United States Court of Appeals

For the First Circuit

No. 04-1013

United States,

Appellee,

v.

Freddy Martinez,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

 Selya, Lipez, and Howard, Circuit Judges.

John H. LaChance, for appellant.

Rachel E. Hershfang, Assistant U.S. Attorney, with whom

Michael J. Sullivan, U.S. Attorney, was on brief, for appellee.

June 23, 2006
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LIPEZ, Circuit Judge. Freddy Martinez was convicted by

a jury of conspiracy to possess and distribute narcotics. On

appeal, Martinez challenges his conviction, asserting that the

district court erred in denying his motion to suppress evidence

obtained through the use of wiretaps on three cellular telephones.

Martinez claims that the government did not meet the strict

requirements for obtaining such wiretaps set forth in 18 U.S.C. §

2518. He also appeals his sentence, in the aftermath of the

Supreme Court's decision in United States v. Booker, 543 U.S. 220

(2005). We affirm.

I.

Given that the central issue in this appeal is the

validity of certain wiretaps obtained by the government, we begin

by describing the relevant facts of Martinez's conviction,

including the history of the wiretaps.

A. The original investigation leading to Martinez

An initial multi-district investigation by the Drug

Enforcement Administration ("DEA") targeted two men, known as

"Hercules" and "Pachito". Court-authorized electronic surveillance

used during this investigation (the "Pachito wires") intercepted

communications with a Dominican male identified only as "Gallo".

In November 1999, after authorization for the Pachito wires

expired, the DEA persuaded Hercules to cooperate with authorities.

Hercules provided the DEA with information about his drug-
 "Consensual" simply means that Hercules consented to the 1

recording of the conversation.

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trafficking activities in Massachusetts, including information that

Hercules and Pachito had supplied hundreds of kilograms of cocaine

to "Gallo".

The DEA's investigation of "Gallo" commenced in

January/February 2000. Through physical surveillance, the DEA

identified "Gallo" as Martinez. With Hercules's assistance, the

DEA placed consensually recorded calls to Martinez, and recorded 1

and monitored a meeting between Martinez and Hercules. At the

meeting, the two discussed different prices per kilogram of

cocaine; however, a deal was never consummated.

During the same time period -- January/February 2000 --

the DEA in New Hampshire apprehended an individual referred to as

"CW-2". CW-2, one of Martinez's cocaine customers, also agreed to

cooperate with law enforcement officials. CW-2 told the DEA that

he had been purchasing approximately one kilogram of cocaine from

Martinez every three weeks since February 1999. CW-2 also

identified an individual known as "Lulu," a/k/a Luis Melendez, as

Martinez's partner in the drug business.

CW-2 also made a series of recorded phone calls to

Martinez in February 2000. In these calls, CW-2 and Martinez

discussed the amount of money CW-2 owed Martinez for a kilogram of

cocaine CW-2 had in his possession when the DEA apprehended CW-2.
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At the DEA's direction and under its surveillance, CW-2 made three

partial payments to Martinez for the cocaine. The first payment

was made to Claudia Sanchez ("Sanchez"), Martinez's live-in

girlfriend; the second to Sanchez and Martinez; and the third to

Martinez.

B. The Martinez wiretaps

Contemporaneous with their use of Hercules and CW-2, the

DEA agents used a number of traditional law enforcement

investigative techniques -- including physical surveillance, pen

registers, and telephone toll records -- to some effect.

Meanwhile, the DEA rejected the use of other techniques --

including search warrants, grand jury subpoenas, and witness

interviews -- for fear that they could compromise the

investigation. As detailed in the affidavits in support of the

three wiretaps at issue here, the DEA asserted that traditional

investigative techniques were incapable of meeting the DEA's

longer-term goals for the Martinez investigation. These goals

included: identifying Martinez's current source(s) for his supply

of cocaine, his other management-level co-conspirators, and major

customers; learning how Martinez was disposing of the proceeds from

his operation; locating additional stash locations; and

understanding the use of already-identified stash locations. A

federal judge approved the three wiretaps.
 18 U.S.C. § 2518 was enacted as part of Title III of the 2

Omnibus Crime Control and Safe Streets Act of 1968, which is

codified at 18 U.S.C. §§ 2510-22 ("Title III").

