Court of Appeals of Arizona, First Division, Department E
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2010-006493-015 The Honorable Janet E. Barton, Judge
Thomas C. Horne, Arizona Attorney General., By Joseph T. Maziarz, Chief Counsel, Criminal Appeals And Craig W. Soland, Assistant Attorney General Attorneys for Appellee
Law Offices of Janelle A. McEachern, L.L.C., By Janelle A. McEachern Attorney for Appellant
PATRICIA K. NORRIS, Presiding Judge
¶1 Fernando Torres-Aguirre appeals his convictions and sentences for conspiracy to commit drug offenses, illegally conducting an enterprise, and use of a wire or electronic communication in a drug-related transaction. The key evidence at trial consisted of several telephone calls taped as part of a wiretap investigation and interpreted by a detective, and the testimony of cooperating witness Julian Gerardo Palacios-Trillo, the target of the wiretap and a key member of the Mexico-based Quintero Drug Trafficking Organization ("Quintero").
¶2 On appeal, Torres-Aguirre challenges various evidentiary and other rulings of the superior court, arguing the court: first, should have suppressed evidence from the State's wiretap investigation; second, should have declared a mistrial and granted a new trial based on the State's late disclosure of the immigration status of Palacios-Trillo and his son; third, violated his confrontation rights by admitting statements involving non-testifying witnesses; fourth, should have granted a new trial because a detective testified at trial that Torres-Aguirre was a drug dealer; and fifth, should have granted his motion for a judgment of acquittal because insufficient evidence supported the guilty verdicts. Additionally, Torres-Aguirre argues the evidence failed to support the jury's guilty verdicts. For the reasons discussed below, we disagree with these arguments and affirm Torres-Aguirre's convictions and sentences.
I. Wiretap Evidence
¶3 Relying on Arizona Revised Statute ("A.R.S.") section 13-3010 (2010), Torres-Aguirre argues the superior court should have suppressed the wiretap evidence because the affidavit submitted by law enforcement officers in support of the wiretap did not show the requisite necessity ("necessity requirement"). Specifically, Torres-Aguirre argues the officers failed to show they could not have utilized other investigative techniques, such as, installing a pole camera or using Palacios-Trillo as a confidential informant to investigate Quintero. We disagree. The affidavit submitted by the officers in support of their request for the wiretap set forth sufficient facts to meet the necessity requirement and, therefore, the superior court did not abuse its discretion in admitting the wiretap evidence. State v. Peterson, 228 Ariz. 405, 407, ¶ 6, 267 P.3d 1197, 1199 (App. 2011) (appellate court reviews denial of motion to suppress for abuse of discretion).
¶4 First, the affidavit explained in detail that law enforcement had used numerous traditional investigative techniques, including, an analysis of phone numbers called, surveillance, Global Positioning System ("GPS") tracking, informants, an undercover investigation, and search warrants. Law enforcement, nevertheless, had been unable to obtain sufficient information that could be used to dismantle Quintero, such as what the co-conspirators had discussed, the location of the drugs, the distribution networks, and the extent of the conspiracy.
¶5 Second, the affidavit explained many of the methods law enforcement had employed or might be available were too dangerous to use to investigate Quintero -- an organization known for its sophistication and "extreme violence." For instance, the phone records had only documented calls, had not identified people, and were often inaccurate because Quintero members frequently changed phones and telephone numbers. Further, Quintero had frustrated surveillance and GPS tracking efforts through counter-surveillance, causing Quintero members to discard drug proceeds. Also, Quintero had killed key informants or they had stopped cooperating and no source had been willing to testify against Quintero or introduce undercover agents into it. Moreover, police execution of search warrants could expose the investigation and had a limited value in identifying Quintero members, many of whom lived and operated in Mexico.
¶6 The affidavit also specifically rejected the two alternative procedures Torres-Aguirre argues law enforcement should have pursued: a pole camera directed at Palacios-Trillo's residence and accepting Palacios-Trillo's repeated offers to act as a confidential informant. The affidavit explained a pole camera would not be effective because Palacios-Trillo lived in "a large apartment complex, " which made it "virtually impossible to differentiate co-conspirators from residents, " "[n]one of the surveillance conducted on Palacios-Trillo up to this point [had] suggested that he [was] meeting any co-conspirators at this location, " and pole cameras could not record conversations or provide necessary evidence for prosecution.
¶7 The affidavit further explained that although Palacios-Trillo had been a confidential source for the federal Drug Enforcement Agency ("DEA") in the past, DEA had "deactivated" him as an informant and rebuffed his attempts to resume this role because he: had admitted "his allegiance to  Quintero  was stronger than his desire to cooperate with law enforcement"; become unwilling to provide additional information on Quintero; discussed the government's investigation with the head of Quintero; and "severely compromised the investigation."
¶8 In light of the foregoing, Torres-Aguirre's reliance on United States v. Gonzalez, Inc., 412 F.3d 1102 (9th Cir. 2005) is misplaced. Unlike Gonzales, where police had conducted only a limited investigation before applying for a wiretap, here, the affidavit detailed the extensive efforts by law enforcement to investigate Quintero. Therefore, on this record, the superior court did not abuse its discretion in finding law enforcement had shown the ...