source: Caselaw Access Project

author: FRIEDMAN, District Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert RODRIGUEZ, Defendant-Appellant.
    No. 15-50096
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 9, 2016, Pasadena, California
    Filed March 14, 2017

      Jack J. Boltax, Law Office of Jack J. Boltax, San Diego, California; Leif Harrison Eleven, Law Office of Leif Eleven, San Diego, California; for Defendant-Appellant.
    Mark R. Rehe, Assistant United States Attorney; Laura E. Duffy, United States Attorney; Peter Eo, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; United States Attorney’s Office, San Diego, California; for Plaintiff-Appellee.
    Before: A. WALLACE TASHIMA and RICHARD A. PAEZ, Circuit Judges, and PAUL L. FRIEDMAN, District Judge.

       The Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation.

   OPINION

FRIEDMAN, District Judge:

Robert Rodriguez appeals from his conviction after a jury trial on three drug-related charges: (1) conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846; (2) conspiracy to import methamphetamine, in violation of 21 U.S.C. § 952; and (3) distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and his sentence of 600 months in prison, followed by a lifetime of supervised release. He argues that the district court erred because it applied the incorrect standard of review when deciding his motion to suppress and that the government’s wiretap application did not include a full and complete statement of facts as required by 18 U.S.C. § 2518(1)(c). Rodriguez also argues that the district court erred when it (1) enhanced Rodriguez’s sentence under 21 U.S.C. § 851 after finding three prior convictions, (2) applied an organizer/leader upward adjustment under United States Sentencing Guidelines (U.S.S.G.) § 3B1.1, and (3) denied a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. He also maintains that his sentence of 600 months is substantively unreasonable.

We have jurisdiction under 28 U.S.C. § 1291; we affirm Rodriguez’s conviction, vacate his sentence, and remand for resen-tencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from an investigation in North San Diego County called “Operation Corridor,” in which state and federal officers jointly investigated extortion and drug trafficking by local street gangs and the Mexican Mafia, the largest prison gang in the United States. The Mexican Mafia is a violent organization that requires street gangs to pay “taxes” in the form of cash, drugs, or other property. If a gang pays the “tax,” the Mexican Mafia will allow that gang to operate in and sell drugs in their neighborhoods. Those who do not pay taxes experience robbery and violence at the hands of Mexican Mafia members and its associates.

Rodriguez is a self-identified member of the Tri-City Thunder Hills Gang, which law enforcement officers believed was closely associated with and “answered to” the Mexican Mafia. Rodriguez also led a conspiracy involving the importation of methamphetamine from Mexico and its distribution in San Diego County and in South Carolina. Rodriguez’s associates included, among others, his wife Carrie Brown-Rodriguez and his codefendant at trial, Travis Job. Rodriguez hired Job to “cut” methamphetamine, a process by which another product is added to pure methamphetamine to increase its weight and thus increase the quantity available for resale.

Seeking to gain more information about Rodriguez’s operation and his association with the Mexican Mafia, law enforcement officers applied'for authorization to wiretap Rodriguez’s phone, along with the phones of three other individuals suspected of working with the Mexican Mafia or distributing drugs. Officer John McKean submitted a 43-page affidavit in support of his application for electronic surveillance. Law enforcement officers later submitted a second wiretap application, requesting wiretaps for two phone numbers listed to Carrie Brown-Rodriguez and used by Rodriguez. Officer McKean submitted a 40-page affidavit in support of the second application. The district court authorized both wiretaps. At the time the government applied'for these wiretaps, Rodriguez was subject to a Fourth Amendment search waiver as a condition of parole in an unrelated cáse. This fact was not included in either affidavit. The record does not contain the exact language of Rodriguez’s Fourth Amendment search waiver.

A grand jury indicted Rodriguez on three counts: (1) conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846; (2) conspiracy to import methamphetamine, in violation of 21 U.S.C. § 952; and (3) distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Before trial, the government filed an information pursuant to 21 U.S.C. § 851 seeking enhanced penalties, including a 20-year mandatory minimum, because Rodriguez committed the offenses for which he was indicted after three prior felony convictions. Rodriguez filed a motion to suppress the wiretap evidence, which the district court denied following a suppression hearing. A jury convicted Rodriguez on all counts.

At sentencing, the district court calculated Rodriguez’s guidelines sentencing range by applying a two-level increase to Rodriguez’s base offense level for the importation of methamphetamine under U.S.S.G. § 2D1.1(b)(5), which Rodriguez does not contest, and a four-level upward adjustment based on the conclusion that he was the manager, leader, or recruiter of a criminal activity under U.S.S.G. § 3B1.1(a). The district court denied Rodriguez’s request for a two-level downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. The court also concluded that Rodriguez was subject to a 20-year mandatory minimum under 21 U.S.C. § 851. After calculating a guidelines sentencing range of 360 months to life, the district court sentenced Rodriguez to 600 months in prison and supervised release for life.

II. WIRETAP AFFIDAVIT ISSUES

A. Standard of Review for Motions to Suppress Wiretap Evidence

Title III of the Omnibus Crime Control and Safe Streets Act allows law enforcement officers to use wiretapping in limited situations. See 18 U.S.C. §§ 2510-2522. “To obtain a wiretap, a law enforcement official must apply to a [U.S. District Court] judge for an order permitting the surveillance.” United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir. 1988) (citing 18 U.S.C. § 2518(1)). Each wiretap application must meet several statutory requirements. 18 U.S.C. § 2518(1). One of those requirements dictates that each application include a “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.” § 2518(1)(c). A law enforce ment officer typically includes this statement of facts in a sworn affidavit in support of the wiretap application. See United States v. Christie, 825 F.3d 1048, 1066 (9th Cir. 2016). The issuing judge may conclude that the application satisfies the necessity requirement if he or she determines that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(3)(c); see Christie, 825 F.3d at 1066. “Taken together, §§ 2518(1)(c) and (3)(c) require a showing of necessity before a district court can issue a wiretap order.” Carneiro, 861 F.2d at 1176. The wiretap statute also includes its own exclusionary rule, requiring suppression of wiretap evidence that the government obtains in violation of Title III. 18 U.S.C. § 2515; see United States v. Giordano, 416 U.S. 505, 524-25, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). A different district court judge must decide any motion to suppress wiretap evidence, creating a second level of review in the district court.

On appeal, Rodriguez argues that the district court erred by deciding his motion to suppress under an abuse of discretion standard and improperly deferring to the issuing judge, rather than conducting its own independent review of whether the wiretap affidavits contained a full and complete statement of facts sufficient to satisfy 18 U.S.C. § 2518(1)(e).

1. Proper Standard for District Court Considering a Motion to Suppress Wiretap Evidence

When we review a district court’s decision on a motion to suppress wiretap evidence, we determine de novo whether the information in an affiant’s application for a wiretap amounts to “a 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.” Christie, 825 F.3d at 1066 (quoting 18 U.S.C. § 2518(1)(c)). If the wiretap application meets the requirements of § 2518(1)(c), then the Court reviews for abuse of discretion the issuing court’s finding that the wiretap was necessary under § 2518(3)(c) and its decision to grant the wiretap. Id.; see also United States v. Lynch, 437 F.3d 902, 912 (9th Cir. 2006) (en banc); United States v. Canales Gomez, 358 F.3d 1221, 1225 (9th Cir. 2004). We, however, have not explicitly stated whether a district court must apply this same two-step approach when considering a motion to suppress wiretap evidence. Some district court judges in the Ninth Circuit have reviewed wiretap orders issued by another district court judge solely under an abuse of discretion standard. See, e.g., United States v. Ai Le, 255 F.Supp.2d 1132, 1134 (E.D. Cal. 2003); United States v. Sotelo, No. 13cr4514-BEN, 2015 WL 468397, *4 (S.D. Cal. Feb. 3, 2015). Other district court judges have adopted this Court’s two-step approach when deciding a motion to suppress wiretap evidence. See, e.g., United States v. Alvarez, No. 14-cr-00120-EMC-1, 2016 WL 69901, *6-10 (N.D. Cal. Jan. 6, 2016); United States v. Yim, No. CR11-131MJP, 2012 WL 395791, *5 (W.D. Wash. Feb. 7, 2012). The district court judge in this case applied only an abuse of discretion standard when he ruled on the motion at the suppression hearing.

We conclude that district courts should apply the Ninth Circuit’s two-step approach when considering a motion to suppress wiretap evidence. Therefore, a reviewing district court judge must review de novo whether the application for a wiretap contains a 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. Christie, 825 F.3d at 1066 (citing United States v. Rivera, 527 F.3d 891, 898 (9th Cir. 2008)). If the wiretap application meets these requirements of 18 U.S.C. § 2518(1)(c), then the district court judge should review for “abuse of discretion the issuing judge’s conclusion that the wiretap was necessary.” Rivera, 527 F.3d at 898 (citing Lynch, 437 F.3d at 912); see also Christie, 825 F.3d at 1066. In other words, the district court reviews de novo whether a full and complete statement of facts was submitted to the issuing judge under § 2518(1)(c), but “review[s] the issuing court’s ultimate decision to authorize a wiretap [under § 2518(3)(c) ] for an abuse of discretion.” United States v. Gonzalez, Inc., 412 F.3d 1102, 1111-12 (9th Cir. 2005); see also Lynch, 437 F.3d at 912.