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C. The suppression motion and trial

As a result of the wiretap investigation, Martinez and

ten co-defendants were charged on May 17, 2000, in a one-count

indictment with conspiracy to possess with intent to distribute,

and to distribute, cocaine, in violation of 21 U.S.C. §§ 841(a)(1)

and 846. Searches executed the following day at the homes of the

defendants pursuant to search warrants uncovered cocaine and other

controlled substances, money, and paraphernalia used to cut and

prepare cocaine for distribution. In subsequent proceedings,

Martinez moved to suppress the electronic surveillance evidence

obtained from the three wiretaps on the ground that DEA Special

Agent Samuel J. Masiello's ("Masiello") affidavits in support of

the wiretaps on the three cellular telephones used by Martinez did

not satisfy the "necessity" requirement of 18 U.S.C. § 2518(1)(c).2

The district court denied the motion to suppress "for the reasons

stated in the government's memorandum." On February 12, 2003,

following an 11-day jury trial, Martinez was found guilty. The

verdict included a finding that the conspiracy had involved five or

more kilograms of cocaine. 

D. Sentencing

The Presentence Report ("PSR") concluded that Martinez

was responsible for 205 kilograms of cocaine and 74.84 kilograms of
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marijuana, yielding a base offense level of 38. The PSR also

recommended that Martinez should receive a four-level upward

adjustment because of his supervisory role in the offense, pursuant

to USSG § 3B1.1, resulting in a total offense level of 42. Because

he fell within Criminal History Category II, the PSR calculated

Martinez's guideline sentence range to be 360 months to life.

Martinez was also subject to a statutory mandatory minimum sentence

of 10 years pursuant to 21 U.S.C. § 841(b)(1)(A).

Martinez was sentenced on December 11, 2003. He did not

contest the PSR's calculations, and he did not move for a downward

departure or advance an argument for leniency. The district court

accepted the guideline recommendation in the PSR in its entirety.

The district court then sentenced Martinez to a term of 360 months

of imprisonment, the bottom of his applicable guideline range, and

five years of supervised release. Martinez did not object to the

sentence.

II.

A. Legal background

Martinez contends that the district court erred in

denying his motion to suppress the evidence obtained by the three

Title III wiretaps. The statutory requirements for a Title III

wiretap, set forth in 18 U.S.C. § 2510 et seq., include what is

commonly referred to as the "necessity" requirement. In an

application for a Title III wiretap, the government must include "a
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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). In United States v.

Villarman-Oviedo, 325 F.3d 1 (1st Cir. 2003), we held § 2518(1)(c)

"to mean that the statement should demonstrate that the government

has made a reasonable, good faith effort to run the gamut of normal

investigative procedures before resorting to means so intrusive as

electronic interception of telephone calls." Id. at 9 (internal

citations and quotation marks omitted). In such a statement, "[i]t

is not necessary . . . to show that other methods have been

entirely unsuccessful." Id.

The court authorizing the Title III wiretap "must satisfy

itself that the government has used normal techniques but it has

encountered difficulties in penetrating a criminal enterprise or in

gathering evidence -- to the point where (given the statutory

preference for less intrusive techniques) wiretapping becomes

reasonable." United States v. Abou-Saada, 785 F.2d 1, 11 (1st Cir.

1986). On appeal, the sufficiency of the government's statement

proffered to satisfy the necessity requirement is reviewed under a

substantially deferential standard. In United States v. Santana,

342 F.3d 60 (1st Cir. 2003), we stated that "[w]hen reviewing the

government's showing of necessity, our role is not to make a de

novo determination of sufficiency as if we were the issuing judge,
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but to decide if the facts set forth in the application were

minimally adequate to support the determination that was made."

