USA v. Mayel Perez-Valencia

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, STEPHEN S. TROTT and RICHARD R. CLIFTON) Accordingly, we remand for the limited purpose of findings of fact as required by these questions. This panel retains jurisdiction over any further appeals. REMAND to the District Court. Judge: SST Authoring. FILED AND ENTERED JUDGMENT. [8704938]

Case: 12-50063

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ID: 8704938

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff-Appellee,

No. 12-50063

v.

D.C. No.
2:11-cr-00442PA-2

MAYEL PEREZ-VALENCIA , AKA
Santos Irizarry Castillo, AKA
Miguel Martinez, AKA Miguel
Angel Martinez-Marquez, AKA
Miguelito, AKA Mayel Valencia
Perez,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued & Submitted
February 4, 2013—Pasadena, California
Filed July 16, 2013
Before: Diarmuid F. O’Scannlain, Stephen S. Trott,
and Richard R. Clifton, Circuit Judges.
Opinion by Judge Trott

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UNITED STATES V . PEREZ-VALENCIA
SUMMARY*

Criminal Law
The panel remanded a criminal case for the limited
purpose of full development of the factual record with respect
to the authority of an assistant San Bernardino County district
attorney as the person who applied for a state wiretap, and for
a second issue should it become ripe.
The panel held that the language “the principal
prosecuting attorney” found in 18 U.S.C. § 2516(2) can
include a state assistant district attorney who has been duly
designated to act in the absence of the district attorney, and
that compliance with § 2516(2) necessarily requires an
analysis of the applicable state wiretap statute, here California
Penal Code § 629.50.
The panel also held that “the” attorney designated to act
in the district attorney’s absence – as § 629.50 specifies –
must be acting in the district attorney’s absence not just as an
assistant district attorney designated with the limited
authority to apply for a wiretap order, but as an assistant
district attorney duly designated to act for all purposes as the
district attorney of the political subdivision.
Because the record is insufficient for the panel to
determine the precise nature of the assistant district attorney’s
authority at the time he applied for the disputed wiretap, the

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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panel remanded for development of the factual record as to
that authority.
The panel did not address the government’s argument that
the evidence subject to the defendant’s suppression motion
was so attenuated from the alleged statutory violation that it
need not be excluded, an issue that will only become ripe if
the district court invalidates the wiretap on the ground that
the assistant district attorney lacked authority to apply for it.
The panel stated that it retains jurisdiction over any
further appeals.

COUNSEL
Carlton F. Gunn, Kaye, McLane, Bednarski & Litt, LLP,
Pasadena, California, for Defendant-Appellant.
Jennie L. Wang, Assistant United States Attorney, United
States Department of Justice, Violent and Organized Crime
Section, Los Angeles, California, for Plaintiff-Appellee.

OPINION
TROTT, Circuit Judge:
Mayel Perez-Valencia appeals his conviction following a
conditional plea of guilty to conspiracy to distribute
methamphetamine, in violation of 21 U.S.C. § 846. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we remand for
the limited purpose of full development of the factual record
with respect to the authority of Assistant District Attorney

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UNITED STATES V . PEREZ-VALENCIA

Dennis Christy (“ADA Christy”) as the person who applied
for the state wiretap at issue, and for a second issue should it
become ripe.
I
Perez-Valencia entered his plea after the district court
denied his motion to suppress evidence obtained as a result of
a wiretap authorized by the San Bernardino County Superior
Court on March 30, 2010. The application was filed by ADA
Christy, who was purportedly “designated” pursuant to
California Penal Code § 629.50(a) by the county district
attorney to apply for the wiretap in the district attorney’s
absence. Perez-Valencia argues that the wiretap application
was invalid because 18 U.S.C. § 2516(2) allows only “the
principal prosecuting attorney” of a political subdivision —
here, the official district attorney of San Bernardino County
— to apply to a state court for a wiretap.
II
District Attorney Michael Ramos (“DA Ramos”) was out
of his office from March 29 to March 31, 2010, attending to
an ill family member who had just undergone surgery for a
serious health condition. The previous year, DA Ramos had
issued an internal memorandum, which stated:
I, Michael A. Ramos, District Attorney of San
Bernardino County, pursuant to [California]
Penal Code section 629.50(a) hereby
designate the following individuals to act in
my absence.

