* After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case therefore is

ordered submitted without oral argument. 

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 30 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRYAN LEE KILLINGSWORTH,

Defendant - Appellant.

No. 96-6021

Appeal from the United States District Court

for the Western District of Oklahoma

(D.C. No. CR-95-58-L)

Submitted on the briefs:*

William P. Early, Assistant Federal Public Defender, Oklahoma City, OK, for the

appellant.

Patrick M. Ryan, United States Attorney, Leslie M. Maye, Assistant United States

Attorney, Oklahoma City, OK, for the appellee.

Before BRORBY, HOLLOWAY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.
- 2 -

Defendant-Appellant Bryan Lee Killingsworth (“Killingsworth”) appeals

the denial of his motion to withdraw a guilty plea, and the denial of his motion to

suppress certain evidence obtained through a telephone wiretap. Because we

believe there was an adequate factual basis to support a finding of Killingsworth’s

guilt, and because we believe the government complied with the pertinent

provisions of Title III of the Omnibus Crime Control and Safe Streets Act of

1968, as amended, 18 U.S.C. § 2510-22 (1994 & Supp. 1996), we affirm.

 

BACKGROUND

On May 19, 1995, a grand jury in the Western District of Oklahoma

returned a 19-count indictment charging various drug and weapon offenses

against Killingsworth and his co-defendant, Patrick Hackbert. Killingsworth was

named in fifteen of the substantive counts and in a forfeiture count. The two

counts relevant to this appeal are: Count One, under which Killingsworth was

charged with conspiracy to possess with intent to distribute

methylenedioxymethamphetamine (“ecstasy”), methamphetamine, and cocaine

(powder) in violation of 21 U.S.C. § 846 (1994); and Count Nineteen, under

which Killingsworth was charged with using or carrying a firearm in connection

with a drug offense in violation of 18 U.S.C. §924(c) (1994).
- 3 -

The indictments against Killingsworth were returned on May 18, 1995,

after a lengthy investigation into the “Bustos Organization,” a drug distribution

ring operated out of Oklahoma City. The investigation was coordinated by the

FBI and the Oklahoma City, Oklahoma, police. Much of the incriminating

information regarding Killingsworth was gathered through wiretap surveillance of

two telephone lines subscribed to by Steve Schardein and Jill Knight, two

suspected members of the Bustos Organization. The wiretap was authorized by an

Order issued by Judge Alley on February 17, 1995, pursuant to 18 U.S.C. § 2518

(1994). 

Killingsworth moved to suppress the evidence gathered through the wiretap

interceptions. In his motion, Killingsworth claimed that: (1) the government

failed to show necessity for the surveillance; (2) the wiretap interceptions were

not conducted in conformity with the authorization order; and (3) the

authorization order was insufficient on its face because Killingsworth was not

named as a target in the wiretap application.

In an order dated October 6, 1995, the district court denied Killingsworth’s

motion to suppress. Based on Agent Lotspeich’s affidavit, the court concluded

that the government had established that the wiretap was necessary. Specifically,

the court noted that the Bustos Organization was comprised largely of family

members and close friends, and thus had proven difficult to infiltrate; that
- 4 -

previous efforts at investigation, including infiltration, interviews with

organization members, pen registers, and visual surveillance, had proven

unsuccessful; and that confidential sources had not been forthcoming due to fear

for their personal safety. Additionally, the court rejected Killingsworth’s

minimization and identification arguments, noting that Judge Alley’s

authorization order had specifically included “others as yet unknown” who were

involved in the Bustos Organization, and that the officers did not know that

Killingsworth was not one of the persons named in the authorization order when

they recorded his incriminating conversations.

On October 17, 1995, Killingsworth pled guilty to Counts One and

Nineteen. As part of his plea agreement, the other charges were dismissed, and

Killingsworth’s plea was conditioned under Fed. R. Crim. P. 11(a)(2) upon his

right to appeal the denial of his suppression motion.