A de novo review of whether the affidavit includes a full and complete statement of facts is critical at the motion to suppress stage. A hearing on a motion to suppress is the first time when the necessity determination is reviewed in an adversarial proceeding, with defense counsel having his or her first opportunity to challenge the factual underpinnings of the issuing judge’s finding of necessity and the steps law enforcement officers took or failed to take before seeking authorization for wiretapping. The reviewing district court judge sits in the best position for such a fact-intensive inquiry. This de novo review would also provide a fuller record for appellate review, where any factual findings would be reviewed for clear error. Gonzalez, Inc., 412 F.3d at 1115. Our conclusion is also consistent with our precedent, approving of district court judges who conduct an independent review of whether wiretap affidavits satisfy 18 U.S.C. § 2518(1)(c). See United States v. Reed, 575 F.3d 900, 907 (9th Cir. 2009); Carneiro, 861 F.2d at 1176.

In this case, as we have noted, the district court judge applied an abuse of discretion standard to both determinations made by the issuing judge — whether the affidavit contained a full and complete statement of facts under 18 U.S.C. § 2518(1)(c), and the ultimate decision that it was necessary to authorize the wiretap under § 2518(3)(c). Although we conclude this was error, we need not reverse on this ground because we must do our own de novo review of the statement of facts under 18 U.S.C. § 2518(1)(c).

2. District Court’s Review Limited to Information in the Affidavit

Before reviewing the affidavits, we address an additional problem with the way in which the district court applied the abuse of discretion standard in this case— considering evidence beyond the supporting affidavits. At the suppression hearing, the district court specifically noted that the two judges who approved the wiretap applications involved in this investigation had “half a century of judicial experience between them,” and that they had “reviewed hundreds of wiretap applications in their careers.” In response to Rodriguez’s request for an independent review of the affidavits, the district court stated that it could not ignore the fact that two other judges had reviewed the wiretap applications and that it could not look at the affidavits “with a fresh face as if, in fact, this was all in a vacuum.” The district court cited no evidence from the affidavits themselves at the hearing. Instead, it focused on the fact that other judges had reviewed the wiretap applications and deferred to them. This was error.

When deciding a motion to suppress evidence, the district court must examine each wiretap application separately and may look only to information in the relevant affidavit to determine whether it contains a full and complete statement of facts under § 2518(1)(c). See Carneiro, 861 F.2d at 1176. “Each wiretap, application, standing alone, must satisfy the necessity requirement.” Id. (emphasis in original). On that basis, the reviewing judge must decide first whether the statement of facts in each affidavit was sufficient under § 2518(1)(c), and then whether the issuing judge abused her discretion in finding necessity and issuing the wiretap order.

Although we conclude that the district court judge impermissibly reviewed the wiretap orders under only an abuse of discretion standard and considered evidence beyond the statements in the affidavits, we decline to remand the case in order to have the district court conduct a de novo review of the statement of facts set forth in the affidavits. Because we must conduct that same inquiry on appeal, a remand to the district court would be superfluous.

B. General Challenges to the Wiretap Affidavits

Before turning to our de novo review of each wiretap affidavit, we first consider two general arguments that Rodriguez makes regarding the necessity requirement itself. First, Rodriguez argues that there was insufficient evidence in the affidavits of particularized necessity, that is, necessity with respect to him alone. He contends that any affidavit must show particularized necessity as to him and that any statements pertaining to the Mexican Mafia, other members of the conspiracy, or the conspiracy in general cannot be used to establish necessity for the wiretap.

We have said that an affidavit must include “specific facts relevant'to the particular circumstances” of the case and not just boilerplate conclusions. United States v. Blackmon, 273 F.3d 1204, 1210 (9th Cir. 2001). Under this reasoning, statements pertaining to the conspiracy in general can be used to show why an investigative technique would be too dangerous or unproductive in regard to all of the target subjects listed in a single wiretap application, so long as they are supported by facts specific to the case. While the “the government is not free to transfer a statutory showing of necessity from one [wiretap] application to another — even within the same investigation,” that is not what happened here. Gonzalez, Inc., 412 F.3d at 1115. Officer McKean appropriately explained in the affidavits why certain techniques would be unproductive or too dangerous in regard to all of the target subjects, including Rodriguez, due to alleged associations with the Mexican Mafia. That is sufficient under our precedent.

In further support for this conclusion, we note that “[investigations of criminal conspiracies present unique law enforcement problems and pose a greater threat to society than individual action toward the same end.” Canales Gomez, 358 F.3d at 1226 (citation and internal quotation marks omitted). Thus, the “government is entitled to more leeway in its investigative methods when it pursues a conspiracy.” United States v. McGuire, 307 F.3d 1192, 1198 (9th Cir. 2002). Citing the first affidavit, Rodriguez begins by disputing that the government was even investigating a conspiracy and sought to identify unknown individuals in that conspiracy; he asserts that the investigation’s true purpose was to “develop information regarding [Rodriguez’s] distribution of drugs.” From the affidavits, however, it is clear that the government sought a wiretap for Rodriguez’s phone to understand his role in a larger extortion and drug conspiracy associated with the Mexican Mafia. The first affidavit, for example, states that the wiretap is necessary to “develop information regarding [Rodriguez’s] distribution of drugs” and “to determin[e] whether the Tri-City Hills gang [of which Rodriguez was a member] is collecting and/or paying taxes to various Mexican Mafia associates like similarly situated gangs.” Contrary to the particularity argument Rodriguez mákes here, “[t]he necessity for the wiretap is evaluated in light of the government’s need not merely to collect some evidence, but to develop an effective case against those involved in the conspiracy.” United States v. Decoud, 456 F.3d 996, 1007 (9th Cir. 2006) (citation and internal quotation marks omitted). Given the “leeway” we give the government when it is investigating a conspiracy, Canales Gomez, 358 F.3d at 1226, we may consider general statements about the conspiracy so long as they are specific to the case and are not impermissible boilerplate conclusions about the inherent limitations of a particular investigative technique.

Second, Rodriguez contends that this Court cannot conclude that the affidavits contain a full and complete statement of facts because the affidavits did not include the fact that Rodriguez was subject to a Fourth Amendment search waiver. As a preliminary matter, we note that Rodriguez has not sufficiently established in the record that the government was aware that Rodriguez was subject to a search waiver when it submitted the wiretap applications to the issuing judge. Rodriguez simply argues that the government must have been aware of the search waiver because the police conducted a physical search of his residence, pursuant to the waiver, nearly two months after the police submitted the wiretap applications.

A search waiver is relevant to the necessity determination under 18 U.S.C. § 2518(1)(c) because the waiver allows law enforcement officers to conduct a more extensive search than a search pursuant to a search warrant, which would be limited in scope and particularity. The government argues, however, that knowledge of the Fourth Amendment search waiver would not have affected the issuing judge’s determination here because the affidavit already explained that any searches would have been impractical and largely unproductive. See United States v. Ippolito, 774 F.2d 1482, 1485-86 (9th Cir. 1985). This rationale, the government argues, extends to searches pursuant to Fourth Amendment search waivers where the same type of limited evidence would have been discovered. We agree.

In the context of this case, the government sought evidence to identify and prove relationships between certain subjects and determine the extent of the subjects’ involvement with the Mexican Mafia. The affidavits explain that this type of evidence is “rarely ‘stored’ in locations that can be searched or even kept in a tangible form capable of being physically seized.” Because it follows that a search conducted pursuant to a Fourth Amendment search waiver would have been similarly unproductive, the omission of the search waiver from the statement of facts does not tip the balance and lead to a conclusion that the affidavits did not include a full and complete statement of facts under 18 U.S.C. § 2518(1)(c) or that the issuing judge abused her discretion in issuing the wiretap orders.

C. Statutory Requirement of Necessity

As noted, in reviewing a district court’s decision on a motion to suppress wiretap evidence, we review de novo whether the application for the wiretap contained “a 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); see Christie, 825 F.3d at 1066; Rivera, 527 F.3d at 898. The application must include more than “boilerplate conclusions that merely describe inherent limitations of normal investigative procedures.” Christie, 825 F.3d at 1068 (citing Blackmon, 273 F.3d at 1210). If the wiretap application meets the requirements of 18 U.S.C. § 2518(1)(c), we then review the decision to authorize the wiretap for abuse of discretion. Id. at 1066. We review each wiretap independently. Gonzalez, Inc., 412 F.3d at 1115.

