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

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase 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 (“Killi ngsworth”) appeals the denial of his motion to withdraw a guilty plea, and the denial of his motion to suppress certain evidence obtained through a teleph one wiretap. Because we believe there was an adequate factual basis to supp ort a finding of Killingsworth’s guilt, and because we believe the government compli ed with the pertinent provisions of Title III of the Omnibus Crime Contro l 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 Distri ct of Oklahoma returned a 19-count indictment charging various dru g and weapon offenses against Killingsworth and his co-defendant, PatrickHackbert. Killingsworth was named in fifteen of the substantive counts and in aforfeiture count. The two counts relevant to this appeal are: Count One, unde r which Killingsworth was charged with conspiracy to possess with intent to d istribute methylenedioxymethamphetamine (“ecstasy”), methamph etamine, and cocaine (powder) in violation of 21 U.S.C. § 846 (1994); an d Count Nineteen, under which Killingsworth was charged with using or carry ing a firearm in connection with a drug offense in violation of 18 U.S.C. § 924(c) (1994).- 3 -

The indictments against Killingsworth were returnedon May 18, 1995, after a lengthy investigation into the “Bustos Orga nization,” a drug distribution ring operated out of Oklahoma City. The investigat ion was coordinated by the FBI and the Oklahoma City, Oklahoma, police. Much of the incriminating information regarding Killingsworth was gathered th rough wiretap surveillance of two telephone lines subscribed to by Steve Schardei n 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 gather ed through the wiretap interceptions. In his motion, Killingsworth claime d 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 be cause Killingsworth was not named as a target in the wiretap application. In an order dated October 6, 1995, the district cou rt denied Killingsworth’s motion to suppress. Based on Agent Lotspeich’s aff idavit, the court concluded that the government had established that the wiretap was necessary. Specifically, the court noted that the Bustos Organization was co mprised largely of family members and close friends, and thus had proven diff icult to infiltrate; that- 4 -

previous efforts at investigation, including infilt ration, interviews with organization members, pen registers, and visual surveillance, had proven unsuccessful; and that confidential sources had notbeen forthcoming due to fear for their personal safety. Additionally, the courtrejected Killingsworth’s minimization and identification arguments, noting t hat Judge Alley’s authorization order had specifically included “othe rs as yet unknown” who were involved in the Bustos Organization, and that the o fficers 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 C ounts One and Nineteen. As part of his plea agreement, the othercharges 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 motio n. 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 du ring 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 pursuantto 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) char ge. The district court denied Killingsworth’s motion, r easoning that there was sufficient evidence that Killingsworth had used his gun in connection with his drug offenses, both by displaying it while transact ions took place and by employing it to intimidate people into paying theirdebts 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 mo tion to withdraw his guilty plea and the denial of his motion to suppres s.

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 i s imposed, the court may permit the plea to be withdrawn if the defendant sh ows any fair and just reason.” The defendant bears the burden of showing that a de nial 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 cons ider in determining whether the defendant has shown a fair and just reason for allowing withdrawal of a guilty plea: (1) whether the defend ant has asserted innocence; (2) prejudice to the government if the motion is grante d; (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 de fendant’s assistance of counsel during the plea; (6) whether the plea was knowing a nd 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. W e 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 § 9 24(c). We believe that Killingsworth is simply incorrect i n 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 t hat Killingsworth kept the gun1 This testimony was given at Hackbert’s sentencing h earing. The district

court took judicial notice of that testimony, relyi ng 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 cou rts 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 th e 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 witnes s Black told Agent Lotspeich that Killingsworth used the gun to intimidate indiv iduals who owed him money from prior drug transactions. In Bailey , the Court explained that a defendant “uses” a fir earm within the meaning of 18 U.S.C. § 924(c) when the defendant “h as a gun on display during a transaction.” 116 S.Ct. at 507. The Bailey Court also stated that “‘use’ certainly includes brandishing, displaying, bartering, striki ng 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 no t abuse its discretion in denying Killingsworth’s motion to withdraw his guil ty plea. Because the change in the law effected by Bailey simply does not bear on Killingsworth’s factual gu ilt or innocence, Killingsworth simply did not satisfy his burden of showing that a2 It appears that Killingsworth also argued below t hat the government

