* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

1 Richard Knudsen also brought a related appeal. Ho wever, his appeal is rendered moot by his death. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 18 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. AMBER SJON JUDD; SHAUNA JENSEN; CHARLES MIRELEZ, also known as Chico; and JEFFREY JOHNSON, also known as Free,

Defendants - Appellants. Nos. 00-4093, 00-4119, 00-4120 & 00-4121 (D. Ct. Nos. 99-CR-23-11-B, 99-CR-23-03-B, 99-CR-23-05-B & 99-CR-23-17-B) (D. Utah)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, BALDOCK , and HENRY , Circuit Judges.

Defendants Charles Mirelez, Jeffrey Johnson, ShaunaJensen, and Amber Sjon Judd appeal their convictions for various offe nses arising out of a methamphetamine conspiracy. 1 We exercise jurisdiction pursuant to 18 U.S.C. § 1291, and AFFIRM in part and VACATE and REMAND in p art.- 2 - I. Background In January of 1998, Detective Dale Bench was workin g with FBI Special Agent Scott Montefusco in an undercover capacity fo r a narcotics task force initiated by the FBI. On January 29, Charles Mirel ez approached Bench. Claiming to be a member of the Sundowners motorcycl e club, Mirelez offered to sell Bench methamphetamine. After conducting surve illance of the Sundowners’ clubhouse, Montefusco confirmed that Mirelez was as sociated with the group and directed Bench to purchase the methamphetamine. After this initial purchase, law enforcement office rs initiated a full-scale investigation of the Sundowners Club. They placed pen registers and trap and trace devices on the clubhouse phone, logging 8500 phone calls from February to July of 1998. Bench made several additional purcha ses of methamphetamine from Mirelez. On July 28, 1998, a court granted Montefusco’s requ est for a warrant to wiretap the clubhouse phone for 30 days. The courtlater granted two 30-day extensions for the wiretap. It also approved a wir etap for the telephone of Travis Suazo, a suspected source of methamphetamine to the Sundowners. Finally, the court allowed officers to secrete a hidden micropho ne in an electronic gambling machine that Bench introduced to the clubhouse. Later, Richard Knudsen, the clubhouse leader, agree d to sell Bench- 3 -

methamphetamine. Knudsen never produced the drugs for Bench. He told Bench that he had lost the money when the location from w hich he was purchasing the drugs was raided by the FBI. He also informed Benc h that the gambling machine had suffered losses of $2300, and that he expected to be reimbursed. As a result of the negotiations that ensued, the parties agreed to the sale of an additional two ounces of methamphetamine. The clubhouse microphon e then revealed that members of the Sundowners Club were considering ass aulting Bench and taking his money. The active portion of the investigation then terminated, having collected 683 pertinent telephone calls and 53 pert inent microphone calls. These calls led to the identification and arrest of defen dants Jeffrey Johnson and Shauna
Jensen. On January 28, 1999, FBI agents executed a warrant to search the clubhouse. Over the course of the next few days, t he various defendants were arrested on warrants based upon a Grand Jury Indictment. Judd pleaded guilty. Knudsen was tried jointly with Mirelez, Johnson, Je nsen, and Michael Steward. Johnson and Mirelez moved to sever their trials, but their motions were denied. All appellants were convicted on a variety of offen ses arising from the Sundowners conspiracy. Mirelez was sentenced to 18 8 months in prison, 5 years of supervised release, and special assessments of $ 1600. Johnson was sentenced to 24 months in prison followed by 5 years of supervised release. Judd was- 4 -

