NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. ODELL KINARD, Jr.,

Defendant

- Appellant. No. 19

- 30050
D.C. No. 2:17

- cr - 00101

- WFN

- 23

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of Washington Wm. Fremming Nielsen, District Judge, Presiding

Submitted July 6, 2020 * * Seattle, Washington Before: CLIFTON and M. SMITH, Circuit Judges, and DONATO, ** * District Judge. Odell Kinard, Jr. appeals the district court’s denial of his motion to dismiss
his indictment pursuant to 18 U.S.C. § 3161 ( Speedy Trial Act of 1974) and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable James Donato, United Sta tes District Judge for the Northern District of California, sitting by designation. 

# FILED

JUL 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

motions to suppress wi retap evidence pursuant to 18 U.S.C. § 251 8 ( Title III of the Omnibus Crime Control and Safe Streets Act of 1968 )

. We have jurisdiction pursuant to 28 U.S.C. § 1291, and w e affirm.
1. Reviewing the district court’s application of the Speedy Trial Ac t de novo, and its underlying findings for clear error , United States v. Nelson , 137 F.3d 1094, 1108 (9th Cir. 1998), we conclude that t he district court properly excluded the trial
continuance from March 19 to June 4, 2018 pursuant to 18 U.S.C. § 3161 (h)

. Kinard was properly joined in a multi

- defendant case because he was alleged to have participated in the same drug conspiracy as his codefendants. Fed. R. Crim. P. 8(b). He admitted to evidence linking him to a codefendant, from whom the FBI had purcha sed significant quantities of drugs. “Joint trials are the rule rather than the exception,” United States v. Brashier , 548 F.2d 1315, 1324 (9th Cir. 1976), and are “particularly appropriate” for conspiracy charges, United States v. Jenkins , 633 F.3d 788, 807 (9th Cir. 2011).
Because joinder was proper , the district court did not err in denying Kinard’s
motions to sever. The court considered Kinard’s arguments that there was insufficient evidence of his participation in the conspiracy and that he was like ly to
be convicted based on his association with his codefendants . The court fashioned appropriate relief by order ing Kinard to go to trial with a particular subset of
codefendants so as to avoid prejudice from joinder. It was not an abuse of3

discretion to attempt to mitigate any purported prejudice to Kinard by structuring trial groups to avoid th at risk, rather than severing. See F ed. R. Crim. P. 14(a); Zafiro v. United States , 506 U.S. 534, 538

– 39 ( 1993) (Rule 14 “does not require

severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court’s sound discretion.”). Consequently, t he 1 1

- week period of the continuance was excludable

. See United States v. Butz , 982 F.2d 1378, 1381 (9th Cir. 1993). The court granted a motion to continue the trial made by all codefendants except Kinard only after postponing the pretrial motions deadline to accommodate motions to suppress wiretap evidence, in which Kinard joined . Following the d enial of those motions , it became clear that postponing that deadline , in addition to forthcoming discovery , would have implications on the defendants’ ability to prepare for trial. T o allow the defendants more time to prepare their defenses, t he court continued the trial, stating th at th e case was complex, the c o defendants’ motion for the continuance was reasonable, and “the ends of justice required it.” The delay thus was excludable pursuant to 18 U.S.C. § 3161(h)(6) because Kinard was proper ly joined
for trial with codefendants who sought the continuance, and pursuant to § § 3161(h)(7) (A) and (B)(ii) , where counsel for codefendants required additional time to adequately prepare for trial in a complex case and the court made an express “ends of justice” finding.4

Kinard contends that the delay was unreasonable and prejudicial because a primary purpose of the continuance was to allow his codefendants to pursue plea negotiations , one of whom pled guilty and later testif ied against him. See United States v. Hall , 181 F.3d 1057, 1062 (9th Cir. 1999). We disagree. Where, as here, the primary purpose of granting the continuance is not to allow codefendants to pursue plea negotiations, and the case involves several codefendants who ultimately do not testify against the defendant, an extension is reasonable “because the importance of allowing [] codefendants time to prepare for trial further[s] the policy of favoring joint trials, and, thus, outweigh[s] any prejudice that may [result] from having one o f those codefendant s eventually decide to plead guilty and testify against” the defendant. United States v. Lewis , 611 F.3d 1172, 1178 (9th Cir. 2010) (citation omitted). Accordingly, we conclude that the delay was reasonable as to Kinard and excludable pursuant to 18 U.S.C. § § 3161(h)(6) and (7) (B)(ii) . We thus affirm the district court’s denial of Kinard’s motion to dismiss pursuant to the Speedy Trial Act.
2. The district court did not err in deny ing Kinard’s motions to suppress wiretap evidence. On de novo review, we conclude that the wiretap applications complied with 18 U.S.C. § 2518(1 ). See United States v. McGuire , 307 F.3d 1192, 1197 (9th Cir. 2002). The affidavits submitted in support of wiretap applications for Target Telephones 2 and 3 (TT2 and TT3) , belonging to codefendant Mendoza

-5

Vaca, d id not omit material information regarding Ra mirez

- Me rcado that law enforcement had obtained to that point. Although the affidavits d id not explicitl y

name Ramirez

- Mercado as a “source of supply,” they contain evidence that support s the conclusion that he was Mendoza

- Vaca’s supplier. In addition, the
affidavits contain a discussion of tried and failed investigative techniques , as well

as those techniq ues unlikely to succeed. The affidavit s thus contain the “full and complete statement” § 2518(1) requires

. It was not an abuse of discretion to authorize the wiretaps even if law
enforcement understood Ramirez

- Mercado to be Mendoza

- Vaca’s supplier. See
McGuire , 307 F.3d at 1197 (reviewing necessity determination for abuse of discretion). A wiretap may still be necessary if it gives the government the ability to develop “ an effective case,” meaning “evidence of guilty beyond a reasonable doubt.” Id. at 1199. In addition, t he goals of the wiretaps were not limited to seeking information about Ramirez

- Mercado. They also sought information about
additional co - conspirators , as well as information about the operation and organization of the drug conspiracy. Taking a “common sense approach” in evaluating the reasonableness of the government’s investigative methods, United States v. Rodriguez , 851 F.3d 931, 944 (9th Cir. 2017) , w here a months

- long investigation did not present sufficient evide nce of Ramirez

- Mercado’s role, and that evidence was not the sole purpose of the wiretap, it was not an abuse of6

discretion to authorize the wiretap.
AFFIRMED.