1. Whether the Affidavits Contain a Full and Compete Statement of Facts

We first turn to a de novo review of the statements in the wiretap affidavits purporting to show necessity under 18 U.S.C. § 2518(1)(c). Each affidavit includes information about confidential sources, undercover officers, physical surveillance, stationary surveillance, pen registers, toll analysis, grand jury subpoenas, trash searches, search warrants, interviews with associates, mail covers, and vehicle tracking devices. The second affidavit is not an impermissible “carbon copy” of the first, Blackmon, 273 F.3d at 1208, because it explains the developments in the case since the authorization of the first wiretap and the need for new wiretaps on phone numbers listed to Carrie Brown-Rodriguez. Specifically, law enforcement officers sought a wiretap for phone numbers associated with Rodriguez’s wife because Rodriguez was no longer using the phone that was wiretapped as a result of the first wiretap authorization.

The affidavits contain some boilerplate conclusions as to the effectiveness of certain techniques, particularly regarding pen registers, pole cameras, grand jury subpoenas, search warrants, and interviews with associates and targets. For example, the second affidavit explains that search warrants would be unproductive because the “execution of such search warrants would likely cause certain Target Subjects to cease use of their respective telephones and take additional steps to conceal, their activities.” Some boilerplate language, however, is. not fatal as we evaluate “ ‘the level of detail in the affidavit as a whole,’ rather than piecemeal.” Christie, 825 F.3d at 1068 (quoting Rivera, 527 F.3d at 899) (emphasis in original).

Each affidavit includes information on why a particular technique would not be effective in this particular investigation. Both affidavits explain that the effectiveness of undercover agents, confidential sources, interviews, and grand jury subpoenas is limited due to the extreme violence that the Mexican Mafia uses in its everyday operation. The first affidavit notes that the Mexican Mafia “ruthlessly punishes law enforcement cooperators,” and the organization’s reputation “has caused and will continue to cause potential cooperators ... to resist recruitment by law enforcement.” As noted above, Rodriguez asserts that these explanations cannot be used to show necessity as to him. In United States v. McGuire, however, we accepted an affidavit with similar explanations regarding a “close-knit” group with a “known violent propensity.” 307 F.3d at 1197. Here, it is logical to conclude that these statements may extend to Rodriguez as a gang member allegedly associated with fhe Mexican Mafia.

In regard to undercover agents, both affidavits explain that the insular and violent nature of the Mexican Mafia and its associated street gangs would make the insertion of an undercover agent into this investigation unproductive or too dangerous. The first affidavit notes that it would not be possible to create an undercover identity “that includes serving time in prison, because, any claim of prison time would be rapidly disproved by the Mexican Mafia’s inmate network.” Both affidavits note that the Mexican Mafia relies on its 200 members and street gang members who “are from the same neighborhoods and often grow up together.” The Mexican Mafia members and its associated street .gangs rely on close connections of individuals they already know, which sufficiently explains why the use of undercover agents would not be a successful investigative technique. Although Rodriguez asserts that these statements offer no information on why the government could not use an undercover agent in the investigation of him, as we noted above, it is fair to infer that these statements are relevant to Rodriguez, among others, because the government was investigating his association with the Mexican Mafia.

With respect to stationary surveillance, the first affidavit explains that pole cameras would not be productive because Rodriguez lives in a community apartment building. Rodriguez argues that this “blanket assertion” that the value of stationary surveillance would be limited because Rodriguez lived in an apartment building is insufficient. We disagree. Rodriguez incorrectly states that the first affidavit includes no information about the “layout of the apartment building that would make stationary surveillance impractical.” The first affidavit notes that pole cameras could not be installed in any location that could observe Rodriguez’s apartment, and that agents therefore would be unable to differentiate individuals visiting Rodriguez from those who are “visiting or returning to other apartments in the building.” The second affidavit explains that agents placed pole cameras outside two residences associated with Rodriguez and Brown-Rodriguez other than the apartment listed in the first affidavit. The affidavit states that while these cameras would be helpful to see if any of the target subjects visit those residences, they would provide no information about the substance of any communications between target subjects regarding criminal activity.

Rodriguez also contends that because law enforcement officers did not attempt trash searches, the government has not established necessity. We, however, do not require law enforcement officers to “exhaust every conceivable alternative before obtaining a wiretap.” Christie, 825 F.3d at 1068 (citing Rivera, 527 F.3d at 903). The affidavit need only explain why a particular investigative procedure reasonably appears “unlikely to succeed.” 18 U.S.C. § 2518(1)(c). The first affidavit adequately explains that trash searches would be unproductive because Rodriguez lives in an apartment building, and law enforcement officers would not be able to separate his trash from the trash of other residents. Similarly, the second affidavit states that trash searches would be unlikely to produce the kinds of evidence sought in this investigation, such as “the disposition of tax proceeds collected from gang members,” “the manner and timing of the importation of narcotics,” and “the location of additional stash houses.”

According to Rodriguez, the first affidavit also insufficiently explains the need for a wiretap in light of the success in the investigation through a confidential source (“CS-1”). The first affidavit shows that CS-1 was successful in providing the government with information on Rodriguez and other subjects through controlled buys during the first two months of the investigation. We, however, have acknowledged that “the mere attainment of some degree of success during law enforcement’s use of traditional investigative methods does not alone serve to extinguish the need for a wiretap.” United States v. Bennett, 219 F.3d 1117, 1122 (9th Cir. 2000). The first affidavit also explains that the evidence that CS-1 could provide was limited because he could not inquire about Rodriguez’s relationship to other subjects “without raising suspicion,” and perhaps putting himself at great risk. See Canales Gomez, 358 F.3d at 1226 (quoting United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993)) (“[T]he use of informants to investigate and prosecute persons engaged in clandestine criminal activity is fraught with peril.”).

The second affidavit states that CS-1 is no longer an available source because he was involved in unsanctioned illegal activity. These explanations do not explicitly “recite the inherent limitations of using confidential informants” but explain “in reasonable detail why each confidential source ... was unable or unlikely to succeed in achieving the goals of the [particular] investigation.” See Rivera, 527 F.3d at 899. They are more than sufficient.

Based on a de novo review of both affidavits, we conclude that they adequately explained why the interception of wire communications was necessary to investigate this conspiracy and the target subjects, and that they contained a full and complete statement of facts to establish necessity under 18 U.S.C. § 2518(1)(c). See Canales Gomez, 358 F.3d at 1225.

2. Whether the Wiretaps Were Necessary

We turn next to the question of whether the issuing judge appropriately determined “on the basis of the facts submitted by the applicant [in the affidavits] that ... normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C, § 2518(3)(e). As we have said, we review for an abuse of discretion the issuing judge’s decision to issue the wiretap order once she has found that the wiretap was necessary in the circumstances. Lynch, 437 F.3d at 912; Canales Gomez, 358 F.3d at 1225.

In undertaking this review, we use “a ‘common sense approach’ to evaluate the reasonableness of the government’s good faith efforts to use traditional investigative tactics or its decision to forego such tactics based on the unlikelihood of their success.” Christie, 825 F.3d at 1068 (quoting Gonzalez, Inc., 412 F.3d at 1112). Rodriguez argues that individual subjects were not surveilled long enough to justify a finding of necessity for the wiretaps. The government applied for the first wiretap after two and a half months of investigation. We have never stated a minimum number of days of investigation required before the government may apply for a wiretap authorization, but the length of the investigation is a factor in the analysis. Given the wide range of traditional techniques used in the first two months of investigation, it does not appear in this case that the government sought “ ‘to use the wiretap as the initial step’ in its investigation.” Christie, 825 F.3d at 1068 (citing Rivera, 527 F.3d at 902).

We have always accorded the issuing judge “considerable discretion in finding necessity, particularly when the case involves the investigation of a conspiracy,” Reed, 575 F.3d at 909, so our standard of review is deferential, McGuire, 307 F.3d at 1197. The affidavits here show that the government used a range of traditional techniques including confidential sources, pen registers, physical surveillance, and grand jury subpoenas before seeking authorization for electronic surveillance. The affidavits also explain why other techniques such as search warrants, undercover agents, trash searches, stationary surveillance, and interviews with witnesses would be unproductive or dangerous given specific facts about the Mexican Mafia and the particular case. In this case, law enforcement officers specifically sought to gain evidence and knowledge of how the Mexican Mafia and associated gangs were operating through extortion and drug trafficking. In addition, we have “consistently upheld findings of necessity where traditional investigative techniques lead only to apprehension and prosecution of the main conspirators, but not to apprehension and prosecution of ... other satellite conspirators.” Rivera, 527 F.3d at 902 (citing McGuire, 307 F.3d at 1198).

After reviewing the factual statements in the affidavits, which include the purpose of the investigation and the information sought, we cannot say that the issuing judge abused her discretion in finding necessity in the circumstances presented here.

III. SENTENCING ISSUES

A. Sentencing Enhancement under 21 U.S.C. § 851

Rodriguez makes two arguments to attack his sentence enhancement under 21 U.S.C. § 851. First, he contends that the statutory scheme under § 851 violates Rodriguez’s Sixth Amendment right to a jury trial. Second, he argues that the district court erred in applying the sentencing enhancement because the government failed to prove his identity in the three prior convictions that were the basis for the enhancement.