On December 6, 1995, the Supreme Court decided Bailey v. United States ,

116 S. Ct. 501 (1995). In Bailey , the Court held that a person may not be

convicted of having “used” a firearm in connection with a drug offence in

violation of 18 U.S.C. § 924(c) unless he “actively employed the firearm during

and in relation to the predicate crime.” Id. at 509. Bailey effectively overruled

prior Tenth Circuit precedent, under which a § 924(c) “use” conviction could be

based on evidence showing that the defendant merely had access to a firearm. See
- 5 -

United States v. Hager , 969 F.2d 883, 888-89 (10th Cir.), cert. denied , 506 U.S.

964 (1992). Based on Bailey , Killingsworth filed a pre-sentence motion to

withdraw his guilty plea to Count Nineteen pursuant to what is now codified as

Fed. R. Crim. P. 32(e), claiming that there was no longer a factual basis

supporting a finding of guilty on the § 924(c) charge. 

The district court denied Killingsworth’s motion, reasoning that there was

sufficient evidence that Killingsworth had used his gun in connection with his

drug offenses, both by displaying it while transactions took place and by

employing it to intimidate people into paying their debts for drugs purchased from

him. Killingsworth was then sentenced to sixty months confinement on Count

One and to sixty months confinement on Count 19, to run consecutively.

Killingsworth now appeals both the denial of his motion to withdraw his

guilty plea and the denial of his motion to suppress.

Discussion

A. Motion to Withdraw the Plea

Fed. R. Crim. P. 32(e) provides that “[i]f a motion to withdraw a plea of

guilty or nolo contendere is made before sentence is imposed, the court may

permit the plea to be withdrawn if the defendant shows any fair and just reason.” 

The defendant bears the burden of showing that a denial of a motion to withdraw
- 6 -

a plea was not “fair and just,” United States v. Gordon , 4 F.3d 1567, 1572 (10th

Cir. 1993), cert. denied , 510 U.S. 1184 (1994), and we review the denial of such a

motion for an abuse of discretion. United States v. Guthrie , 64 F.3d 1510, 1513

(10th Cir. 1995).

In Gordon , we outlined seven factors that courts should consider in

determining whether the defendant has shown a fair and just reason for allowing

withdrawal of a guilty plea: (1) whether the defendant has asserted innocence; (2)

prejudice to the government if the motion is granted; (3) whether the defendant

has delayed filing the motion to withdraw his plea; (4) inconvenience to the court

if the motion is granted; (5) the quality of the defendant’s assistance of counsel

during the plea; (6) whether the plea was knowing and voluntary; and (7) the

waste of judicial resources. Gordon , 4 F.3d at 1572.

Killingsworth’s argument that there is no longer a factual basis for his

conviction under § 924(c) goes to the first factor we consider under Gordon , that

is, whether the defendant claims to be innocent. We note that Killingsworth does

not dispute the government’s version of the facts; he merely disputes whether

those facts can give rise to a conviction under § 924(c).

We believe that Killingsworth is simply incorrect in asserting that there was

no factual basis for his guilt under Bailey . As the district court discussed in its

order, testimony of witness Marla Black indicated that Killingsworth kept the gun
1 This testimony was given at Hackbert’s sentencing hearing. The district

court took judicial notice of that testimony, relying on cases allowing sentencing

courts to take judicial notice of information that has “sufficient indicia of

reliability to support its probable accuracy,” United States v. Davis , 912 F.2d

1210, 1214 (10th Cir. 1990), and cases allowing courts to take judicial notice of

its own records, United States v Valencia , 44 F.3d 269, 273 n.3 (5th Cir. 1995);

United States v. Estep , 760 F.2d 1060, 1063 (10th Cir. 1985). (See D.Ct. Order

1/5/96, at 3). Killingsworth does not object to the court’s taking judicial notice of

this testimony.

- 7 -

on display in his bedroom during drug transactions that were conducted there. 1

 

Additionally, both co-defendant Hackbert and witness Black told Agent Lotspeich

that Killingsworth used the gun to intimidate individuals who owed him money

from prior drug transactions.

