FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                    UNITED STATES COURT OF APPEALS                   March 6, 2008
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 06-4192
          v.                                                 Utah
 EFREN GURROLA-RODRIGUEZ,                        (D.C. No. 2:04-CR-769-TC)
 also known as Efren Gurrola,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before O’BRIEN, McWILLIAMS, and GORSUCH, Circuit Judges.



      Efren Gurrola-Rodriguez (Gurrola) moved to suppress evidence obtained

from the wiretap of his telephone claiming the government failed to prove the

statutory necessity requirement. The district court denied the motion. We affirm.

                                 I. BACKGROUND

      During the spring of 2004, Special Agent David Crosby with the Drug

Enforcement Administration (DEA) began investigating a woman suspected of



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
being a methamphetamine drug dealer in the Salt Lake City region of Utah.

Through a confidential source, Agent Crosby learned that Silvia Uribe was the

dealer. Over the next several months, Agent Crosby conducted multiple

undercover controlled buys with Uribe and her husband Alberto Camerana. With

each successive transaction Agent Crosby would increase the amount purchased

and attempt to place time pressures on Uribe in order to discover her source of

supply. Additionally, undercover officers obtained records detailing the calls

made by Uribe and Camerana on their telephones and placed a global positioning

satellite tracking device on Uribe’s car.

      By mid-August the DEA was still unable to determine Uribe’s source of

supply. The DEA submitted an application for a wiretap of two phones

subscribed to Camerana. Agent Crosby’s supporting affidavit detailed the

investigation up to that point and explained a wiretap was necessary to discover

Uribe’s supplier. The wiretap application was granted.

      In a relatively short period of time the DEA was able to determine through

the use of the wiretaps that Gurrola was connected to Uribe and Camerana’s drug

dealing. After monitoring several calls placed between Uribe and her suspected

supplier, the DEA was able to isolate the phone number being used by her

supplier. Physical surveillance established the number was being used by

Gurrola. 1 On September 13, 2004, the DEA submitted an application for a

      1
          The number was listed under another person’s name.

                                            -2-
wiretap of the phone connected to that number and identified Gurrola as one of

the targets of the investigation. The reviewing court approved the application.

Five additional wiretap applications targeting Gurrola were subsequently

submitted and approved.

      After several months of continued investigation, the DEA was unable to

penetrate the group further. A fourteen-count indictment was filed on November

18, 2004, naming six defendants including Uribe, Camerana and Gurrola. Gurrola

was only named in Count 7, charging him with conspiracy to distribute 500 grams

or more of methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C.

§§ 841(a)(1), 846. Gurrola filed a motion in limine to suppress evidence obtained

through the several wiretaps on the telephone used by him. Gurrola argued, inter

alia, the government failed to meet the statutory requirement of proving the

wiretaps were necessary. Gurrola requested a hearing in order to prove the

government failed to meet its burden of necessity, claiming the affidavits in

support of the wiretap applications were false or deliberately misleading. The

district court held an evidentiary hearing and denied Gurrola’s motion to

suppress. It concluded each of the wiretap applications targeting Gurrola was

supported by a sufficient showing of necessity.

      A jury convicted Gurrola and he was sentenced to 121 months

imprisonment. He appeals generally from that judgment and sentence, but in

particular from the denial of his motion to suppress.

                                         -3-
                                 II. DISCUSSION

      When the government seeks to obtain a wiretap, it must provide to the court

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). If the judge is

convinced, it may issue an ex parte order authorizing the wiretap. See 18 U.S.C.

§ 2518(3)(c).

      Gurrola argues the government failed to prove the wiretap of his phone was

necessary. “We review for an abuse of discretion a district court’s determination

that a wiretap was necessary.” United States v. Ramirez-Encarnacion, 

, 1222 (10th Cir. 2002). 2 The “defendant bears the burden of proving that a

wiretap is invalid once it has been authorized.” 

defendant succeeds in

showing that the necessity requirement was not met, evidence seized pursuant to

the wiretap must be suppressed.” United States v. Cline, 

, 1280

(10th Cir. 2003).

      “The purpose of the ‘necessity’ requirement is to ensure that the relatively

intrusive device of wiretapping is not resorted to in situations where traditional

      2
         Gurrola argues there is a conflict of authority in this Circuit regarding the
appropriate standard of review. This conflict was resolved in the en banc
footnote to 

n.1. “Although we examine de novo
whether ‘a full and complete statement’ was submitted meeting [statutory]
requirements, we review the conclusion that the wiretap[ ] [was] necessary in
each situation for an abuse of discretion.” 

States v.
Armendariz, 

, 608 (10th Cir. 1990)).

                                         -4-
investigative techniques would suffice to expose the crime.” United States v.

Castillo-Garcia, 

, 1187 (10th Cir. 1997), overruled on other

grounds by 

n.1. Generally, normal investigative

procedures include:

      (1) standard visual and aural surveillance; (2) questioning and
      interrogation of witnesses or participants (including the use of grand
      juries and the grant of immunity if necessary); (3) use of search
      warrants; and (4) infiltration of conspiratorial groups by undercover
      agents or informants. In addition, if other normal investigative
      techniques such as pen registers or trap and trace devices have not
      been tried, a similar explanation must be offered as to why they also
      would be unsuccessful or too dangerous.

may obtain a wiretapping warrant without trying any other

methods of investigation, if it demonstrates that normal investigatory techniques

reasonably appear to be unlikely to succeed if tried, or to be too dangerous to

try.” 

not claim the first wiretap application of Uribe and

Camerana’s phones was improper. Rather, he argues the second wiretap –

obtained on September 13, 2004 – and its fruits should have been suppressed by

the district court because the narcotics agents had not utilized normal

investigative techniques before seeking the wiretap. 3 Relying on United States v.