Id. at 65 (internal quotation marks, brackets, and citations

omitted).

B. Martinez's arguments

Defendant challenges the use of wiretap evidence in this

case on two grounds. First, he argues that "a fair reading of the

affidavits reveals that the statements of necessity are largely

boilerplate and do not relate specifically to the Martinez

investigation." Second, Defendant claims that the government has

"manufacture[d] necessity by defining its investigative goals so

broadly and so generally that a wiretap could be obtained in any

drug investigation." We analyze these assertions in turn.

i. Boilerplate

Martinez says that the affidavits are too general, i.e.,

they do not specifically relate the request for Title III

surveillance to the specific case at hand. This characterization

of the affidavits is inaccurate. The Masiello affidavits describe

in case-specific detail the DEA's use, or consideration and

rejection, of eight traditional investigative techniques: (1)

physical surveillance; (2) cooperating witnesses; (3) undercover

officers; (4) witness interviews; (5) grand jury subpoenas; (6)

search warrants; (7) pen registers; and (8) telephone tolls. 
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For example, as to physical surveillance, the affidavits

stated that, while partially successful in advancing the

investigation -- i.e., identifying "Gallo" as Martinez and

tentatively identifying two locations used as "stash houses" or

"money houses" -- physical surveillance was of limited additional

value because it could only tell the DEA what they could see, e.g.,

the contents of opaque black bags could not be ascertained.

Furthermore, the affidavits explained that prolonged surveillance

was not advisable because, in general, it is often detected by the

targets of an investigation. 

As to the use of the grand jury, the affidavits explained

that such use would be largely ineffective because the true

identities or actual whereabouts of many of the targets of the

investigation remained unknown. Additionally, the affidavits

opined that if the principals of the conspiracy, their coconspirators, and other participants were called to testify before

the grand jury, they would likely be uncooperative and invoke their

Fifth Amendment right against self-incrimination. Furthermore, the

affidavits noted that granting immunity to individuals already

identified might insulate highly culpable members of the conspiracy

from prosecution, and premature use of the grand jury could alert

the members of the conspiracy to the investigation.

The Masiello affidavits explained in similar detail the

problems, both actual and potential, with the other six listed
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investigative techniques. Aware of these explanations, Martinez

claims that "[e]ven when they are specific to this investigation,

the problems recited are common to most, if not all, drug

investigations. The affidavits simply do not explain why this

investigation is different from the ordinary drug investigation and

thus warrants use of electronic surveillance while others do not."

In support of this argument, he cites the Tenth Circuit case of

United States v. Castillo-Garcia, 117 F.3d 1179 (10th Cir. 1997)

(overruled on other grounds by United States v. RamirezEncarnacion, 291 F.3d 1219, 1222 n.1 (10th Cir. 2002)). There, the

Tenth Circuit upheld a district court's decision to suppress

evidence obtained from a number of wiretaps because the supporting

affidavits "simply failed to contain any evidence, other than

conclusory evidence that would apply to virtually all drug

conspiracy investigations, that 'normal investigative procedures'

-- particularly 'standard visual and aural surveillance' -- would

have been unlikely to succeed." Id. at 1195 (emphasis omitted).

The affidavits here do not simply reiterate "conclusory

evidence". They explain in detail how and why other normal

investigative techniques were either exhausted or not feasible.