In Bailey , the Court explained that a defendant “uses” a firearm within the

meaning of 18 U.S.C. § 924(c) when the defendant “has a gun on display during a

transaction.” 116 S.Ct. at 507. The Bailey Court also stated that “‘use’ certainly

includes brandishing, displaying, bartering, striking with, and most obviously,

firing or attempting to fire, a firearm.” Id. at 508. Thus, Killingsworth’s claim

that there was not a factual basis to convict him under Bailey is simply false.

Accordingly, we hold that the district court did not abuse its discretion in

denying Killingsworth’s motion to withdraw his guilty plea. Because the change

in the law effected by Bailey simply does not bear on Killingsworth’s factual guilt

or innocence, Killingsworth simply did not satisfy his burden of showing that a
2

 It appears that Killingsworth also argued below that the government

would not be prejudiced by the withdrawal of his guilty plea. We disagree. The

government dismissed the other counts against Killingsworth in accepting

Killingsworth’s plea agreement. Thus, if the plea were withdrawn and the

government is not permitted to return to the pre-plea agreement status, the

government would be forced either to obtain a new indictment on those counts or

forego their prosecution. Finally, the defendant did not attempt to prove any of

the other Gordon factors below and thus we will not review them here. See Sac &

Fox Nation v. Hanson, 47 F.3d 1061, 1063 (10th Cir.), cert. denied, 116 S. Ct. 57

(1995) (explaining that we will not consider an issue on appeal that was not raised

below, except for the most manifest error or where the issue of sovereign

immunity or jurisdiction is raised).

- 8 -

withdrawal of his guilty plea would be fair and just. See Guthrie , 64 F.3d at

1513. 2

 

B. Motion to Suppress

Killingsworth also contends that the evidence against him should be

suppressed due to various alleged violations of the wiretapping statute, Title III of

the Omnibus Crime Control and Safe Streets Act of 1968, as amended. 18 U.S.C.

§§ 2510-22 (1994 & Supp. 1996) (“Title III”). Section 2515 of Title III provides

that evidence derived from a wiretap shall be suppressed if that evidence was

obtained unlawfully. 18 U.S.C. § 2515 (1994).

Among other provisions, Title III requires the government to make a full

and complete showing that a wiretap is necessary. See Id. §§ 2518(1)(c),

2518(3)(c). It also requires that authorization orders include the identity, if
- 9 -

known, of persons subject to the wiretap, id. § 2518(1)(b)(iv), and that the

interception of communications be minimized, id. § 2518(5).

Under what is known as the “necessity requirement,” an application for

wiretap authorization must contain “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) (1994). The judge issuing an authorization order then must

find that “normal investigative procedures have been tried and have failed or

reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18

U.S.C. § 2518(3)(c) (1994). We have explained that the purpose of the necessity

requirement “is to ensure that the relatively intrusive device of wiretapping ‘is not

resorted to in situations where traditional investigative techniques would suffice

to expose the crime.’” United States v. Edwards , 69 F.3d 419, 429 (10th Cir.

1995), cert. denied , 116 S.Ct. 2497 (1996) (quoting United States v. Kahn , 415

U.S. 143, 153 n.12 (1974)).

In United States v. Mesa-Rincon , 911 F.2d 1433 (10th Cir. 1990), the

legislative history of Title III was consulted for examples of the types of

investigative procedures that should be considered by the government as a matter

of first resort; namely: “‘ . . .standard visual or aural surveillance[,] . . . general

questioning or interrogation under an immunity grant, use of regular search
3

 Although Mesa-Rincon involved visual, rather than aural, electronic

surveillance, the Mesa-Rincon court adopted a “necessity” requirement for the

government’s use of clandestine television cameras by analogizing to the very

provisions of Title III at issue here. See Mesa-Rincon, 911 F.2d at 1442-43. The

Mesa-Rincon court predicated its analysis primarily on case law pertaining to

wiretapping, and on the same legislative history materials applicable to the

present case. See id. at 1442-45.