would not be prejudiced by the withdrawal of his gu ilty plea. We disagree. The government dismissed the other counts against Killi ngsworth in accepting Killingsworth’s plea agreement. Thus, if the plea were withdrawn and the government is not permitted to return to the pre-pl ea agreement status, the government would be forced either to obtain a new i ndictment on those counts or forego their prosecution. Finally, the defendant d id not attempt to prove any of the other Gordonfactors below and thus we will not review them her e. 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 iss ue 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 again st 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 1 968, as amended. 18 U.S.C. §§ 2510-22 (1994 & Supp. 1996) (“Title III”). Section2515 of Title III provides that evidence derived from a wiretap shall be suppr essed if that evidence was obtained unlawfully. 18 U.S.C. § 2515 (1994). Among other provisions, Title III requires the gove rnment 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 or ders 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 comp lete statement as to whether or not other investigative procedures have been tri ed and failed or why they reasonably appear to be unlikely to succeed if trie d 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 bee n tried and have failed or reasonably appear to be unlikely to succeed if trie d or to be too dangerous.” 18 U.S.C. § 2518(3)(c) (1994). We have explained thatthe purpose of the necessity requirement “is to ensure that the relatively intru sive device of wiretapping ‘is not resorted to in situations where traditional investi gative 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 o r aural surveillance[,] . . . general questioning or interrogation under an immunity grant, use of regular search3 Although Mesa-Rinconinvolved visual, rather than aural, electronic

surveillance, the Mesa-Rinconcourt 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-Rinconcourt 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 gr oups 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 govern ment must explain fully in its application what investigative techniq ues have been tried against the target of the wiretap. 18 U.S.C. §§ 25 18(1)(c), 2518(3)(c) (1994). If any of the four categories o f normal investigative techniques referred to in the legislative history of Title III have not been tried, the government must explai n with particularity why each of such untried techniques w ould be either unsuccessful or too dangerous. Those investigative procedures are: (1) standard visual and aural surveillance; (2) que stioning and interrogation of witnesses or participants (includi ng the use of grand juries and the grant of immunity if necessary); (3) use of search warrants; and (4) infiltration of conspiratorial gr oups 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 a s to why they also would be unsuccessful or too dangerous. We add penregisters and trap and trace devices to this list because they po ssess a logical- 11 -

relationship and close affinity to wiretaps and yetare less intrusive. Thus, unless the government can show that they woul d 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 th e less intrusive technique of reviewing available public, private, o r governmental records pertaining to the suspects under investigat ion to see if the requisite information needed to prosecute may be ob tained in that way. Id. , slip op. at 15-16. Finally, a district court’s wiretap authorization o rder 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 author ization order adequately complied with Title III because the wiretap application detailed that normal investigative techniques had been attempted with re gard 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 explaine d that visual surveillance had been attempted, but that it had proven unsucces sful because of the government’s difficulty in determining from surveil lance whether the purpose of a monitored meeting was for legitimate or criminal pu rposes. (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 Immun ity Grant The wiretap application revealed that the governmen t had attempted interviews with subjects but that information gaine d from those interviews proved insufficient to “identify all persons involved in t he conspiracy, the source of the drugs, its manner of financing, or the investment a nd 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 unsuc cessful because the family members at upper echelon of the Bustos Organizationwere unlikely to turn on each other. Finally, the application explained that further interviews would- 13 -