Moreover, Martinez is misguided in his insistence that the

government can meet the Title III necessity requirement only by

showing that the particular investigation at issue is "different

from the ordinary drug investigation". There is no requirement
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that the government establish such a difference. Necessity is a

function of the specifics of the case, not its uniqueness. If a

seemingly "ordinary" drug investigation requires a Title III

wiretap, and the government establishes that necessity with the

particulars of a given investigation, no more is needed. The

ordinariness of the investigation does not preclude a finding of

necessity for the use of wiretaps to further the investigation. In

this instance, we are satisfied that the affidavits provided

sufficient detail to meet the "necessity" requirement of Title III.

ii. Broad investigative goals

Martinez also argues that "the government may not

manufacture necessity by defining its investigative goals so

broadly and so generally that a wiretap could be obtained in any

drug investigation." Specifically, he claims that "the government

clearly and intentionally defined the goals of the Martinez

investigation in such broad terms so as to insure that normal

techniques of investigation were incapable of achieving them."

In support of this position, Martinez cites the Ninth

Circuit case of United States v. Blackmon, 273 F.3d 1204 (9th Cir.

2001). Specifically, he quotes the Ninth Circuit's statement that

the:

generic nature [of the problems of police investigation]

does not dissipate simply because the government claims

a vast investigative purpose. Wiretaps themselves could

little achieve the investigative goals stated in the

government's application. The government may not cast
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its investigative net so far and so wide as to

manufacture necessity in all circumstances.

Id. at 1211. 

Blackmon is easily distinguishable. There, the wiretap

application for one defendant, Blackmon, was duplicated -- or to

use the court's phrase "carbon copied" -- from the wiretap

application of another defendant. As a result, there were material

omissions in the affidavits in support of the wiretap on Blackmon.

Moreover, the government did not target any individualized

investigation at Blackmon before applying for a wiretap. See id.

at 1208. Stripped of the language duplicated from the other

affidavit, the affidavit at issue in Blackmon only contained the

"lofty goals", leaving the court with no reason to believe the

government's proffer of necessity as to Blackmon. Here, in

contrast, the government conducted an extensive investigation of

Martinez before applying for a Title III wiretap, and described

that investigation in the affidavits.

More importantly, while Martinez has categorized the

goals of the investigation into his dealings as "impossibly broad

and unrealistic," the goals contained in the Masiello affidavits

are neither. In his first affidavit, Masiello identified the

following investigative objectives: (1) identifying all of the

individuals who were supplying Martinez with cocaine; (2)

identifying the manner in which the organization transported

cocaine; (3) identifying the manner in which payment was made to
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the sources of supply for the cocaine that was distributed by

Martinez; (4) identifying all of the locations where cocaine was

stored by the organization; and (5) identifying the manner in which

Martinez and his associates laundered and invested their drug

proceeds. These are all discrete and realistic goals for a

criminal drug investigation that has legitimately cast a wide net.

They are similar to goals that we have approved for wiretaps in

previous cases.

For example, in Villarman-Oviedo, we upheld a wiretap

where the goals of the investigation were to "uncover[] the full

scope of the potential crimes under investigation, as well as the

identities of those responsible" and to "obtain[] evidence of the

totality of offenses in which the targets of the investigation were

involved." 325 F.3d at 10. In United States v. Santana, 342 F.3d

60 (1st Cir. 2003), we upheld a wiretap that investigators asserted

"was necessary to uncover the full scope of the conspiracy,

including conclusive proof of identity[,] and information as to how

the drug sales were made." Id. at 66; see also United States v.

David, 940 F.2d 722 (1st Cir. 1991); United States v. Ashley, 876

F.2d 1069 (1st Cir. 1989); United States v. Abou-Saada, 785 F.2d 1

(1st Cir. 1986). As in those cases, the major goals of the

investigation at issue here were both legitimate and attainable.

The district court properly denied Defendant's motions to suppress.
"The first two prongs of the Olano [plain-error] test as to 3

Booker error are satisfied whenever defendant's Guidelines sentence

was imposed under a mandatory Guidelines system. There was 'error'

and it was 'plain' at least at the time of appellate

consideration." Antonakopoulos, 399 F.3d at 77. 

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III.

