                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 31 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-50248

              Plaintiff-Appellee,                D.C. No.
                                                 3:11-cr-04153-WQH-10
 v.

ROBERT COTA, Jr.,                                MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                        Argued and Submitted May 11, 2017
                               Pasadena, California

Before: PREGERSON and FRIEDLAND, Circuit Judges, and DONATO,**
District Judge.

      Robert Cota, Jr. appeals from his conviction and sentence of 240 months in

prison after a jury trial on a charge of conspiracy to distribute methamphetamine,

in violation of 21 U.S.C. §§ 841(a)(1) and 846. Cota makes several challenges to

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
the district court’s denial of his pre-trial motion to suppress wiretap evidence. As

the parties are familiar with the facts, we do not recount them here. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

1.    We reject Cota’s argument that the wiretap affidavits did not contain a “full

and complete statement” of facts, as required by 18 U.S.C. § 2518(1)(c), because

they included boilerplate language and lacked particularity. In reviewing a district

court’s decision on a motion to suppress wiretap evidence, we review de novo

whether the warrant affidavit contained “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); see United States v. Christie, 825 F.3d 1048, 1066 (9th

Cir. 2016). The warrant affidavit “must contain more than ‘boilerplate conclusions

that merely describe inherent limitations of normal investigative procedures.’”

Christie, 825 F.3d at 1068 (quoting United States v. Blackmon, 273 F.3d 1204,

1210 (9th Cir. 2001)). However, some boilerplate language is not fatal, as we

evaluate “the level of detail in the affidavit as a whole, rather than piecemeal.”

United States v. Rodriguez, 851 F.3d 931, 942 (9th Cir. 2017) (internal quotation

marks omitted) (quoting Christie, 825 F.3d at 1068).




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      Although the affidavits in this case do contain some impermissible

boilerplate language and generalities about the limitations of traditional

investigative techniques, there was sufficient detail in the affidavits as a whole.

See id. at 942-43. The affidavits discuss more than ten categories of traditional

investigative techniques that had been tried and failed or reasonably appeared

unlikely to achieve the goals of the investigation. The affidavits include specific

examples of how traditional techniques could only take law enforcement agents so

far, especially when it came to identifying conspirators and understanding the

narcotics distribution network. “In light of the many assertions that are supported

by specific probative facts, the few conclusory statements . . . do not render the

affidavit[s]—read in [their] entirety in a practical and commonsense

fashion—invalid under §2518(1)(c).” United States v. Commito, 918 F.2d 95, 98

(9th Cir. 1990).

2.    We also reject Cota’s contentions that the July 2011 affidavit did not contain

a “full and complete statement” of facts, and that Cota was at least entitled to a

Franks hearing, based on the government’s failure to mention Cota’s Fourth

Amendment search waiver (“Fourth waiver”). To obtain a Franks hearing, a

defendant “must make a preliminary showing that the wiretap application[]

contained material misrepresentations or omissions.” United States v. Gonzalez,


                                           3
Inc., 412 F.3d 1102, 1110 (9th Cir. 2005). Reviewing the district court’s denial of

a Franks hearing de novo, Christie, 825 F.3d at 1069, we hold that the district

court did not err. First, Cota has not sufficiently established that the government

acted deliberately or recklessly in failing to mention the Fourth waiver. See

Rodriguez, 851 F.3d at 940-41; see also Gonzalez, Inc., 412 F.3d at 1111

(requiring defendant to make a “substantial showing that supports a finding of

intent or recklessness”). Second, Cota also failed to demonstrate that the

government’s omission of the Fourth waiver was material. The Fourth waiver

would not have affected the issuing court’s finding of necessity because the

affidavit explained that physical searches would have been unproductive and

potentially harmful to the investigation. See Rodriguez, 851 F.3d at 941. For the

same reason, the omission of the Fourth waiver from the affidavit does not lead to

the conclusion that the affidavit did not include a full and complete statement of

facts. See id.

3.    We also reject Cota’s argument that the wiretap applications did not

demonstrate necessity for a wiretap, as required by 18 U.S.C. § 2518(3)(c). After

determining that a wiretap application contains a full and complete statement of

facts, a court may only approve the application if it finds that “normal investigative

procedures have been tried and have failed or reasonably appear to be unlikely to


                                           4
succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(3)(c). We review for

abuse of discretion the issuing court’s finding that a wiretap was necessary under

§ 2518(3)(c). Christie, 825 F.3d at 1066. The issuing court has “considerable

discretion in finding necessity, particularly when the case involves the

investigation of a conspiracy.” United States v. Reed, 575 F.3d 900, 909 (9th Cir.

2009). Based on the affidavits’ thorough discussion of the investigation, including

the goals of the investigation and the information sought via wiretap, and in light

of the inability of traditional techniques to ferret out the sort of evidence sought in

this conspiracy investigation, the issuing courts did not abuse their discretion in

finding necessity for the wiretaps here.

4.    Finally, we reject Cota’s argument that his Sixth Amendment right was

violated when the district court found the fact of Cota’s prior felony conviction,

which served to enhance his sentence under 21 U.S.C. § 851. In Almendarez-

Torres v. United States, the Supreme Court held that the fact of a prior conviction

used to enhance a sentence is a sentencing factor and not an element of the offense

that must be decided by a jury. 523 U.S. 224, 247 (1998). Therefore, the district

court’s application of § 851 to enhance Cota’s sentence did not violate Cota’s Sixth

Amendment right.

      AFFIRMED.


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