compromise the investigation by alerting the Busto s organization to that investigation. (¶ 69). In addition, the application discussed the possibil ity of instigating a grand jury investigation and an assistant United States Attorney concluded that would not be an appropriate investigative tool because th e subjects of the investigation would most likely invoke the Fifth Amendment, it wo uld be unwise to grant immunity because it might preclude prosecution of t he most culpable persons, and that it would alert the conspirators of the investi gation, which would jeopardize both the on-going investigation and the lives of in formants and undercover officers. (¶79). Search Warrants The government explained in its wiretap application that search warrants had not been used because documentary records of th e drug distribution conspiracy appeared to be sparse, and thus a search warrant would not reveal the kind of evidence needed to prove that certain famil y members participated in the conspiracy. (¶ 75). Further, the application expl ained 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 investigat ion, but that this agent had been unsuccessful in reaching the high levels of the org anization. (¶ 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 r egisters and long distance toll records had not provided sufficient e vidence with regard to the Bustos Organization because such methods were incap able of determining which individuals actually made and received the monitore d calls, nor could the methods ascertain the nature of the calls. (¶ 72). Finally, the government detailed how it had used pu blic, private, and governmental records as part of its investigation. Specifically, the government obtained records from Southwestern Bell Telephone C ompany to determine that subscribers to certain telephone were suspected mem bers of the Bustos Organization. (¶¶ 15, 17, 18, and 34). The govern ment 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 b eing made to digital pagers and thus suggestive of large-scale drug trafficking. (¶24). Further, the government obtained the criminal background of the intended in terceptees, (¶ 26) and relied upon Oklahoma City Police Department crime, investi gative, and arrest reports to further its investigation. (¶¶ 50, 51, 58, 59, 62, 63, and 65). However, none of these investigatory techniques provided the governm ent with sufficient information to complete its investigation. We believe that the government’s explanations in it s application comprise “a full and complete statement as to whether or notother 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 w iretaps where the government failed to meet the “necessity requirement”). The district court was also correct in rejecting Ki llingsworth’s claim that the authorization was converted into an impermissib le “general warrant” by allowing the recording of conversations among “othe rs not yet known.” The wiretap statute only requires that an application f or a wiretap include “the identity4 In addition to holding that the wiretapping statu te only requires an

application to name knownpersons who are subject to a wiretap, the Court in Kahnalso 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 a re 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]h e clear implication of this language is that when there is probable cause to be lieve that a particular telephone is being used to commit an offense but no particular person is identifiable, a wire interception order may, nevert heless, 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 author ization order mentioned Killingsworth by name does not render the intercept ion of communications to which Killingsworth was a party unlawful. Finally, the district court properly rejected Killi ngsworth’s claim that the wiretap evidence should be suppressed because the l aw enforcement officers allegedly did not minimize the communications inter cepted and recorded pursuant to section 2518(5). That section requires that wir etaps “be conducted in such a way as to minimize the interception of communicatio ns 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 t he law enforcement officers properly minimized interceptions in that case. Id. at 140-41 Several of these factors are instructive here. Fir st, 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 leew ay at the early stages of investigation where it is difficult to determine wh ich calls are relevant and which are irrelevant. Id. at 141. In the present case, Killingsworth contends that th e officers should have ceased recording once they realized that the person s involved in the conversations were neither Schardein nor Knight, the two people n amed in the application and the authorization order. For several reasons, Kill ingsworth’s argument runs counter to the flexible approach mandated by the Supreme Court in Scott

.- 18 -

First, Killingsworth does not dispute that the inte rcepted communications were drug-related (see D. Ct. Order 8/6/95 at 7, un contested in Killingsworth’s brief) and thus not precluded by the minimization requirements See 18 U.S.C. § 2518(5) (requiring that wiretaps “be conducted insuch a way as to minimize the interception of communications not otherwise subject to interception . . . .”) (emphasis added). The district court’s wiretap ord er clearly, and properly, permitted interceptions of overheard conversations between unlisted parties during the course of an otherwise valid wiretap int ercept if “it is determined during the portions of the conversations already ov erheard that the conversation is criminal in nature.” (D.Ct. Order, at 6). Second, the intercepted calls to which Killingswort h was a party were authorized by the order. The authorization order s pecifically 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. Ord er 8/6/95 at 6 (quoting authorization order). It is undisputed that Killin gsworth 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 circumsta nces 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 circ umstances of interception in determining how much minimization is appropriate ). Minimization does not require perfection in differentiating between innoc ent and criminal conversations. The investigation at issue here concerned a suspect ed 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 identi fied the voices of the persons named in the authorization order and had not yet de termined the scope of the Bustos Organization. More deference is owed with r egard 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 i n this case was neither invalid nor violated by the investigating officers. Therefore, we affirm the district court’s refusal to suppress the evidence a gainst Killingsworth obtained by wiretap interception.

CONCLUSION Because we believe the investigating officers compl ied 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 Killi ngsworth’s guilt under 18 U.S.C. § 924(c) (1994), we AFFIRM the district court’s den ials of both Killingsworth’s motion to suppress, and his motion to withdraw his guilty plea.