- 10 -

warrants, and the infiltration of conspiratorial groups by undercover agents or

informants.’” Id. at 1444 (quoting S. Rep. No. 90-1097, at [79] (1968), reprinted

in 1968 U.S.C.C.A.N. 2112, 2190). 3 We elaborated upon the investigative

procedures that must be considered before resort is made to wiretapping in 

United States v. Castillo-Garcia , No. 96-1259, (10th Cir. June 30, 1997). There,

we said,

We now expressly hold what the court in Mesa-Rincon

suggested and what seems clearly to be contemplated by Title III. To

obtain an electronic surveillance order, the government must explain

fully in its application what investigative techniques have been tried

against the target of the wiretap. 18 U.S.C. §§ 2518(1)(c),

2518(3)(c) (1994). If any of the four categories of normal

investigative techniques referred to in the legislative history of Title

III have not been tried, the government must explain with

particularity why each of such untried techniques would be either

unsuccessful or too dangerous. Those investigative procedures are: 

(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. We add pen registers and

trap and trace devices to this list because they possess a logical
- 11 -

relationship and close affinity to wiretaps and yet are less intrusive. 

Thus, unless the government can show that they would be ineffective

or dangerous they must be tried before resorting to wiretaps.

Whether other normal investigative techniques must also be

explored before turning to wiretaps will depend on the unique

circumstances of each investigation. For example, it will often be

the case that the government must consider first the less intrusive

technique of reviewing available public, private, or governmental

records pertaining to the suspects under investigation to see if the

requisite information needed to prosecute may be obtained in that

way.

Id., slip op. at 15-16.

Finally, a district court’s wiretap authorization order is presumed proper,

and the defendant bears the burden of overcoming this presumption. United States

v. Nunez , 877 F.2d 1470, 1472 (10th Cir.), cert. denied , 493 U.S. 981 (1989). We

review de novo whether the necessity requirement was met. United States v.

Quintana , 70 F.3d 1167, 1169 (10th Cir. 1995).

With these guidelines in mind, we believe that both the government’s

wiretap application and the district court’s authorization order adequately

complied with Title III because the wiretap application detailed that normal

investigative techniques had been attempted with regard to the Bustos

Organization and it explained why those techniques had been unsuccessful. 

(Application, ¶¶ 66-80).
- 12 -

Standard Visual or Aural Surveillance

In its wiretap application, the government explained that visual surveillance

had been attempted, but that it had proven unsuccessful because of the

government’s difficulty in determining from surveillance whether the purpose of a

monitored meeting was for legitimate or criminal purposes. (Application, ¶ 70). 

The application explained that such a determination was especially difficult with

regard to the Bustos Organization because the core of the organization was

“related by blood and/or marriage.” ( Id.) 

General Questioning or Interrogation Under an Immunity Grant

The wiretap application revealed that the government had attempted

interviews with subjects but that information gained from those interviews proved

insufficient to “identify all persons involved in the conspiracy, the source of the

drugs, its manner of financing, or the investment and use of drug proceed.” 

(¶ 66). One particular subject, Jose Cruz-Bustos, offered to cooperate with law

enforcement concerning the investigation but failed to provide any information

concerning his brother and other family members. (¶ 68). The application also

explained that further interviews would prove unsuccessful because the family

members at upper echelon of the Bustos Organization were unlikely to turn on

each other. Finally, the application explained that further interviews would
- 13 -

compromise the investigation by alerting the Bustos organization to that

investigation. (¶ 69).

In addition, the application discussed the possibility of instigating a grand

jury investigation and an assistant United States Attorney concluded that would

not be an appropriate investigative tool because the subjects of the investigation

would most likely invoke the Fifth Amendment, it would be unwise to grant

immunity because it might preclude prosecution of the most culpable persons, and

that it would alert the conspirators of the investigation, which would jeopardize

both the on-going investigation and the lives of informants and undercover

officers. (¶79).