Rodriguez’s first argument lacks merit. Relying on Alleyne v. United States, Rodriguez argues that the sentence enhancement scheme under '§ 851, which increases an individual’s mandatory minimum sentence, violates the Sixth Amendment because “facts that increase mandatory minimum sentences must be submitted to the jury.” — U.S. -, 133 S.Ct. 2151, 2163, 186 L.Ed.2d 314 (2013). The Supreme Court in Almendarez-Torres v. United States held that the fact of a prior conviction used to enhance a sentence is a sentencing factor and not an element of the offense that must be decided by a jury. 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). We have “repeatedly held ... that Almendarez-Torres is binding unless it is expressly overruled by the Supreme Court.” United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011); see also United States v. Vallejos, 742 F.3d 902, 906 (9th Cir. 2014). We therefore conclude that the district court’s application of § 851 to enhance Rodriguez’s sentence did not violate his Sixth Amendment rights.

Rodriguez’s second argument requires fuller discussion. A grand jury indicted Rodriguez for violating 21 U.S.C. § 841(a)(1). Section 841 allows the government to seek increased penalties if the individual commits the violation after a prior felony drug conviction has become final. 21 U.S.C. § 841(b)(1)(A)(viii). Pursuant to the procedures set forth in § 851, the government filed an information seeking enhanced penalties to increase Rodriguez’s potential mandatory minimum from 10 years to 20 years. § 851(a). Rodriguez filed a written response challenging the prior convictions on the grounds that (1) the statutory scheme under 21 U.S.C. § 851 is unconstitutional, and (2) two of the three prior convictions were not controlled-substance offenses that could serve as a basis for the enhancement — an issue he does not raise on appeal.

At a hearing before sentencing, the government presented certified copies of three prior convictions to support the sentence enhancement under § 851. After the prosecution finished presenting its evidence of the prior convictions, Rodriguez’s counsel raised a new argument that there was “[njothing to show that [his] client is the individual who is listed here as Robert Rodriguez in these documents.” In other words, he argued that the government failed to prove with sufficient evidence that he was the “Robert Rodriguez” named in the convictions. After the government noted that this argument was not included in Rodriguez’s written response, the district court asked defense counsel if “as an officer of the court” he had “a good faith belief that these [were] not [his] client’s convictions.” Defense counsel responded that he would prefer not to answer unless ordered to do so by the court. After the district court ordered him to respond, defense counsel said, “I believe these are my client’s convictions.” Significantly, the district court made no such inquiry personally of Rodriguez. After further discussion, the district court concluded that the certified copies of the convictions proffered by the government were “reasonably reliable information that these are convictions suffered by the defendant,”.and that the government had met its burden of proving the prior convictions under § 851.

To seek an enhanced penalty, the government must file, before trial or before the entry of a plea, a written information stating “the previous convictions to be relied upon.” 21 U.S.C. § 851(a)(1). The government did so in this case. At some point before the sentence is imposed, the district court must address the defendant personally and (1) “inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information,” and (2) “inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.” § 851(b). If a defendant “denies any allegation of the information” or “claims that any conviction alleged is invalid,” he must file a written response, which triggers a hearing “to determine any issues raised by the response.” § 851(c)(1). At the hearing, the government has the burden of proof beyond a reasonable doubt on any disputed issue of fact. Id. “Any challenge to a prior conviction, not raised by response to the information” is waived unless the person can show “good cause” for a failure to make a timely challenge. § 851(c)(2).

We require “strict compliance with the procedural aspects of section 851(b).” United States v. Hamilton, 208 F.3d 1165, 1168 (9th Cir. 2000). The § 851(b) colloquy is not merely a procedural requirement. It serves a functional purpose “to place the procedural onus on the district court to ensure defendants are fully aware of their rights.” United States v. Espinal, 634 F.3d 655, 665 (2d Cir. 2011) (quoting United States v. Baugham, 613 F.3d 291, 296 (D.C. Cir. 2010)). In this case, the district court “did not follow these procedures meticulously.” Id. at 662. It did not ask Rodriguez if he affirmed or denied the prior convictions nor did it inform him that he had to raise any challenge to a prior conviction before the sentence was imposed. The district court thus failed to comply with § 851(b).

“The general rule is clear that failure to comply with section 851(b) renders the sentence illegal.” United States v. Housley, 907 F.2d 920, 921 (9th Cir. 1990) (citation and internal quotation marks omitted). But “non-prejudicial errors in complying with the procedural requirements of § 851” do not automatically require reversal; they sometimes may be harmless. Espinal, 634 F.3d at 665; see also United States v. Severino, 316 F.3d 939, 948 (9th Cir. 2003) (en banc) (concluding that the district court’s failure to give a § 851(b) colloquy was not plain error where the defendant “had no way to challenge the validity of the prior conviction”); Housley, 907 F.2d at 921 (concluding that the district court’s failure to give a § 851(b) colloquy was harmless where the defendant was barred from challenging the validity of the convictions due to § 851(e)). In this case, however, a combination of factors — the detailed procedures required by § 851, the district court’s failure to comply strictly with § 851 and the resulting confusion, the lack of clarity in the court’s ruling, and the serious impact that the 20-year statutory mandatory minimum had on the sentence imposed — lead us to conclude that the error here was not harmless.

The § 851(b) colloquy notifies the defendant that he must include all challenges to his prior convictions in the written response, or he forever waives such challenges. § 851(b). Rodriguez filed a written response, but he did not explicitly deny the convictions or argue that he was not the individual listed in the exhibits attached to the government’s information. It appears that Rodriguez or- his attorney made a tactical choice not to include his identity challenge in the written response, and instead raised it orally only after the government had concluded its presentation. We do not condone attempts to surprise opposing counsel with an argument that was not raised in submitted papers, and Rodriguez’s choice certainly added to the confusion at the proceeding. Nevertheless, under the statute, Rodriguez was not required to affirm or deny the convictions or file a written response until addressed personally by the district court and advised of his obligation to do so and — importantly — that any failure to do so waived any objections. Espinal, 634 F.3d at 663-65. That Rodriguez ultimately did file a written response does not negate the importance of a proper advisal.

In addition to the impact on a defendant, when the court fails to follow the procedures in § 851(b), the government does not have a fair opportunity to present its best arguments and evidence. See id. at 666. The procedures in the statute anticipate that the § 851(b) colloquy and the defendant’s written denial of the convictions or any allegation in the information will occur before the government must produce further evidence at the hearing. Although the government has the burden of proving disputed facts at the hearing beyond a reasonable doubt, “that burden is triggered only where the defendant denies the prior felony and submits a written response raising a [disputed] factual issue.” Id. at 664 (citing 21 U.S.C. § 851(c)).

Two additional procedural defects warrant remand in this case. First, the district court appears to have been uncertain of its responsibilities under § 851 as the sentencing hearing unfolded. At one point in the proceeding, the court noted that the presentence investigation report set out Rodriguez’s prior convictions, but then conflated Rodriguez’s failure to object to the convictions set forth in the report with his separate identity challenge. The district court also asked “how else would we prove” these convictions and later questioned whether § 851 required testimony from individuals and whether a jury was required. Section 851 explicitly answers these questions. If the defendant denies any allegation in the information and files a written response, a “hearing shall be [held] before the court without a jury and either party may introduce evidence.” § 851(c)(1). Furthermore, a district court may find as a matter of fact any undisputed portion of a presentence investigation report under Rule 32 of the Federal Rules of Criminal Procedure, but that is not the same as the requirement that the government prove beyond a reasonable doubt a disputed fact, including a prior conviction under § 851. See Fed. R. Crim. P. 32(i)(3)(A).

Second, it is unclear from the record whether the district court used the appropriate standard when it ultimately ruled on the merits of the § 851 issues and concluded that Rodriguez was subject to a 20-year statutory mandatory minimum. Initially, the district court characterized its inquiry as whether the documents provided by the government were “reasonably reliable information.” After further discussion with the parties, the court then stated:

I have reasonably reliable information that these are convictions suffered by the defendant, Mr. Rodriguez.... Proof beyond a reasonable doubt does not require proof beyond all doubt. It is proof using common sense that, in fact, these are Mr. Rodriguez’s convictions .... I’m satisfied that, in fact, the government has proved that these are the defendant’s prior convictions. So that is my ruling.

From these statements, it is unclear whether the district court applied the required proof beyond a reasonable doubt standard or a lesser “reasonable reliability” standard.

The procedures detailed in § 851 are intended to provide clarity to all parties before a judge imposes a lengthy mandatory minimum sentence that substantially affects a defendant. As the Second Circuit has noted, “[c]onsidering that a ten-year sentencing enhancement turns on the outcome of the § 851 procedure, the failure to comply fully with the statute’s procedural requirements should not casually be deemed harmless error.” Espinal, 634 F.3d at 667. Given the procedural defects here — and despite the fact that Rodriguez’s counsel caused some of the confusion, see id. at 663 — we cannot say the error in this case was harmless. We therefore vacate Rodriguez’s sentence and remand for resentencing.