sentenced to 36 months in prison and a 3-year term of supervised release. Jensen was sentenced to 39 months’ imprisonment, 3 years o f supervised release, and a special assessment of $1000. II. Discussion The four defendants have raised several different i ssues on appeal. One or more defendants challenge: (a) convictions related to distribution of ephedrine; (b) the necessity of the wiretaps; (c) alleged omis sions to the wiretap affidavits; (d) the denial of a motion to supplement the record ; (e) improper joinder; (f) admission of prejudicial evidence; (g) sufficiency of the evidence; and (h) sentencing error. The government properly concedes error on the first issue. We affirm the ruling of the district court on the rema ining six issues. A. Distribution of Ephedrine Mirelez moved for a judgment of acquittal on Counts 19 and 20. Count 19 consisted of conspiracy to distribute a controlled substance, while Count 20 consisted of unlawful use of a telephone to facilit ate the distribution of that substance. The substance related to Counts 19 and 20 in the instant case was ephedrine, a precursor to methamphetamine. The tri al court then extrapolated the amount of methamphetamine that could be yielded forpurposes of sentencing. Mirelez argues that 21 U.S.C. § 812 lists controlle d substances, and does not list ephedrine. Rather, ephedrine is a “listed” substan ce under 21 U.S.C. §- 5 -

802(34)(C). On appeal, the government concedes that the trial court erred in denying Mirelez’s motion for judgment of acquittal. We therefore vacate the convictions on these counts and remand for resenten cing. B. The Necessity of the Wiretap All four defendants challenge the admission of the wiretap evidence, arguing that the warrant was invalid because the go vernment failed to demonstrate a necessity to conduct electronic surve illance. This circuit has conflicting authority as to whether a trial judge’s determination on the necessity of a wiretap is reviewed de novo or for an abuse of discretion. Compare United States v. Castillo-Garcia , 117 F.3d 1179, 1186 (10th Cir. 1997) (“The questi on of whether the government demonstrated sufficient “nec essity” . . . to support the issuance of a wiretapping order is a question of law which we review de novo.”), withUnited States v. Armendariz , 922 F.2d 602, 608 (10th Cir. 1990) (“[W]e review the conclusion that the wiretap[ ] [was] nec essary in each situation for an abuse of discretion.”). Because the government de monstrated a sufficient showing of necessity to meet either standard, we ne ed not reconcile this conflict in this case. Defendants bear the burden of proving that a wiretap is invalid once it has been authorized. United States v. Quintana , 70 F.3d 1167, 1169 (10th Cir. 1995). Before a court may validly issue a wiretap warrant, the government must- 6 -

demonstrate its necessity by showing that tradition al investigative techniques have been tried unsuccessfully, are unlikely to be successful, or are too dangerous to attempt. 18 U.S.C. §§ 2518(1)(c), 2518(3)(c). T raditional techniques include standard visual and aural surveillance, questioning and interrogation of witnesses or participants (including the use of grand juries and the grant of immunity if necessary), use of search warrants, and infiltratio n of groups by undercover agents or informants. If any of these techniques h as not been tried, the government must explain why with particularity. Ca stillo-Garcia , 117 F.3d at 1187. If other techniques such as pen registers ortrap and trace devices have not been tried, a similar explanation must be offered. Id. We evaluate necessity on a case-by-case basis, considering “all the facts and circumstances in order to determine whether the government’s showing of neces sity is sufficient to justify a wiretap.” Id. at 1187. We read the necessity requirement “in a common sense fashion . . . , and it is not necessary that every other possible means of investigation be exhausted.” United States v. Nune z , 877 F.2d 1470, 1472 (10th Cir. 1989). A successful challenge to the necessity of a wiretap results in the suppression of evidence seized pursuant to that wir etap. United States v. Green , 175 F.3d 822, 828 (10th Cir. 1999). It is undisputed that a variety of investigative te chniques were used, including informants, undercover officers, surveill ance, pen registers, and trace- 7 -

