                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 17 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



THE UNITED STATES OF AMERICA,                    No. 11-10442

              Plaintiff - Appellee,              D.C. No. 4:08-cr-00083-PJH-12

  v.
                                                 MEMORANDUM *
ANGELICA MARIA RODRIGUEZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                           Submitted December 7, 2012 **
                             San Francisco, California

Before: O’SCANNLAIN and CALLAHAN, Circuit Judges, and EZRA, Senior
District Judge.***



       The facts of this case are known to the parties. We need not repeat them

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable David A. Ezra, Senior U.S. District Judge for the
District of Hawaii, sitting by designation.
here. In March 2011, a jury convicted Angelica Rodriguez of conspiracy to

distribute and possess with intent to distribute methamphetamine and use of a

telephone to facilitate the commission of a conspiracy to distribute

methamphetamine. Rodriguez argues that the district court erred in denying her

motion to suppress wiretap evidence because the affidavit supporting the wiretap

application was deficient and failed to establish necessity. She also argues that the

district court erred in determining that misstatements in the affidavit were not made

with reckless disregard for the truth and were not material. We have jurisdiction

over this matter pursuant to 28 U.S.C. § 1291.

      We employ a two-step review when a defendant asserts that the government

failed to satisfy the requirements of the federal wiretap statute. First, we review de

novo whether the government’s wiretap application included “a full and complete

statement as to whether or not 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.” 18 U.S.C. § 2518(1)(c); United States v. Shryock, 342 F.3d 948, 975

(9th Cir. 2003). Second, we review for abuse of discretion the district court’s

finding that a wiretap was necessary. Shryock, 342 F.3d at 975.

      We hold that the wiretap application, purged of the misstatements and

omissions, contained a full and complete statement of facts. The 84-page affidavit

provided an extensive summary of the investigation, detailed information about the
target subjects, and a 14-page discussion of the inadequacy of traditional

investigative techniques. The latter section contained a discussion of the inefficacy

of traditional techniques in this case, not general claims applicable to all narcotics

investigations. See United States v. Blackmon, 273 F.3d 1204, 1210 (9th Cir.

2001) (“The purged application does not meet the full and complete statement

requirement of § 2518(1)(c) because it makes only general allegations that would

be true in most narcotics investigations.”).

      We further hold that the issuing court did not abuse its discretion in

determining that the affidavit satisfied the necessity requirement. “When

reviewing necessity we employ a ‘common sense approach’ to evaluate the

reasonableness of the government’s good faith efforts to use traditional

investigative tactics or its decision to forego such tactics based on the unlikelihood

of their success or the probable risk of danger involved with their use.” United

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

wiretap application detailed the traditional investigative techniques already

employed and listed specific goals the investigation had failed to accomplish

through traditional techniques, including identifying all co-conspirators,

establishing the role of each individual in the organization, and furnishing proof

beyond a reasonable doubt of criminal activity. We are also mindful of the

heightened need for electronic surveillance in the investigation of a drug
trafficking conspiracy because of the unique nature of such an organization. See

United States v. Garcia-Villalba, 585 F.3d 1223, 1230 (9th Cir. 2009)

(“[T]raditional investigative techniques sometimes cannot end the threat that such

organizations pose to public safety. A wiretap, which targets communications, is

well-suited to unmasking the leaders of a narcotics-trafficking organization.”);

United States v. McGuire, 307 F.3d 1192, 1198 (9th Cir. 2002) (“[T]he

government is entitled to more leeway in its investigative methods when it pursues

a conspiracy.”).

      Finally, the district court’s factual finding that Agent Carpluk’s

misstatements were not made recklessly or intentionally was not clear error. See

Shryock, 342 F.3d at 975. Furthermore, when the misstatements and omissions in

the affidavit are removed and corrected, the affidavit still demonstrates the

wiretap’s necessity. Thus, Agent Carpluk’s misstatements were not material to the

issuing court’s determination of necessity. See United States v. Ippolito, 774 F.2d

1482, 1485–87 (9th Cir. 1985).


      AFFIRMED.