B. Guidelines Sentencing Adjustments Under §§ 3B1.1 and 3E1.1

Although we vacate Rodriguez’s sentence for the district court’s failure to comply with 21 U.S.C. § 851(b), we address Rodriguez’s other sentencing guidelines arguments because these issues are likely to arise again at resentencing.

When calculating Rodriguez’s guidelines sentencing range, the district court applied a four-level upward adjustment under U.S.S.G. § 3B1.1(a) after finding that Rodriguez was a leader of a criminal activity. The district court also denied Rodriguez’s request for a two-level downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(a). Rodriguez first argues that a factual determination by a judge that Rodriguez was a leader of a criminal activity violates the Sixth Amendment, and that under Alleyne, such a fact must be proven to a jury beyond a reasonable doubt. 133 S.Ct. at 2151. Second, he maintains that the district court erred by denying a downward adjustment for acceptance of responsibility.

Under U.S.S.G. § 3B1.1(a), a district court may increase the base offense level by four levels if the court finds that the “defendant was an organizer or leader of a criminal activity that involved five or more participants.” In United States v. Vallejos, we concluded that if an offense level increase under the U.S. Sentencing Guidelines does not affect the statutory maximum sentence or the mandatory minimum sentence, “neither Apprendi nor Alleyne v. United States is implicated.” 742 F.3d at 906 (citing Alleyne, 133 S.Ct. at 2163). The organizer/leader adjustment did not affect the statutory maximum or mandatory minimum of Rodriguez’s sentence, and therefore neither Alleyne nor Apprendi require a jury to find that Rodriguez was an organizer or leader of a criminal activity. Id. The district court did not violate Rodriguez’s constitutional rights by applying an upward adjustment under U.S.S.G. § 3B1.1(a) without submitting the issue to a jury.

The Sentencing Guidelines allow a two-level downward adjustment to an individual’s base offense level “if the defendant clearly demonstrates acceptance of responsibility for Ms offense.” U.S.S.G. § 3E1.1(a). “A district court’s decision about whether a defendant has accepted responsibility is a factual determination reviewed for clear error.” United States v. Doe, 778 F.3d 814, 821 (9th Cir. 2015) (quoting United States v. Rosas, 615 F.3d 1058, 1066 (9th Cir. 2010)). “The determination of the sentencing judge is entitled to great deference on review because of the sentencing judge’s unique position to evaluate a defendant’s acceptance of responsibility.” United States v. Nielsen, 371 F.3d 574, 582 (9th Cir. 2004) (citation and internal quotation marks omitted). The defendant bears the burden of demonstrating acceptance of responsibility, United States v. Osinger, 753 F.3d 939, 948 (9th Cir. 2014), and must show “genuine contrition for his acts,” United States v. Dhingra, 371 F.3d 557, 568 (9th Cir. 2004). We conclude that the district court did not clearly err in denying the adjustment.

The Sentencing Guidelines note that a downward adjustment for acceptance of responsibility generally is not intended to apply to a defendant, like Rodriguez, “who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1 cmt. 2. But “in appropriate circumstances the [adjustment] is also available in cases in which the defendant manifests genuine contrition for his acts but nonetheless contests his factual guilt at trial.” United States v. Cantrell, 433 F.3d 1269, 1285 (9th Cir. 2006) (quoting United States v. McKinney, 15 F.3d 849, 853 (9th Cir. 1994)).

In his presentence interview, Rodriguez expressed his regret for involving himself in illegal activity, and he said how difficult his incarceration had been on his family. Rodriguez stated that he went to trial because he was not made a reasonable plea offer and therefore had no other choice but to go to trial. Rodriguez chose not to speak at sentencing and provided no other statements that demonstrated that he had accepted responsibility for his actions. Although Rodriguez expressed some regret for his actions to the probation officer, these statements do not necessarily indicate that he showed genuine contrition for his actions, or that the district court clearly erred in denying a downward adjustment for acceptance of responsibility. See United States v. Martinez-Martinez, 369 F.3d 1076, 1090 (9th Cir. 2004).

C. Substantive Reasonableness of Rodriguez’s Sentence

Rodriguez’s sentence of 600 months — or 50 years — may be unduly harsh, and we might reasonably question whether it was “greater than necessary” to further the purposes of the sentencing statute. 18 U.S.C. § 3553(a); see United States v. Crowe, 563 F.3d 969, 978 (9th Cir. 2009); United States v. Cherer, 513 F.3d 1150, 1159 (9th Cir. 2008). Although Rodriguez had an extensive criminal history, his sentence is longer than those for many violent crimes. Ultimately, we need not reach Rodriguez’s substantive unreasonableness claim because, for the reasons previously discussed, we vacate the sentence and remand for resentencing.

The judgment of conviction is AFFIRMED. The sentence is VACATED, and we REMAND for resentencing.

      . This rule applies unless the defendant alleges that the wiretap application contains material misstatements or inaccuracies. As noted in our prior opinions, “[i]f an application contains inaccuracies or significant omissions, the court must determine the facts relying on credible evidence produced at the suppression hearing to determine whether a ‘reasonable [issuing] judge could have denied the application because necessity for the wiretap had not been shown.' ” United States v. Blackmon, 273 F.3d 1204, 1209 (9th Cir. 2001) (citing United States v. Ippolito, 774 F.2d 1482, 1486 (9th Cir. 1985)); see also Carneiro, 861 F.2d at 1176. Here, Rodriguez only alleged that the facts submitted in the affidavit did not establish necessity under 18 U.S.C. § 2518(1)(c).

      . As previously noted, the record does not contain the exact language of Rodriguez's Fourth Amendment search waiver. These search waivers are commonly included as a condition for probation and require the individual to subject his person, property, and residence to search and seizure without the standard level of cause. See United States v. Lara, 815 F.3d 605, 607 (9th Cir. 2016). We note, however, that the exact language used in search waivers is not uniform and varies depending on the. probation condition.

      . Although the search waiver and a potential search warrant are equivalent in terms of necessity for a wiretap application here, that may not always be the case. Here, law enforcement officers sought evidence that would likely not be produced from a search pursuant to a search warrant or a search waiver.-

      . Although 21 U.S.C. § 851 does not state precisely when the district court must engage in the § 851(b) colloquy, it “seem[s] preferable not to postpone the inquiry until the scheduled sentencing date” to avoid the kind of confusion that occurred in this case. Espi-nal, 634 F.3d at 662. The district court may, however, hold the proceeding required by § 851(c) immediately before sentencing; it need not hold a separate hearing on a different day. See Housley, 907 F.2d at 921.

      . We decline to state whether the certified copies of conviction offered by the government proved beyond a reasonable doubt that Rodriguez suffered these convictions, although this was not a case in which the government produced unverified or incomplete records as proof of prior convictions. See Espinal, 634 F.3d at 660, 663.


text:
    FLO & EDDIE, INC., a California corporation, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. PANDORA MEDIA, INC., a Delaware corporation, Defendant-Appellant.
    No. 15-55287
    United States Court of Appeals, Ninth Circuit.
    Filed March 15, 2017
    D.C. No. 2:14-cv-07648-PSG-RZ
    Before: STEPHEN REINHARDT and RICHARD A. PAEZ, Circuit Judges, and PAUL L. FRIEDMAN, District Judge.

       The Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation.

   Order

We certify the questions set forth in Part II of this order to the California Supreme Court. All farther proceedings in this case are stayed pending final action by the California Supreme Court, and this case is withdrawn from submission until further order of this court.

I.Administrative Information

We provide the following information in accordance 'with Rule 8.548(b)(1) of the California Rules of Court.

The caption of this case is:

No. 15-55287

Flo & Eddie, Inc., Plaintiff and Appellee, v. Pandora Media, Inc., Defendant and Appellant.

The names and addresses of counsel are:

For Plaintiff-Appellee Flo & Eddie: Henry Gradstein, Maryann R. Marzano, Harvey Geller, Daniel B. Lifschitz, Grad-stein & Marzano, P.C., 6310 San Vicente Boulevard, Suite 510, Los Angeles, California, 90048.

For Defendant-Appellant Pandora Media: James K. Lynch, Andrew M. Gass, Latham & Watkins LLP, 505 Montgomery Street, Suite 2000, San Francisco, California, 94111; Gregory G. Garre, Jonathan Y. Ellis, Latham & Watkins LLP, 555 Eleventh Street, NW, Suite 1000, Washington, D.C., 20004.

