                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 30 2009

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




                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 08-50226

             Plaintiff - Appellee,               D.C. No. 2:04-cr-00732-RSWL-1

  v.

RAY MAXWELL, Max,

             Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                    Ronald S.W. Lew, District Judge, Presiding

                     Argued and Submitted December 11, 2009
                               Pasadena, California

Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.

       Ray Maxwell appeals the district court’s denial of his motion to suppress

evidence from the March 31, 2004, wiretap order. Maxwell subsequently pled

guilty to violations of 18 U.S.C. §§ 370 (conspiracy), 2113(a), (d) (attempted and

armed bank robbery), and 924(c) (discharge of a firearm during and in relation to a

crime of violence). Maxwell contends that the wiretap application is facially


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
insufficient, that the wiretap application failed to demonstrate necessity, and that

the district court abused its discretion in finding that the wiretap application

demonstrated necessity. We have jurisdiction under 28 U.S.C. § 1291 and we

affirm.

      The wiretap application is facially sufficient, despite erroneously naming

Special Agent Trott as the affiant in the application, because 18 U.S.C. § 2518 does

not require that the application list the affiant’s name. Moreover, the application

was properly submitted by Assistant United States Attorney Garth Hire, an

“attorney authorized by law to prosecute or participate in the prosecution of such

offenses” under 18 U.S.C. § 2510(7), and was accompanied by an affidavit that

showed the correct name of the affiant, Special Agent Stephen May. The clerical

error with respect to the affiant’s name in the application does not require

suppression of the wiretap evidence. See United States v. Staffeldt, 451 F.3d 578,

582 (9th Cir. 2006), modified, 523 F.3d 983 (9th Cir. 2008).

      The wiretap application provides facts sufficient to demonstrate necessity

because Special Agent May’s affidavit supplies specific and sufficient reasons that

relate to the known behavior of the Rollin’ 30s Crips, and explains what

investigative methods had already been tried, and why other investigative methods

would not reasonably be likely to succeed or would endanger the community, the


                                           2
police, or a confidential witness. See id. For the same reasons, the district court

did not abuse its discretion in finding that the wiretap application demonstrated

necessity. United States v. McGuire, 307 F.3d 1192, 1197 (9th Cir. 2002).

      AFFIRMED.




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