devices. Bench successfully penetrated the clubhou se, and pen registers sometimes revealed whom Mirelez was calling to obta in the drugs. Officers used this information to conduct surveillance on the hou ses he contacted. Bench also spoke with a number of club members regarding drug transactions. While these traditional techniques produced results , the affidavits submitted demonstrated that they were insufficient results. The affidavits reveal that the identity of several people connected to th e clubhouse still remained hidden after these conversations. While Bench was reasonably successful in his undercover role, a large amount of information as t o the identities of buyers and suppliers remained unknown. Club members made clear that much of this information was secret. While Bench might have bee n able to become a member of the group, the affidavits indicate that this mig ht have required him to commit illegal acts as part of his membership. Physical surveillance brought about the same mixed results. Surveillance is not successful simply because it is not detected. Although surveillance was used successfully to identify some persons responsible f or delivering drugs, most business was conducted within the clubhouse, where surveillance was, at best, difficult. Moreover, surveillance does not easily distinguish between innocent encounters and those that involve a drug transactio n, absent clues about the content of conversations leading up to the encounte rs. Finally, conducting- 8 -

surveillance outside of the clubhouse was difficultwithout electronic surveillance that revealed the location of the transaction and t he type of meeting that would take place. While this information could sometimes be inferred from a pen register, at other times it could not. The government also used three confidential sources . These sources provided useful information, such as evidence that Catherine Masterson supplied drugs to Mirelez. However, none of the sources hadcurrent contact or involvement with the club. Their information was o f a background nature only. Nothing indicates that confidential sources existedwho had not been approached. The record indicates that confidential sources were of limited use in these investigations. The other techniques used were also insufficient to expose the conspiracy thoroughly. As noted above, pen registers and call tracing were sometimes useful, but were unsuccessful in thoroughly explori ng the conspiracy. Executing search warrants would likely have been counterprodu ctive because drugs were rarely kept at the clubhouse. The affidavit indicates that a grand jury investigation would have been futile, since many me mbers of the club would have refused to testify, even under a grant of immunity. The wiretapping statute “does not mandate the indis criminate pursuit to the bitter end of every non-electronic device as to eve ry telephone and principal in- 9 -

question to a point where the investigation becomes redundant or impractical or the subjects may be alerted and the entire investig ation aborted by unreasonable insistence upon forlorn hope.” United States v. Be nnett , 219 F.3d 1117, 1122 (9th Cir. 2000) (citing United States v. Baker , 589 F.2d 1008, 1013 (9th Cir. 1979)). Rather, it simply requires that the govern ment unsuccessfully attempt traditional means of investigation before resorting to wiretapping. Here, the government used traditional means, and was left wit h many important questions unanswered. The government thus made a sufficient showing of necessity. Plaintiffs have not overcome the presumed validity of the wiretap authorization. We therefore hold that the district court correctly found that a wiretap authorization was necessary under these circumstanc es. C. Affidavit Omissions Judd argues that the lower court improperly refusedto hold an evidentiary hearing on her allegations that Agent Montefusco intentionally or recklessly made material omissions in the affidavits for the wiretaps. If substantiated, this would constitute reversible error under Franks v. Delawar e , 438 U.S. 154 (1978). However, she raises this argument only in footnotes 2 and 5 of her brief. Arguments made in a perfunctory manner, such as in a footnote, are waived. Norton v. Sam’s Club , 145 F.3d 114, 117 (2d Cir. 1998) (“[A]n argument made only in a footnote [is] inadequately raised for app ellate review.”); Nat’l Foreign- 10 -

Trade Council v. Natsios , 181 F.3d 38, 60 n.17 (1st Cir. 1999) (“We have repeatedly held that arguments raised only in a foo tnote or in a perfunctory manner are waived.”). Judd therefore waived this argument on appeal, and we do not address it. D. Motion to Supplement the Record The district court denied Mirelez’s motion to suppl ement the record on his motion to suppress evidence. It is unclear from th e briefs whether Mirelez’s complaint is with the district court’s refusal to s upplement the record on appeal or in the district court. We review either question f or an abuse of discretion. United States v. Oliver , 278 F.3d 1035, 1042 (10th Cir. 2001) (refusal to supplement the record on appeal is evaluated under an abuse of dis cretion standard); Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc. , 131 F.3d 874, 894 (10th Cir. 1997) (refusal to admit evidence at the summary jud gment phase evaluated for an abuse of discretion). Mirelez sought to supplement the record with eviden ce demonstrating a lack of necessity for the wiretaps. This evidence consisted of video surveillance of the clubhouse, a discussion of a controlled purc hase, two indictments, physical surveillance logs, evidence regarding the identity of Catherine Masterson, and the use of a body microphone by Bench. Given the 22 vo lumes of record evidence on appeal, and the strong showing of necessity made bythe government, we find that- 11 -

