
RICHARD ANTHONY ORTIZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert S. Lasnik, District Judge, Presiding

                     Argued and Submitted December 11, 2014
                               Seattle, Washington

Before: McKEOWN, TALLMAN, and OWENS, Circuit Judges.

       Richard Anthony Ortiz challenges the district court’s admission of wiretap

calls at trial, arguing that the government did not meet the “necessity” element

required by 18 U.S.C. § 2518 for Target Telephone No. 8 (“TT8”). Ortiz also

challenges the admission of Marisela Fuentes’s statements to Ortiz during two



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
prison calls, alleging there was insufficient independent evidence that Fuentes was

an unindicted member of the conspiracy.1

      The government’s affidavit provided a “full and complete statement,” and

the district court did not abuse its discretion in finding that the wiretap application

met the statutory requirement of necessity. 18 U.S.C. § 2518(1)(c), (3)(c); see also

United States v. Canales Gomez, 358 F.3d 1221, 1224 (9th Cir. 2004). Section

2518(1)(c) requires that any application for a judicial order authorizing a wiretap

include “a full and complete statement”2 indicating that “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.” See also 18 U.S.C. § 2518(3)(c).

      Here, Special Agent Nathan Clammer’s 73-page affidavit details an

extensive use of traditional investigative procedures, which were met with limited

success. As part of a seven month inter-agency investigation into the Berrelleza

Drug Trafficking Organization (“DTO”), federal agents performed extensive


      1
         Ortiz’s appeal of the district court’s admission of opinion testimony that
identified Ortiz’s voice for the jury as the Spanish speaker in intercepted calls is
disposed of in a published opinion filed contemporaneously with this
memorandum disposition.
      2
        Ortiz did not appeal the denial of his motion for a Franks hearing to
determine whether the wiretap application for TT8 contained material
misrepresentations or omissions. See United States v. Shryock, 342 F.3d 948, 977
(9th Cir. 2003).

                                           -2-
physical and video surveillance, developed a limited number of confidential

sources, issued subpoenas for financial records, deployed undercover agents, and

obtained permission to use pen registers and vehicle tracking devices. On this

basis—demonstrating that extensive normal investigative procedures had been

tried and failed—the government met the statutory necessity requirement. United

States v. Gonzalez, Inc., 412 F.3d 1102, 1112 (9th Cir. 2005).

      Finally, the district court did not abuse its discretion in admitting the two

prison calls between Ortiz and Fuentes under the co-conspirator hearsay exception.

The court was not clearly erroneous when it found that a conspiracy existed,

Fuentes was an unindicted co-conspirator, and statements were made in

furtherance of that conspiracy. Fed. R. Evid. 801(d)(2)(E); United States v. Moran,

493 F.3d 1002, 1010 (9th Cir. 2007). Ample evidence supports its factual findings,

including prison calls indicating Ortiz would rejoin the DTO once he was released

from custody, testimony from agents establishing that Fuentes likely laundered

money for the DTO, and a prior wiretap application listing Fuentes as a target

subject of the investigation. The court and jury also knew she was DTO leader

Ivan Berrelleza-Verduzco’s live-in girlfriend, present during the takedown at their

residence, and on that occasion questioned by police.

      AFFIRMED.


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