II.Certified Questions

Pursuant to Rule 8.548(b)(2) of the California Rules of Court, we respectfully request the Supreme Court of California to decide the certified questions presented below. There is no controlling precedent regarding the certified questions, the answers to which will determine the outcome of this appeal, dispose of Flo & Eddie’s underlying claims, and resolve an important area of California state law. The questions certified are as follows:

1. Under section 980(a)(2) of the California Civil Code, do copyright owners of pre-1972 sound recordings that were sold, to the public before 1982 possess an exclusive right of public performance?
2. If not, does California’s common law of property or tort otherwise grant copyright owners of pre-1972 sound recordings an exclusive right of public performance?

III.Statement of Facts

Appellee Flo & Eddie is a corporation created by two founding members of The Turtles, a 1960s folk rock band best known for the hit song “Happy Together.” Flo & Eddie allegedly acquired the rights to a number of The Turtles’ pre-1972 sound recordings, which it has licensed to music, film, and internet companies for various uses.

. Appellant Pandora is an online radio service that allows users to stream music on internet-connected devices, including, until recently, The Turtles’ music. Pandora has not paid Flo & Eddie for the public performance of its sound recordings, nor does it generally do so for performers of pre-1972 sound recordings.

On October 1, 2014, Flo & Eddie filed an action for damages against Pandora for publicly performing The Turtles’ pre-1972 sound recordings on its services. without paying royalties. Flo & Eddie alleged that these sound recordings were protected under section 980(a)(2) of the California Civil Code, as well as the state’s common law.

Originally enacted in 1872, and amended in 1947 and 1982, section 980 has undergone, at times, substantial revision that may bear on the merits of Flo & Eddie’s claims. We therefore briefly summarize the evolution of state and related federal law, as relevant to the parties’ arguments.

A.

At the time The Turtles were recording and releasing music in the 1960s, section 980(a) codified what was known as “common law copyright.” It granted the “author or proprietor of any composition in letters or art ... an exclusive ownership in the representation or expression thereof as against all persons except” cover artists. Cal. Civ. Code § 980(a) (1949). At the same time, section 988(a) of the California Civil Code divested any common law rights once “the owner of a composition in letters or arts publishe[d] it.” Cal. Civ. Code § 983(a) (1949). Upon publication, “the same [could] be used in any manner by any person, without responsibility to the owner, insofar as the law of this State is concerned.” Id.

The California legislature originally adopted this language in 1947, seemingly “to remove ambiguities in the State law and to bring the California statute into accord with federal law and judicial precedent within and without California.” Memorandum from Beach Vasey, Legislative See’y, State of Cal., to Governor Earl Warren (July 3, 1947) (emphasis added). The “federal law” in force at time of adoption and through the 1960s was the Copyright Act of 1909, which, like the California copyright statutes, did not expressly mention sound recordings.

Rather, the 1909 Act differentiated between unpublished and published works. Unpublished works were left to the protection of the common law, unless registered for federal protection. See Twin Books Corp. v. Walt Disney Co., 83 F.3d 1162, 1165 (9th Cir. 1996) (“Under the 1909 Act, an unpublished work was protected by state common law copyright from the moment of its creation until it was either published or until it received protection under the federal copyright scheme.”). Upon publication with proper copyright notice, federal protection automatically attached and common law protection terminated. Works that were published without proper copyright notice irrevocably entered into the public domain. See Batjac Prods. Inc. v. GoodTimes Home Video Corp., 160 F.3d 1223, 1226 (9th Cir. 1998) (explaining that, under the 1909 Act, “[s]tate ‘common law' protection attached upon creation of the work and ended with publication of the work. Once published, the only protection available was federal statutory copyright. Publication of a work with proper notice secured the statutory copyright.”). The 1947 amendments to California’s copyright statutes therefore reflected this schema by divesting common law copyright protection at the point of publication. Cal. Civ. Code § 983(a) (1949).

In 1978, however, this schema changed. Congress overhauled federal copyright law. Rather than limiting federal copyright protection only to works that were published with proper notice, the Federal Copyright Act of 1976 expanded federal protection to any works fixed in a tangible medium of expression — thereby preempting common law protection for fixed, but still unpublished works. See Federal Copyright Act of 1976, Pub. L. No. 94-553, § 102(a), 90 Stat. 2541, 2592 (1976); Batjac Prods., 160 F.3d at 1226 (“Under the 1976 Act, unpublished works lost their common law protection but gained statutory protection.”).

The 1976 Act expressly exempted pre-1972 sound recordings from this new federal protection, however. 17 U.S.C. § 301(c). Instead, the 1976 Act left the common law in place to protect pre-1972 sound recordings. Id. (“With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067.”).

In response, the California legislature repealed the divestiture-by-publication rule of section 983 and again amended section 980(a), dividing it into two subsections. . Since then, section 980(a)(2) has granted the “author of ... a sound recording initially fixed prior to February 15, 1972 ... an exclusive ownership therein until February 15, 2047, as against all persons except” cover artists. Cal. Civ. Code § 980(a)(2). Whether section 980(a)(2) or California common law extend an exclusive right of public performance to owners of pre-1972 sound recordings is the subject of this lawsuit.

B.

After Flo & Eddie filed the present lawsuit, Pandora filed a motion to strike under California’s statute against “strategic litigation against public participation,” or SLAPP. Pandora argued that section 980(a)(2) does not even apply to The Turtles’ recordings since, under section 983(a), those recordings entered the public domain at the point of publication back in the 1960s. Relying on the legislative history of section 980, Pandora further argued that the California legislature in 1982 did not intend to create protection for sound recordings that had previously entered the public domain when it adopted section 980(a)(2). Even if it did, Pandora argued, the legislature did not intend that protection to include a public performance right.

Flo & Eddie opposed the motion, arguing that the plain language of section 980 gave it “exclusive ownership” over The Turtles’ pre-1972 sound recordings, including a public performance right. Flo & Eddie further argued that the repeal of section 983 made that provision irrelevant. Even if it had never been repealed, Flo & Eddie argued, section 983 never applied to its sound recordings because (1) The Turtles’ records were not “published” for the purposes of California law, and (2) section 983 applied only to compositions.

The district court rejected Pandora’s arguments and denied the motion to strike, reasoning that Pandora’s reading of section 980(a)(2) would lead to absurd results. Flo & Eddie, Inc. v. Pandora Media, Inc., No. CV 14-7648 PSG (RZx), 2015 U.S. Dist. LEXIS 70551, at *22-23. The court ruled that California law had historically protected sound recordings even after publication via the common law. Id. at *24-28. Reading that protection into the text of section 980(a)(2), the court concluded that the statute protected published pre-1972 recordings and granted Flo & Eddie a property right in the public performance of its sound recordings. Id. at *27-29. On the basis of that property right, the district court further held that Flo & Eddie’s claims for misappropriation, conversion, and unfair competition were legally sufficient for the purposes of the anti-SLAPP statute. Id. at *29. Pandora timely appealed. See DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1016 (9th Cir. 2013) (holding that an order denying a special motion to strike under California’s anti-SLAPP law is immediately appealable in federal court pursuant to the collateral order doctrine).

IY. The Need for Certification

Certification is warranted if there is no controlling precedent and the California Supreme Court’s decision could determine the outcome of a matter pending in our court. See Cal. R. Ct. 8.548(a). This appeal not only meets both criteria, but also presents an issue of significant public importance.

Indeed, the “significant and unresolved” nature of the issue prompted the United States Court of Appeals for the Second Circuit to certify a similar question to the New York Court of Appeals in Flo & Eddie’s case against Sirius XM. Flo & Eddie, 821 F.3d at 267. The Court of Appeals accepted the certified question, Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 27 N.Y.3d 1015, 32 N.Y.S.3d 576, 52 N.E.3d 240 (2016), and resolved it in view of the fact that its decision could have “extensive and far-reaching” consequences given the “many competing interests at stake,” Flo & Eddie, 28 N.Y.3d 583, 48 N.Y.S.3d 269, 70 N.E.3d 936.

Faced with “a complete judicial void” in Florida case law, the United States Court of Appeals for the Eleventh Circuit likewise certified similar questions to the Florida Supreme Court in another Flo & Eddie case against Sirius XM. See Flo & Eddie, Inc. v. Sirius XM Radix), Inc., 827 F.3d 1016, 1020 (11th Cir. 2016). The Florida Supreme Court has accepted the certified questions and set oral argument for later this year. See Scheduling Order, Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. SC16-1161 (Fla. Jan. 30, 2017).

We agree with our sister circuits that certification is the best way to proceed on these issues, especially in California. As an incubator of both musical talent and technological innovation, California has a significant interest in the appropriate resolution of the certified questions. Resolution of these questions will likely affect the state and industries within the state in a variety of ways, and is therefore best left to the California Supreme Court.

A.