the district court did not abuse its discretion. E. Improper Joinder/Refusal to Sever Johnson appeals the trial court’s denial of his mot ion to sever his trial from Knudsen’s. We review a decision to deny a severanc e for an abuse of discretion, and the trial court’s decision “will not ordinarilybe reversed in the absence of a strong showing of prejudice.” United States v. Val entine , 706 F.2d 282, 289-90 (10th Cir. 1983). The defendant must demonstrate t hat the alleged prejudice outweighed the expense and inconvenience of separat e trials. United States v. Martin , 18 F.3d 1515, 1518 (10th Cir. 1994). The Federal Rules of Criminal Procedure provide that “[i]f it appears that a defendant . . . is prejudiced by a joinder of offen ses . . . the court may order an election or separate trials of counts, grant a seve rance of defendants or provide whatever other relief justice requires.” Fed. R. C rim. P. 14. “Neither a mere allegation that defendant would have a better chanc e of acquittal in a separate trial, nor a complaint of the ‘spillover effect’ . . . is sufficient to warrant severance.” United States v. Powell , 982 F.2d 1422, 1432 (10th Cir. 1992) (citation omitted). The defendant thus carries a h eavy burden. Valentine , 706 F.2d at 290. Here, Johnson has not met the burden of showing suf ficient prejudice to warrant severance. Johnson argues that because he was no longer a member of- 12 -

the Sundowners Club it was unfairly prejudicial to him to try him in a setting where a great deal of evidence was offered on the n ature of the Sundowners Club. Additionally, Johnson argues that sequestering the jury prejudiced his trial by raising questions in the jurors’ minds about the po tential dangerousness of the defendants. Johnson’s entire argument for severanc e hinges upon the “spillover effect” – that is, that circumstances uniquely rele vant to the trials of members of the Sundowners would influence jurors’ decisions ab out his guilt or innocence. As noted above, that is insufficient to warrant sev erance. The district court tried to avoid spillover, explaining that the sequestrati on was to avoid publicity, and not because of any potential danger arising from a trial of a motorcycle gang. The district court did not abuse its discretion by refu sing to sever the trials. F. Admission of Prejudicial Evidence Mirelez and Johnson argue that their trials were un fair due to the admission of prejudicial evidence regarding the Sundowners gang. We review a trial judge’s decision to admit evidence for an abuse of discreti on. Oliver , 278 F.3d at 1042. Evidence must be relevant to be admissible. Fed. R . Evid. 402. A trial judge may refuse to admit relevant evidence if it i s more prejudicial than probative. Fed. R. Evid. 403. “Evidence of a pers on’s character or a trait of character is not admissible for the purpose of prov ing action in conformity therewith on a particular occasion.” Fed. R. Evid. 404(a).- 13 -

