     Case: 17-30537      Document: 00514732782         Page: 1    Date Filed: 11/21/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-30537                    United States Court of Appeals

                                  Summary Calendar
                                                                             Fifth Circuit

                                                                           FILED
                                                                   November 21, 2018

UNITED STATES OF AMERICA,                                             Lyle W. Cayce
                                                                           Clerk
                                                 Plaintiff-Appellee

v.

WILBERT MATHES,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                      for the Middle District of Louisiana
                             USDC No. 3:14-CR-69-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Wilbert Mathes appeals his conviction for conspiracy to distribute and
possess with intent to distribute 500 grams or more of cocaine, distribution of
cocaine, possession with intent to distribute 500 grams or more of cocaine, and
unlawful use of a communications facility. He argues that the district court
abused its discretion when it denied his motion in limine and admitted
testimony regarding pole camera footage. Mathes contends that the testimony


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-30537

should have been barred under Federal Rule of Evidence 1002, the best
evidence rule. The district court did not abuse its discretion by admitting this
testimony because the testimony was based on personal knowledge.
See United States v. El-Mezain, 664 F.3d 467, 494 (5th Cir. 2011); In re Mobilift
Equip. of Fla., Inc., 415 F.2d 841, 844 (5th Cir. 1969). Moreover, the testimony
was admissible under Federal Rule of Evidence 1004 because the original
footage was lost due to a catastrophic data loss on the server.
      Mathes also argues that the district court erred in denying his motion to
suppress because the affidavits supporting the wiretap applications failed to
describe any specific information that he was engaged in drug dealing and the
affidavits contained general allegations and boilerplate conclusions.
      An application seeking authorization for a wiretap must state “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).   To issue the order approving interception of wire
communications, a judge must find that the Government has made the
required showing of necessity. § 2518(3)(c). This court reviews the district
court’s issuance of a wiretap order for clear error. United States v. Kelley, 140
F.3d 596, 604 (5th Cir. 1998).      This court reviews de novo whether the
Government satisfied the “necessity requirement.” United States v. Smith, 273
F.3d 629, 632 (5th Cir. 2001); United States v. Butler, 477 F. App’x 217, 219
(5th Cir. 2012).
      In the instant case, the affidavits provided facts reflecting the failure of
traditional investigative techniques, such as surveillance and the use of
confidential informants. Additionally, the affidavits included explanations of
why other investigative actions, such as mobile tracking devices, trash
searches, and the use of the federal grand jury, would likely not succeed.



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                               No. 17-30537

Therefore, the affidavits satisfied the requirements of § 2518(3)(c).     The
judgment of the district court is AFFIRMED.




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