Search Warrants

The government explained in its wiretap application that search warrants

had not been used because documentary records of the drug distribution

conspiracy appeared to be sparse, and thus a search warrant would not reveal the

kind of evidence needed to prove that certain family members participated in the

conspiracy. (¶ 75). Further, the application explained that the execution of

search warrants would notify the principals of the existence of the ongoing

investigation. ( Id.). 
- 14 -

Infiltration by Undercover Agents or Informants .

The government disclosed in its wiretap application that it was currently

using an undercover agent as part of its investigation, but that this agent had been

unsuccessful in reaching the high levels of the organization. (¶ 76). The

government also disclosed that it had used confidential informants to make illegal

drug purchases, but explained that these informants were unwilling to testify, and

at any rate, had little information concerning the major participants in the

organization. (¶ 78).

Other Techniques

The government also explained that its use of pen registers and long

distance toll records had not provided sufficient evidence with regard to the

Bustos Organization because such methods were incapable of determining which

individuals actually made and received the monitored calls, nor could the methods

ascertain the nature of the calls. (¶ 72). 

Finally, the government detailed how it had used public, private, and

governmental records as part of its investigation. Specifically, the government

obtained records from Southwestern Bell Telephone Company to determine that

subscribers to certain telephone were suspected members of the Bustos

Organization. (¶¶ 15, 17, 18, and 34). The government also analyzed phone

records to determine that the length of phone calls made by suspected members of
- 15 -

the Bustos Organization indicated that calls were being made to digital pagers and

thus suggestive of large-scale drug trafficking. (¶ 24). Further, the government

obtained the criminal background of the intended interceptees, (¶ 26) and relied

upon Oklahoma City Police Department crime, investigative, and arrest reports to

further its investigation. (¶¶ 50, 51, 58, 59, 62, 63, and 65). However, none of

these investigatory techniques provided the government with sufficient

information to complete its investigation.

We believe that the government’s explanations in its application comprise

“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) (1994). Thus,

the district court did not err in finding that the government had satisfied the 

“necessity requirement” with regard to the wiretap at issue. See 18 U.S.C.

§ 2518(3)(c) (1994). Compare Castillo-Garcia , No. 96-1259 (granting suppression

with respect to evidence obtained through certain wiretaps where the government

failed to meet the “necessity requirement”).

The district court was also correct in rejecting Killingsworth’s claim that

the authorization was converted into an impermissible “general warrant” by

allowing the recording of conversations among “others not yet known.” The

wiretap statute only requires that an application for a wiretap include “the identity
4

 In addition to holding that the wiretapping statute only requires an

application to name known persons who are subject to a wiretap, the Court in

Kahn also recognized that the failure to name all persons subject to a wiretap does

not render the wiretap unconstitutional. 415 U.S. at 154-55 & n.15.

- 16 -

of the person, if known , committing the offense and whose communications are to

be intercepted.” 18 U.S.C. § 2518(1)(b)(iv) (1994) (emphasis added). Likewise,

the district court’s authorization order must specify “the identity of the person, if

known , whose communications are to be intercepted.” Id. § 2518(4)(a) (emphasis

added). As the Supreme Court has recognized, “[t]he clear implication of this

language is that when there is probable cause to believe that a particular

telephone is being used to commit an offense but no particular person is

identifiable, a wire interception order may, nevertheless, properly issue under the

statute.” United States v. Kahn , 415 U.S. 143, 157 (1974). 4

 Thus, the mere fact

that neither the wiretap application nor the authorization order mentioned

Killingsworth by name does not render the interception of communications to

which Killingsworth was a party unlawful.

Finally, the district court properly rejected Killingsworth’s claim that the

wiretap evidence should be suppressed because the law enforcement officers

allegedly did not minimize the communications intercepted and recorded pursuant

to section 2518(5). That section requires that wiretaps “be conducted in such a

way as to minimize the interception of communications not otherwise subject to
- 17 -

interception under this chapter . . . .” 18 U.S.C. § 2518(5) (1994). The Supreme

Court has held that this provision does not create an “inflexible rule of law,” but

rather demands an evaluation of the “facts and circumstances of each case.” Scott

v. United States , 436 U.S. 128, 139-40 (1978).