No controlling precedent resolves the certified questions. Capitol Records, Inc. v. Erickson, 2 Cal.App.3d 526, 82 Cal.Rptr. 798 (1969) and A & M Records, Inc. v. Heilman, 75 Cal.App.3d 554, 142 Cal.Rptr. 390 (1977) predate the adoption of section 980(a)(2), and therefore cannot aid us in resolving the first certified question. Erickson and Heilman also address only common law liability for piracy, the unauthorized duplication and distribution of sound recordings for profit. Public performance was not at issue in either case, thereby rendering them unhelpful in resolving the second certified question as well. As such, there is no precedent, much less controlling precedent, from either the California appellate courts or the California Supreme Court to guide our court’s inquiry.

Flo & Eddie’s central argument is that California’s plain meaning rule for interpreting statutes resolves the first certified question. See, e.g., People v. Canty, 32 Cal.4th 1266, 14 Cal.Rptr.3d 1, 90 P.3d 1168, 1172-73 (2004). Applying the rule, Flo & Eddie contends that the “exclusive ownership” term in section 980(a)(2) allows copyright owners to exclude all unauthorized uses, including public performance. But the statute does not define “exclusive ownership” or “ownership.” And while undefined terms are given their ordinary meanings, as appropriate to the context, see Martinez v. Vaziri, 246 Cal.App.4th 373, 200 Cal.Rptr.3d 884, 891 (2016) (refusing to construe an undefined phrase in isolation “because as a matter of basic statutory interpretation, the words must be construed in context”), it could well be said that the “ordinary meaning” of “exclusive ownership” in the context of copyright is at the very heart of the dispute in this case.

That section 980(a)(2) includes an exception for cover artists does not make the meaning of “exclusive ownership” plain. The exception only establishes that the “ownership” rights granted by the statute do not include rights to control cover artists; it does not establish what “ownership” rights are included in the first instance. The canons of statutory interpretation are therefore insufficient to aid in the resolution of this case, and do not eliminate the need for clear guidance from California’s highest court.

Pandora maintains that Flo & Eddie’s sound recordings lost state copyright protection upon publication in the 1960s, and that the 1982 amendment adopting section 980(a)(2) did not resurrect copyright protection. But this argument depends on an interpretation of the 1947 versions of sections 980(a) and 983(a), which have likewise never been considered by the California Supreme Court. Accordingly, Flo & Eddie cites only off-point lower court eases and out-of-state authority for its counterargument that the divestiture-by-publication rule of the 1947 version of section 983(a) did not apply to sound recordings.

In Lone Ranger Television, Inc. v. Program Radio Corp., 740 F.2d 718 (9th Cir. 1984), as Pandora points out, we addressed a similar situation. There, we concluded that broadcast tapes of the Lone Ranger radio show leased to radio stations and sold to the public in the 1950s and 1960s had lost common law or state copyright protection upon general publication under section 983, despite its later repeal. Although binding precedent for our court, Lone Ranger was a case about piracy. It therefore does not help us resolve whether the California legislature intended to grant a right of public performance to owners of pre-1972 sound recordings when it explicitly extended copyright protection to sound recordings with the adoption of section 980(a)(2) in 1982. Nor does it resolve whether California’s common law of copyright guarantees a right of public performance, in addition to protecting against piracy.

B.

Resolving these questions will dispose of this appeal and determine the merits of Flo & Eddie’s underlying claims. The district court concluded that section 980(a)(2) granted owners of pre-1972 sound recordings a property right in the public performance of their recordings. On the basis of that property right, the district court further concluded that Flo & Eddie’s claims of misappropriation, conversion, and unfair competition were legally sufficient. If either section 980(a)(2) or California common law does provide an exclusive right of public performance, the district court’s ruling must be affirmed, and Flo & Eddie’s claims granted. If neither section 980(a)(2) nor California common law provides such a right, the district court’s ruling must be reversed, and the underlying-claims must be dismissed.

We therefore conclude that this case presents prime questions for the California Supreme Court to address. See Cal. R. Ct. 8.548(a). The answers given by the California Supreme Court will dispose of this appeal currently pending before the Ninth Circuit. We agree to accept the court’s answers.

V. Accompanying Materials

The clerk of this court is hereby directed to file in the California Supreme Court, under official seal of the United States Court of Appeals for the Ninth Circuit, copies of all relevant briefs and excerpts of record, and an original and ten copies of the request with a certification of service on the parties, pursuant to California Rules of Court 8.548(c), (d).

The panel will only resume control and jurisdiction of this case upon receiving a decision from the California Supreme Court or upon that court’s decision to decline to answer the certified questions. The parties shall file a joint report informing this court of whether the California Supreme Court has accepted the certified questions, after that determination is made. If the California Supreme Court accepts the certified questions, the parties shall file a joint status report to our court every six months after the date of acceptance.

IT IS SO ORDERED.

      . California courts have not defined “public performance.” Under current federal law, public performance means "to perform or display [a recording] at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered,” or "to transmit or otherwise communicate a performance or display of the work to ... the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the.same place or in separate places and at the same time or at different times.” 17 U.S.C. § 101.

      . Prior to filing this case, Flo & Eddie filed similar actions against online radio service Sirius XM in federal court in California, see Flo & Eddie Inc. v. Sirius XM Radio Inc., No. CV 13-5693 PSG, 2014 WL 4725382 (C.D. Cal. Sept. 22, 2014); in New York, see Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 821 F.3d 265 (2d Cir. 2016); and in Florida, see Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 827 F.3d 1016 (11th Cir. 2016). Sirius XM appealed adverse rulings in both the New York and Florida cases, after which the Second and Eleventh Circuits certified questions of state law to the New York Court 'of Appeals and Florida Supreme Court, respectively. The New York Court of Appeals recently answered the certified question, holding that New York's common law of copyright does not recognize an exclusive right of public performance for copyright holders. See Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 28 N.Y.3d 583, 48 N.Y.S.3d 269, 70 N.E.3d 936 (2016). As a result, the Second Circuit reversed the district court’s order denying summary judgment to Sirius XM and directed the district court to grant summary judgment and dismiss the case with prejudice. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 849 F.3d 14, 16-17 (2d Cir. 2017).

      . The 1976 Act became effective on January 1, 1978. 17 U.S.C. § 301(a).

      . Specifically, section 980(a)(2) grants "exclusive ownership” as against all persons except
      one who independently makes or duplicates another sound recording that does not directly or indirectly recapture the actual sounds fixed in such prior sound recording, but consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate the sounds contained in the prior sound recording.
      Cal. Civ. Code § 980(a)(2). In Sirius, the district court interpreted this language as an exception for artists creating "covers,” defined as "recording the song with new instrur ments.” Flo & Eddie, 2014 WL 4725382, at *5 ("In other words, ownership of a sound recording does not include the exclusive right to make 'covers' (i.e., recording the song with new instruments) ... so long as they produce the sounds independently rather than recapture the actual sounds in the copyrighted recording.”).

      ."The analysis of an anti-SLAPP motion ... involves two steps. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one 'arising from’ protected activity. If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim." Oasis W. Realty, LLC v. Goldman, 51 Cal.4th 811, 124 Cal.Rptr.3d 256, 250 P.3d 1115, 1120 (2011) (internal quotation marks and citation omitted); see also Hilton v. Hallmark Cards, 599 F.3d 894, 901-02 (9th Cir. 2010). "To satisfy the second prong, .... the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’ ” Oasis, 51 Cal.4th 811, 124 Cal.Rptr.3d 256, 250 P.3d at 1120. Here, the parties relied solely on the factual allegations in the complaint. Thus, the issues are presented as pure questions of law, and are therefore particularly suited for certification.
      Moreover, an answer to the certified questions in this case would resolve the merits of Flo & Eddie’s claims alleging violations of an exclusive right to public performance under both section 980(a)(2) and California common law. Thus, although the issue before our court is in the context of an appeal from the denial of an anti-SLAPP motion, a ruling on the certified questions would not only dispose of the appeal from the collateral order, but would also resolve the underlying claims.

      . In that case, the court held that copyright holders do not have a right of public performance under New York common law. Flo & Eddie, 28 N.Y.3d 583, 48 N.Y.S.3d 269, 70 N.E.3d 936. Accordingly, the Second Circuit directed the district court to grant summary judgment to Sirius XM and dismiss the case with prejudice. Flo & Eddie, 849 F.3d at 16-17.

      . The only California case that has touched on the issue is Capitol Records, LLC v. Sirius XM Radio, Inc., No. BC520981, 2014 WL 7150014 (Cal. Super. Ct. Dec. 5, 2014), a Los Angeles County Superior Court case. Seemingly confirming the lack of sufficient guidance from California appellate courts, the Capitol Records court issued a tentative ruling refusing to recognize a public performance right in a jury instruction only to reverse the ruling after the Central District of California reached the opposite conclusion in Sirius. The issue was never resolved, however, as the case later settled.