Defendants object to the admission of, among other things: a videotape of the Sundowner’s clubhouse showing firearms on the p remises; a metal plaque in the shape of a saw blade that said “Sundowners MC N ew Year’s Bash”; a patch with the word “property” indicating that each membe r is property of the club; a sign stating “what you think you might have seen orheard here stays here”; three photos of Sundowners members, dressed in leather, at a pool table; six photos of tattoos worn by members of the club; and testimony that “FTW” on Knudsen’s patch meant “f**k the world.” Defendants contend that the challenged evidence was not probative, but simply reinforced stereotypes about bikers. They n ote that only five active members of Sundowners were actually charged in the conspiracy. However, Count 1 against Richard Knudsen — the Continuing Cr iminal Enterprise count — was based almost entirely upon his position as headof the Sundowners gang. Evidence regarding the club culture was therefore r elevant to the trial. There is no indication that the evidence was admitted in ord er to impugn the defendant’s character. There is no indication that the jurors would be influenced by this evidence, especially considering that voir dire con centrated in large part on eliminating those jurors who expressed prejudice to ward motorcycle clubs. The trial judge did not abuse her discretion by admitti ng this evidence. See United States v. Robinson , 978 F.2d 1554, 1563 (10th Cir. 1992) (holding that gang- 14 -

membership “helped to establish an agreement among the subjects, the purpose of the conspiracy and knowledge on the part of these d efendants”). G. Sufficiency of the Evidence Mirelez and Johnson each challenge the sufficiency of the evidence supporting one count of their respective conviction s. We review a challenge to the sufficiency of the evidence de novo, drawing al l reasonable inferences in the light most favorable to the government, and limitin g our inquiry to determining whether any rational trier of fact could have found the elements of the crime proved beyond a reasonable doubt. Jackson v. Virgi nia , 443 U.S. 307, 319 (1979). 1. Mirelez Mirelez argues that the government failed to provid e sufficient evidence to support a conviction for conspiracy with regard to Count 47. A conviction for conspiracy requires “(1) an agreement with another person to violate the law, (2) knowledge of the essential objectives of the conspi racy, (3) knowing and voluntary involvement, and (4) interdependence of t he alleged conspirators.” United States v. Carter , 130 F.3d 1432, 1439 (10th Cir. 1997). Mirelez argues that he intended to defraud Bench by taking his money and never delivering drugs. Mirelez therefore argues t hat there was never an agreement to commit an illegal act. However, the e vidence presented in the- 15 -

record is consistent with Knudsen and Mirelez consp iring to sell Bench a substance that contained methamphetamine, but in a greatly diluted form. There is sufficient evidence for the jury to make such an in ference. We find ample evidence from which a jury could reasonably infer t hat Mirelez conspired to violate the law. 2. Johnson Johnson challenges Count 57 of the indictment, whic h involved a conspiracy among Michael Steward, Robert Dale, Wayn e Davis, and Knudsen. Johnson also challenges the underlying Counts 58 an d 61, use of a telephone to facilitate a conspiracy. Johnson delivered one-sixteenth of an ounce of meth amphetamine. He argues that this amount is inconsistent with distri bution, and that he therefore lacks the requisite intent necessary for a conspira cy to distribute. Nonetheless, the record indicates that Dale made clear to Johnso n that he wished to purchase a larger amount, which would have been consistent with distribution. Thus, sufficient evidence exists from which a rational ju ry could have inferred that Johnson was guilty of conspiracy to distribute. H. Sentencing Johnson challenges the propriety of his sentencing. We review a sentencing court’s factual findings for clear error , and its application of the law to- 16 -

the facts de novo. United States v. Perez de Dios , 237 F.3d 1192, 1195 (10th Cir. 2001). Johnson argues that his sentencing was improper bec ause the sentencing court could not have determined that the drug he in tended to sell was crystal methamphetamine rather than less pure “ice” methamp hetamine. Wiretap evidence gathered from the clubhouse reveals that J ohnson had offered Robert Dale methamphetamine of “excellent” quality. Durin g a phone conversation with Dale, Knudsen referred to the drug transaction stat ing, “You don’t know whether he had crystal or not.” Dale replied, “Yeah, he doe s.” Given the above evidence, we cannot say the court c ommitted clear error in concluding that Johnson had sold crystal methamphet amine. III. Conclusion For the forgoing reasons, we AFFIRM in part, VACATE in part, and REMAND in part for resentencing not inconsistent wi th this opinion. ENTERED FOR THE COURT,

Deanell Reece Tacha Chief Circuit Judge