      3
         As part of his argument to the district court and on appeal, Gurrola
asserts the information contained in the government’s wiretap application was
false or deliberately misleading because it grafted investigative efforts prior to the
first wiretap and implied such investigation was previously targeted against
Gurrola. Ordinarily, when a defendant provides sufficient information disputing
the veracity of a government’s wiretap application, the defendant is entitled to a

                                         -5-
Mondragon, Gurrola argues the affidavit in support of his phone’s wiretap lacked

the requisite analysis of alternative investigative procedures which were used or

considered by law enforcement against him. 

(10th Cir. 1995). In

Mondragon, we held a second successive affidavit completely failed to address

necessity and should have been suppressed. Gurrola also relies on United States

v. Carnerio, in which the Ninth Circuit found successive wiretaps invalid because

of a failure by the government to show which particular investigative steps were

taken as to each new potential wiretap subject. 

, 1183 (9th Cir.

1988). Both cases are distinguishable from this one. The affidavit in support of

the wiretap of Gurrola’s telephone more than adequately addressed the

government’s investigation of Gurrola prior to the wiretap request and

demonstrated why a wiretap was necessary.




hearing to challenge the truthfulness of factual statements made in the supporting
affidavit. See United States v. Green, 

, 828 (10th Cir. 1999). It is
the defendant’s burden to overcome the presumption that an authorized wiretap
was proper. 

court held this threshold showing was not met. Gurrola has not
appealed from this holding, but he continues to argue the statements in the
affidavits are false or deliberately misleading. Such perfunctory arguments are
insufficient to overcome the affidavit’s presumptive facial validity. Accordingly,
we limit our review to whether the district court correctly found the wiretap of
Gurrola’s phone was necessary based on facially sufficient affidavits. As part of
our review, we consider whether the government met its burden to prove the
wiretap targeting the phone used by Gurrola was necessary. 

(“The statements [in the affidavit] must be factual in nature and they
must specifically relate to the individuals targeted by the wiretap.”).

                                         -6-
A. Prior Investigative Efforts

      The affidavit in question identified Uribe, Camerana and Gurrola as targets

of the wiretap application and discovering Gurrola’s source of supply as one of its

objectives. It identified several instances in which traditional investigative and

enhanced procedures were utilized. The affidavit discussed successful visual and

aural surveillance of Gurrola which identified him as the suspected user of the

targeted telephone number and described the conversations between Uribe and

Gurrola resulting from the first wiretap. For example, on one occasion, an officer

observed Gurrola leaving Uribe’s house, called the targeted phone number,

observed Gurrola pickup the call and hangup when no one responded. The officer

was able to identify Gurrola as the phone’s user through the registration of the

vehicle he was driving and the photo on his drivers license.

      The affidavit detailed the debriefing of a confidential source who was able

to provide information of Gurrola’s involvement in the distribution of

methamphetamine. The affidavit also provided information summarizing the

content of Gurrola’s phone toll records received pursuant to an administrative

subpoena. Significantly, it identified the number of calls placed from Gurrola’s

phone to Uribe and Camerana’s home phone which was not targeted by the

original wiretap.

B. Futility or Danger of Continuing Normal Investigative Activities

      The affidavit discussed the limited nature of continuing the traditional

                                         -7-
methods being used. Although recognizing valuable information was obtained

from physical surveillance, the affidavit discussed how, without capturing vocal

communications, visual surveillance would not lead to the identity of Gurrola’s

supplier. Because many of the meetings between Uribe and Gurrola took place

inside, their interactions would be out of law enforcement’s view and the

significance of the meeting lost. The affidavit recognized the usefulness of

undercover purchases to identify Uribe and Camerana, but detailed how Uribe and

Camerana would not discuss their supplier with the confidential source. It

discussed Uribe and Camerana’s growing suspicion of the confidential source,

who introduced the undercover agent to Uribe. No other person inside the

organization could be utilized as a confidential source without tipping the group

off to the investigation. 4

       The affidavit also identified traditional methods which were not attempted

or would be too dangerous to try. It asserted the use of interviews or grand juries

would not be useful because the persons targeted would likely tip off the

organization. Many of the people identified as potential witnesses were illegal

aliens who used false names and the government’s ability to correctly identify

them was deficient. Given Uribe, Camerana and Gurrola’s level of culpability,


       4
         By the time of the wiretap application, it was discovered that Uribe was
selling drugs to another dealer who knew the undercover agent was a police
officer. Should the group discover the undercover agent’s true identity it would
put the agent and the investigation at risk.

                                        -8-
immunity in exchange for cooperation would thwart the public policy of holding

them accountable for their illegal narcotic activities. The affidavit asserted the

use of search warrants would alert the organization to the investigation and bring

it to a premature close. At the time of the affidavit, it was not clear where or in

how many locations the drugs were being stored.

      Dialed Number Recorders (DNR), as used against Uribe and Camerana, had

been valuable up to that point in the investigation, but would provide little help in

furthering the investigation of Gurrola or his supplier. Because a DNR provided

only a historical record of numbers dialed or received and the subscriber’s name

does not always match the user, the DNR information could not identify the

actual caller or the significance of the conversations. By way of example, the

affidavit relayed the telephone number Gurrola had been using was identified

numerous times on the DNR of Uribe’s phone, however, it was not until the

wiretap of her phone that the government discovered Gurrola’s number was not

being used by its subscriber.

      In sum, the affidavit described in detail with particularity to Gurrola what

investigatory techniques were tried, the result, and why any unutilized method

was likely to be ineffective or dangerous. Consequently, the district court did not

abuse its discretion by concluding the wiretap was necessary.




                                          -9-
AFFIRMED.

                   ENTERED FOR THE COURT


                   Terrence L. O’Brien
                   Circuit Judge




            -10-