                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 13 2012

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

UNITED STATES OF AMERICA,                        No. 11-10231

              Plaintiff - Appellee,              D.C. No. 4:08-cr-00083-PJH-13

  v.
                                                 MEMORANDUM*
PAUL KOZINA,

              Defendant - Appellant.


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

                      Argued and Submitted April 18, 2012
                           San Francisco, California

Before: REINHARDT, NOONAN, and MURGUIA, Circuit Judges.

       Paul Kozina was convicted following a jury trial of one count of possession

of methamphetamine with the intent to distribute in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(B)(viii), and 18 U.S.C. § 2, and one count of conspiracy to

possess methamphetamine in violation of 21 U.S.C. § 844(a). On appeal, Kozina

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
makes several challenges to the evidence admitted against him at trial. Because the

facts are known to the parties, we recount them here only as necessary to explain

our decision. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Kozina claims that the facts in the affidavit underlying the February 2008

search warrant were stale and did not establish probable cause. Before we consider

probable cause, “we may proceed directly to the issue of whether there was good

faith reliance.” United States v. Crews, 502 F.3d 1130, 1136 (9th Cir. 2007)

(citing United States v. Leon, 468 U.S. 897, 923-25 (1984)).

      The law enforcement officers who executed the search relied on the warrant

in good faith because of evidence that the drug dealing went on after the

surveillance period. The evidence created “a colorable argument that the search . .

. was supported by probable cause . . . . ” Crews, 502 F.3d at 1136; see also United

States v. Greany, 929 F.2d 523, 525 (9th Cir. 1991); United States v. Pitts, 6 F.3d

1366, 1369-70 (9th Cir. 1993).

      Kozina argues that the government sought, and obtained, roving wiretaps

without authorization by a high-level Justice Department official. We review de

novo the district court’s denial of a motion to suppress evidence obtained by

wiretap and review the district court’s factual findings for clear error. United

States v. Callum, 410 F.3d 571, 577 (9th Cir. 2005).


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      We affirm the district court’s ruling because the communications did not

require a roving wiretap. The wiretap in this case properly permitted the

interception of communications to and from an identified cell phone number,

which we have defined as a “communications facility.” Such a wiretap does not

require higher-level Justice Department authorization. See United States v. Duran,

189 F.3d 1071, 1086 (9th Cir. 1999).

      Kozina argues that the district court erred when it denied his motion to

suppress statements that he made while his wife Angelica Rodriguez was on the

phone with Zaragoza and after Rodriguez dialed the number, but before Zaragoza

answered it. We review the district court’s ruling de novo. Kozina’s statements

while Rodriguez was on the phone, were made without a reasonable expectation of

privacy. They were wire communications that fell within the ambit of the wiretap

order. However, statements made by Kozina after Rodriguez dialed Zaragoza but

before the phone was answered were oral communications not subject to the order.

It was error to admit them. See In the Matter of the Application of the U.S. for an

Order Authorizing the Roving Interception of Oral Communications, 349 F.3d

1132, 1137-38 (9th Cir. 2003). Reversal is not warranted, however, because this

error was harmless. See United States v. Brobst, 558 F.3d 982, 996 (9th Cir.

2009); United States v. Quintero, 38 F.3d 1317, 1331 (3d Cir. 1994).


                                          3
      Kozina appeals the district court’s denial of his motion to suppress

statements that Rodriguez made to Zaragoza on September 29, 2007. The district

court’s finding that Rodriguez’s statements to Zaragoza furthered the conspiracy

must be upheld unless clearly erroneous. United States v. Williams, 989 F.2d

1061, 1067 (9th Cir. 1993). The district court’s decision was not clearly erroneous,

since it was reasonable to infer that Rodriguez called Zaragoza in order to update

him on the status of the conspiracy and pave the way for further transactions.

      AFFIRMED.




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