The Court in Scott considered several “factors” in determining that the law

enforcement officers properly minimized interceptions in that case. Id. at 140-41 

Several of these factors are instructive here. First, the Court emphasized the

importance of considering the “circumstances of the wiretap” at issue rather than

the absolute percentage of irrelevant calls intercepted. Id. at 140. Next, the

Court stated that “more widespread surveillance” is justified when the wiretap is

targeted towards what is thought to be a widespread conspiracy. Id. Finally, the

Court noted that officers should be given some leeway at the early stages of

investigation where it is difficult to determine which calls are relevant and which

are irrelevant. Id. at 141.

In the present case, Killingsworth contends that the officers should have

ceased recording once they realized that the persons involved in the conversations

were neither Schardein nor Knight, the two people named in the application and

the authorization order. For several reasons, Killingsworth’s argument runs

counter to the flexible approach mandated by the Supreme Court in Scott .
- 18 -

First, Killingsworth does not dispute that the intercepted communications

were drug-related (see D. Ct. Order 8/6/95 at 7, uncontested in Killingsworth’s

brief) and thus not precluded by the minimization requirements See 18 U.S.C.

§ 2518(5) (requiring that wiretaps “be conducted in such a way as to minimize the

interception of communications not otherwise subject to interception . . . .”)

(emphasis added). The district court’s wiretap order clearly, and properly,

permitted interceptions of overheard conversations between unlisted parties

during the course of an otherwise valid wiretap intercept if “it is determined

during the portions of the conversations already overheard that the conversation is

criminal in nature.” (D.Ct. Order, at 6).

Second, the intercepted calls to which Killingsworth was a party were

authorized by the order. The authorization order specifically stated that

“‘[i]nterception must be suspended immediately when it is determine [ sic ] . . .

that none of the named interceptees or any of their confederates , when identified,

are participants in the conversation.’” D. Ct. Order 8/6/95 at 6 (quoting

authorization order). It is undisputed that Killingsworth was a confederate of

Schardein and Knight, and was viewed as such by the officers recording the

conversation. Thus, the minimization requirements were satisfied. 

Finally, assuming arguendo that the conversations at issue were not within

the scope of the authorization order, the circumstances in which those calls were
- 19 -

intercepted were such that a liberal approach to minimization is appropriate. See

Scott , 436 U.S. at 140 (requiring courts to look to circumstances of interception

in determining how much minimization is appropriate). Minimization does not

require perfection in differentiating between innocent and criminal conversations. 

The investigation at issue here concerned a suspected widespread drug

conspiracy, and thus “more extensive surveillance” was justified. Id. Further, the

conversations at issue were intercepted during the early stages of the

investigation, when the officers had not yet identified the voices of the persons

named in the authorization order and had not yet determined the scope of the

Bustos Organization. More deference is owed with regard to such interceptions

because it is difficult for investigating officers to determine which conversations

are pertinent and which are impertinent early in an investigation. Id. at 141.

Accordingly, we believe the wiretap authorization in this case was neither

invalid nor violated by the investigating officers. Therefore, we affirm the

district court’s refusal to suppress the evidence against Killingsworth obtained by

wiretap interception.

CONCLUSION

Because we believe the investigating officers complied with the pertinent

provisions of the wiretapping statute, 18 U.S.C. § 2518 (1994), and because we
- 20 -

believe that, notwithstanding Bailey v. United States , 116 S.Ct. 501 (1995), there

was sufficient factual basis for a finding of Killingsworth’s guilt under 18 U.S.C.

§ 924(c) (1994), we AFFIRM the district court’s denials of both Killingsworth’s

motion to suppress, and his motion to withdraw his guilty plea.