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1. Dennis Christy, Assistant District
Attorney
2. James B. Hackleman,
District Attorney

Assistant

3. Clark Hansen III, Chief Deputy
District Attorney.
(emphasis added). Therefore, when the need arose on March
30, 2010, ADA Christy applied to the San Bernardino County
Superior Court for the wiretap.
In the wiretap application, ADA Christy stated that
“Michael Ramos is the District Attorney of San Bernardino
County, and I am the person designated to act in his absence
pursuant to Penal Code section 629.50.” As noted, however,
Christy was not the only person so designated, but one of
three persons on the list. The San Bernardino County
Superior Court approved the application the same day it was
filed.
The wiretap produced evidence that Perez-Valencia,
known at that time only as “Miguel,” was involved in the
methamphetamine organization. Multiple other wiretaps,
searches and seizures, and a confidential informant later,
Perez-Valencia and 29 other conspirators were indicted.
III
Wiretaps issued by state courts are regulated by 18 U.S.C.
§ 2516(2):

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The principal prosecuting attorney of any
State, or the principal prosecuting attorney of
any political subdivision thereof, if such
attorney is authorized by a statute of that
State to make application to a State court
judge . . . may apply to such judge for . . . an
order authorizing, or approving the
interception of wire, oral, or electronic
communications . . . .

18 U.S.C. § 2516(2) (emphasis added). California Penal
Code § 629.50 is the California statute that authorizes wiretap
applications within the State. At the county level, the statute
states that “a district attorney, or the person designated to act
as district attorney in the district attorney’s absence,” may
apply to a superior court “for an order authorizing the
interception of a wire or electronic communication.” Id.
§ 629.50(a) (emphasis added).
IV
The primary contention raised by Perez-Valencia is that
the language “the principal prosecuting attorney” found in
§ 2516(2) cannot and should not be read to include a state
assistant district attorney, whether or not that assistant has
been duly designated to act in the absence of the district
attorney. We disagree. As noted, § 2516(2) also says with
respect to the language Perez-Valencia highlights, “if such
attorney is authorized by a statute of that State to make
application to a State court judge . . . for an order authorizing
or approving the interception of wire, oral, or electronic
communications.” Thus, we agree with the government that
compliance with § 2516(2) necessarily requires an analysis of
the applicable state wiretap statute, here California Penal

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Code § 629.50. That statute in turn plainly authorizes “the
person designated to act as district attorney in the district
attorney’s absence” to apply for such an order.
In this respect, we agree with our colleagues in the
Second Circuit:
Congress simply could not have intended that
local wiretap activity would be completely
suspended during the absence or disability of
the official specifically named (in § 2516(2)).
This conclusion is supported by the legislative
history. The Senate Report states that “the
issue of delegation (by the Attorney General
or District Attorney) would be a question of
state law.” S. Rep. No. 1097, 90th Cong. 2d
Sess. (1968).
United States v. Fury, 554 F.2d 522, 527 n.4 (2nd Cir. 1977)
(internal quotation marks & first citation omitted).
We hold also, however, that “the” attorney designated to
act in the district attorney’s absence — as § 629.50 specifies
— must be acting in the district attorney’s absence not just as
an assistant district attorney designated with the limited
authority to apply for a wiretap order, but as an assistant
district attorney duly designated to act for all purposes as the
district attorney of the political subdivision in question.
V
The record as it now stands, however, is insufficient for
us to determine the precise nature of ADA Christy’s authority
at the time he applied for the disputed wiretap. Because of

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ambiguity in DA Ramos’s designation memo, we require
answers to the following questions.1 In DA Ramos’s absence,
was ADA Christy duly acting for all purposes as the
“principal prosecuting attorney” of San Bernardino County?
18 U.S.C § 2516(2); Cal. Penal Code § 629.50. Specifically,
did ADA Christy have all the powers of an acting district
attorney or did he merely possess the limited authority to
apply for state wiretaps? What was DA Ramos’s purpose in
designating three people to act in his absence? Did the memo
give all three of the listed individuals simultaneously the
power to apply for wiretaps in the district attorney’s absence?
Or was it a progressive, hierarchical designation of power,
meaning that, at any given time, only one person on the list
could exercise the powers of district attorney and the others
did not have any powers unless those above them in the
hierarchy were absent and unavailable?
VI
We do not address the government’s argument that the
evidence subject to the defendant’s motion to suppress is so
attenuated from the alleged statutory violation that it need not
be excluded. See United States v. Smith, 155 F.3d 1051, 1060
(9th Cir. 1998) (“[A]t some point, even in the event of a direct
and unbroken causal chain, the relationship between the
unlawful search or seizure and the challenged evidence
1

O rdinarily, we would remand for answers to these questions before
holding that an assistant district attorney to whom plenary power had been
properly delegated could lawfully apply for a wiretap order. Here,
however, judicial economy dictates that we do so now to avoid asking the
district court to answer questions and to make a decision without any
assurance that the district court’s work would be relevant to the outcome
of this case on appeal. Also, our chosen sequence may well avoid the
need for a decision on the issue of attenuation. See infra Part VI.

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becomes sufficiently weak to dissipate any taint resulting
from the original illegality.”). This second issue will only
become ripe if the district court invalidates the wiretap on the
ground that ADA Christy lacked the authority to apply for it.
Should the court so decide, however, then the court shall
address the government’s attenuation argument as part of this
limited remand.
Accordingly, we remand for the limited purpose of
findings of fact as required by these questions. This panel
retains jurisdiction over any further appeals.
REMAND to the District Court.