      . Flo & Eddie cites one case within our circuit, Capital Records, LLC v. Bluebeat, Inc., 765 F.Supp.2d 1198 (C.D. Cal. 2010). Otherwise, Flo & Eddie cites cases from New York, Metro. Opera Ass’n v. Wagner-Nickols Recorder Corp., 199 Misc. 786, 101 N.Y.S.2d 483 (1950); Capitol Records, Inc. v. Naxos of Am., Inc., 4 N.Y.3d 540, 797 N.Y.S.2d 352, 830 N.E.2d 250 (2005), from Florida, CBS, Inc. v. Garrod, 622 F.Supp. 532 (M.D. Fla. 1985), from Michigan, A & M Records, Inc. v. M.V.C. Distrib. Corp., 574 F.2d 312 (6th Cir. 1978), from Wisconsin, Mercury Record Prods. v. Econ. Consultants, Inc., 64 Wis.2d 163, 218 N.W.2d 705 (1974), and from Pennsylvania, Waring v. WDAS Broadcasting Station, Inc., 327 Pa. 433, 194 A. 631 (1937).

      . At oral argument, the parties focused on the meaning and impact of the out-of-state case RCA Mfg. Co. v. Whiteman, 114 F.2d 86 (2d Cir. 1940), and the duo of cases that were purported to "overrule” it: Capitol Records, Inc. v. Mercury Records, Corp., 221 F.2d 657 (2d Cir. 1955) and Metro. Opera, 199 Misc. 786, 101 N.Y.S.2d 483. In a recent decision, the New York Court of Appeals decisively resolved the dispute. The court held that Mercury Records did not overrule the underlying premise of Whiteman, and held that no right of public performance existed under New York common law copyright. See Flo & Eddie, 28 N.Y.3d 583, 48 N.Y.S.3d 269, 70 N.E.3d 936.

      . Our opinion acknowledged that this case was decided after section 980(a)(2) had been enacted and section 983 had been repealed. Lone Ranger, 740 F.2d at 725.


author: SCHROEDER, Circuit Judge:

text:
    The HOPI TRIBE, a federally recognized Indian Tribe, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Salt River Project Agricultural Improvement and Power District; Navajo Nation; Central Arizona Water Conservation District; Gila River Indian Community, Respondents-Intervenors.
    No. 14-73055
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 18, 2016, San Francisco, California
    Filed March 20, 2017

      Anne E. Lynch (argued) and Michael D. Goodstein, Hunsucker Goodstein PC, Washington, D.C.; David M. Waterman, Catherine Wright, and Karen Pennington, The Hopi Tribe, Kykotsmovi, Arizona; for Petitioner.
    Jennifer S. Neumann (argued), Attorney, Appellate Section; Daniel R. Dertke-, Attorney, Environmental Defense Section; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; for Respondent.
    Z.W. Julius Chen (argued), Akin Gump ' Strauss Hauer & Feld LLP, Washington, D.C.; Aaron M. Flynn, Norman W. Ficht-horn, and William L. Wehrum, Hunton & Williams LLP, Washington,'D.C.; for Respondents-Intervenors.
    Before: MARY M. SCHROEDER, STEPHEN S. TROTT, and JOHN B. OWENS, Circuit Judges.
   OPINION

SCHROEDER, Circuit Judge:

The Hopi Tribe petitions for review of the Environmental Protection Agency’s (“EPA”) federal implementation plan (“FIP”) under the Clean Air Act (“CAA’O for the Navajo Generating Station (“Station”) in Arizona. The station is operated by a consortium of utilities led by the Salt River Project and under a lease from the Navajo Nation that expires in 2019. It is a coal-fired plant that uses coal for which the Hopi Tribe receives royalties. The FIP was promulgated pursuant to the EPA’s Tribal Authority Rule that governs CAA requirements on tribal lands. The Hopi contend the Tribe was not adequately consulted about its interests before the plan was promulgated and object to a proposed closure of the Station in 2044.

Before us as well are petitions from environmentalists. They claim the continued operation of the Station harms their environmental interests. We deny the Hopi’s petition and we also deny the environmentalists’ petitions in a related opinion filed today. See Yazzie v. Environmental Protection Agency, 851 F.3d 960, Nos. 14-73100, 14-73101, 14-73102, 2017 WL 1046117 (9th Cir. 2017).

The background of this dispute is explained more fully in our accompanying opinion in Yazzie. This FIP resulted from the 1990 CAA amendments that expanded the CAA to combat regional haze. Clean Air Act, Amendments, Pub. L. N. 101-549, 104 Stat. 2399 (1990). A subject of particular concern in the operation of the Station is the production of haze that hinders clear views of the Grand Canyon. The Station is a major source of emissions that implementation plans promulgated pursuant to the CAA must reduce. The reductions must be made by identifying the best available retrofit technology (“BART”) and installing it or better technology, known as a BART alternative. 40 C.F.R. § 51.308(e); see also Cent. Ariz. Water Conservation Dist. v. EPA, 990 F.2d 1531, 1543 (9th Cir. 1993).

The EPA issued the final rule for the NGS in August 2014 after a process that took over five years, beginning with an Advance Notice of Proposed Rulemaking (“ANPRM”) in 2009. 74 Fed. Reg. 44,313 (Aug. 28, 2009). The EPA specifically notified the Hopi Tribe of the ANPRM, and had multiple meetings and telephone calls with Hopi Tribal representatives. The Hopi Tribe was invited to eight group consultation sessions in Arizona, where the Hopi had the option to request individual consultation sessions. The Tribe filed a comment. EPA issued a Notice of Proposed Rulemaking in February 2013. 78 Fed. Reg. 8,274 (Feb 5, 2013.) In October 2013, the EPA issued a Supplemental Proposed Rule and Notice of Public Hearings. 78 Fed. Reg. 62,509 (Oct. 22, 2013). The proposed Rule was developed by a group of stakeholders led by the utilities that operated the Station. The group had met as a Technical Working Group (“TWG”) that set an emissions cap for the future operation of the Station and required it be shut down in 2044 or when the cap was reached, whichever occurred first. The final rule, issued in 2014, was materially the same as the Supplemental Proposed Rule. 79 Fed. Reg. 46,514 (Aug. 8, 2014). The Hopi Tribe was not part of the TWG.

The pre-TWG discussions apparently were nonproductive because the interests of the Hopi were adverse to the goals of the CAA. The projected phasing out of the Station’s production and its eventual closure harm Hopi economic interests. Fifty percent of the people, including fifty-four percent of children, on the Hopi Reservation live in poverty; unemployment is around fifty percent; and thirty-five percent of homes lack a complete kitchen. Residents of the Hopi Tribe are forty times more likely than the average American to lack running water. The Station is responsible for some 1400 to 1900 Hopi jobs, about fifty to seventy percent of all employment on the Hopi Reservation.

The principal issue before us is whether the Hopi’s exclusion from the TWG negotiations violated a duty on the part of the government to consult with the Tribe. The United States has a general trust relationship with the Indian tribes. See Seminole Nation v. United States, 316 U.S. 286, 296, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942). The Hopi ask us to treat this as a duty to consult, stemming from the trust relationship, and binding on the United States as a single entity. No authority allows us to do that, however, and agencies are required to be named individually as parties to a lawsuit. Fed. R. App. P. 15(a)(2)(B), (C). The record shows that the EPA did, in fact, consult with the Hopi Tribe throughout the rulemaking process. The Tribe was invited to group consultations, there was a hearing on their reservation and all parties were aware at all times of the Hopi’s economic interests. Consultations took place before and.after EPA considered the TWG Agreement. Therefore, regardless of the scope of enforceability of any duty to consult on part of the EPA, the EPA surely complied.

While the EPA did not participate in the TWG negotiations, the Department of Interior (“DOI”) did. The DOI was familiar with the adverse impact of mine closures on Hopi interests. The Hopi, however, did not name the DOI as a party to this petition. Therefore, even if the DOI violated some independent duty to consult with the Hopi Tribe because the Tribe was excluded from the TWG negotiations, that issue is not properly before us in this case. To the extent the Hopi contend the trust relationship required the United States to put their interests above all others, we have rejected that position. See Gros Ventre Tribe v. United States, 469 F.3d 801, 811 (9th Cir. 2006) (holding that the United States does not have to regulate off-reservation resources in a manner consistent with a tribe’s best interests so long as it complies with general regulations and statutes).

The record also belies the Hopi’s contention that the EPA failed to analyze each of the fíve BART factors. Under the CAA, the EPA is required to analyze five factors when determining BART. 42 U.S.C. § 7491(g)(2). The EPA did so when determining BART for the NGS. It did not, however, analyze these factors when evaluating the TWG proposal. This was not contrary to law. By the CAA’s own terms, the five factors are required only for BART. BART alternatives, such as the TWG proposal, are governed separately by a regulation that requires them to achieve “greater reasonable progress” than BART. 40 C.F.R. § 51.308(e)(2); see also Yazzie. These regulations do not require that the BART factors be evaluated when analyzing a BART alternative. We have previously upheld the use of BART alternatives governed by regulation. See Cent. Ariz. Water Conservation Dist., 990 F.2d at 1543. Because the TWG proposal was an alternative to BART, there was no error in the EPA not analyzing the BART factors under the TWG alternative.

The Petition for Review is DENIED.