Finally, Martinez contends that his sentence should be

vacated and the case remanded for re-sentencing as a result of the

Supreme Court's Booker decision. Because he did not raise a claim

under either Apprendi v. New Jersey, 530 U.S. 466 (2000), or

Blakely v. Washington, 542 U.S. 296 (2004), and because he did not

challenge the constitutionality of the sentencing guidelines below,

his Booker claim is unpreserved. Hence, we review his claim for

plain error only. See United States v. Antonakopoulos, 399 F.3d

68, 80-81 (1st Cir. 2005). 

Under Antonakopoulos, the first two parts of plain error

review are satisfied when a defendant was sentenced under a

mandatory guidelines system. Id. at 77. But the defendant must 3

go on to show that there was prejudice. Id. at 80. That is, he

must show that there was a "reasonable probability" that his

sentence would have been more favorable to him under an advisory

guidelines system. Id. at 78-79. A defendant cannot satisfy this

burden by "the mere assertion that the court might have given the

defendant a more favorable sentence." Id. at 80.

Here, Martinez fails to demonstrate that there is a

reasonable probability of a more favorable outcome on remand. He
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cites only one concrete fact -- the district court's decision to

sentence him at the bottom of the applicable guideline range. We

have said repeatedly that reference to a district court's decision

to sentence a defendant at the bottom of the guideline range is not

enough. See, e.g., United States v. Sánchez-Berríos, 424 F.3d 65,

80 (1st Cir. 2005) (stating that the fact that defendant was

sentenced at the bottom of the guidelines range, “standing alone,

is manifestly insufficient to satisfy the third element of the

plain error test”); United States v. Guzmán, 419 F.3d 27, 33 (1st

Cir. 2005) ("The fact that the district court imposed a sentence at

the bottom of the guideline sentencing range, standing alone, does

not give rise to a reasonable probability that, under advisory

guidelines, it would have imposed a sentence lower than what the

guidelines prescribed."); accord United States v. Figuereo, 404

F.3d 537, 542 (1st Cir. 2005); United States v. Cacho-Bonilla, 404

F.3d 84, 95 (1st Cir. 2005); United States v. Serrano-Beauvaix, 400

F.3d 50, 55 (1st Cir. 2005).

For the remainder of his sentencing argument, Martinez

describes the types of claims he would have made to the district

court if an advisory guidelines system had been in place. These

claims take three forms: (1) specific arguments he would have made

attacking the way in which the guidelines were applied to him; (2)

arguments for a more lenient sentence in light of the goals of

sentencing; and (3) his good character.
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As to whether the sentencing judge properly applied the

guidelines, Martinez would have argued, for example, that: (1) the

conspiracy was not really hierarchical in nature so the supervisor

enhancement should not have been applied; (2) the quantity of

cocaine attributed to him, while permitted by the guidelines,

improperly included estimates by cooperating witnesses on

quantities not actually recovered; and (3) his record for a

Category II offender was minor. Martinez did not make any of these

available arguments at sentencing. They do not depend on the

advisory nature of the guidelines. He cannot make these arguments

now on appeal. See, e.g., United States v. Miranda-Santiago, 96

F.3d 517, 531 (1st Cir. 1996).

As for his second type of argument, Martinez would have

argued, for example, that a sentence of 30 years without parole for

drug offenses not related to death, bodily injury, or use of force

is too high to accomplish the goals of sentencing. This type of

generality does not provide the specific facts that might persuade

us that there is a "reasonable probability" that his sentence might

have been more favorable under advisory guidelines.

Antonakopoulos, 399 F.3d at 75.

Finally, Martinez asserts that, if his case were

remanded, he would inform the district court of the role he played

in obtaining the dismissal of charges against his girlfriend,

Claudia Sanchez. Martinez apparently contends that the assistance
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he rendered on behalf of his girlfriend is a "mitigating factor

[that] existed but was not available for consideration" pre-Booker.

Although the facts were different, the district court had similar

evidence in mitigation before it when it made its sentencing

decision. This additional fact does not establish a reasonable

probability of a different sentencing outcome. 

Affirmed.