NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-50393 Plaintiff-Appellee, D.C. No. 3:11-cr-00671-WQH-1 v. MICHAEL CAREY, AKA Garrocha, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding Argued and Submitted February 15, 2023 Pasadena, California Before: WALLACE, HURWITZ, and BADE, Circuit Judges. After Michael Carey was indicted for conspiracy to distribute cocaine, he moved to suppress evidence obtained by federal agents, claiming that the evidence was the fruit of a wiretap targeting a different drug-trafficking conspiracy (the “Escamilla conspiracy”). The district court denied the motion to suppress, and Carey pleaded guilty, reserving the right to challenge the district court’s order on appeal. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We vacated the suppression order and remanded for further proceedings because “[t]he record does not indicate what evidence was obtained before the agents knew or should have known they were listening to calls outside of the Escamilla conspiracy.” United States v. Carey, 836 F.3d 1092, 1098 (9th Cir. 2016). On remand, the district court held an evidentiary hearing and found that the critical wiretap evidence was obtained before agents knew or should have known that they were listening to calls outside the targeted conspiracy, and the district court denied the motion to suppress. We have jurisdiction under 28 U.S.C. § 1291 over Carey’s appeal from that ruling and affirm. 1. As a preliminary matter, we reject the government’s argument that the plea agreement waived some of the issues Carey now raises on appeal. The agreement reserved Carey’s right to “appeal the district court’s ruling . . . denying his motion to suppress the wiretap.” Each issue raised in this appeal attacks the denial of the suppression motion. 2. Regardless of the standard of review employed, the district court did not err in finding that there were “no interceptions on the T-14 line after any agent knew or should have known that the phone calls on the T-14 line could involve callers outside the scope of the Escamilla conspiracy.” Finding the testimony of the federal investigators “entirely consistent and credible,” the court credited their statements that the relevant intercepted calls involved the same activity expected from members 2 of the Escamilla conspiracy. The court also found credible the investigators’ testimony that a five-day gap between initiation of the T-14 wiretap and the first intercepted conversation was not unusual and that not all Escamilla conspirators discarded their phones every twenty days. And although the first call intercepted under the wiretap order was in English—which Ignacio Escamilla had not previously used when talking to a government informant—the investigators declared that all other calls intercepted thereafter were in Spanish. Because the intercepted calls discussed a similar drug-trafficking operation, the investigators reasonably believed they “had found a previously undiscovered aspect …
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