State v. Parise

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

NICOLA PARISE, IV., Appellant.

No. 1 CA-CR 21-0333
FILED 8-18-2022

Appeal from the Superior Court in Maricopa County
No. CR 2017-001905-001
The Honorable Katherine Cooper, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Rebecca Jones
Counsel for Appellee

Law Office of Daniel Hutto, PLLC, Phoenix
By Daniel Hutto
Counsel for Appellant
 STATE v. PARISE
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.

C A M P B E L L, Judge:

¶1 Nicola Parise, IV appeals his convictions and sentences. He
challenges the superior court’s denial of his motion to suppress evidence
and its preclusion of two defense witnesses. For the following reasons, we
affirm.

BACKGROUND

¶2 The facts relevant to the issues raised on appeal are not
disputed. Based on evidence gathered by law enforcement during a lengthy
drug-trafficking investigation (the Investigation), the State charged Parise
with numerous offenses. The State also alleged aggravating circumstances
and that Parise had historical prior felonies.

¶3 A jury convicted Parise of one count of conspiracy to commit
sale or transportation of marijuana, one count of illegally conducting an
enterprise, one count of possession of marijuana for sale, five counts of sale
or transportation of marijuana, and two counts of money laundering in the
second degree. The jury also found one or more aggravating circumstances
for each count.

¶4 Upon finding Parise had two historical prior felony
convictions, the superior court sentenced him as a Category 3 offender to
concurrent terms totaling 11 years’ imprisonment. Parise timely appealed.

DISCUSSION

I. Denial of Motion to Suppress Wiretap Evidence

¶5 Parise challenges the superior court’s denial of his motion to
suppress evidence obtained through electronic wire surveillance. We
review the denial of a motion to suppress for an abuse of discretion. State v.
Mendoza-Ruiz, 225 Ariz. 473, 475, ¶ 6 (App. 2010).

2
 STATE v. PARISE
Decision of the Court

¶6 In November 2016, the Maricopa County Attorney signed a
notarized authorization (the Authorization) permitting four deputy county
attorneys to apply for a wiretap order for three named Investigation targets,
including Parise. The Authorization also allowed the designated deputy
county attorneys to apply for modifications, amendments, and extensions
to an initial wiretap order.

¶7 Shortly after the County Attorney issued the Authorization,
one of the designated deputy county attorneys submitted a wiretap
application (the Application) to the superior court, attaching a law
enforcement affidavit supporting the request. The superior court approved
the Application (Wiretap 492) and two subsequent amended applications
(as relevant to Parise, the amended applications added only one additional
phone line for surveillance).

¶8 In August 2017, the County Attorney signed a notarized
affidavit (the Affidavit) avowing that he “always personally review[s] the
facts and circumstances” of each case before authorizing any wiretap
applications. He also attested that he authorizes a wiretap application only
when probable cause supports the request and other investigative
procedures have failed.

¶9 Before trial, Parise moved to suppress the evidence obtained
through the wiretap. Relying primarily on Villa v. Maricopa County, 865 F.3d
1224 (9th Cir. 2017), he argued the Application violated federal law because
the County Attorney delegated his authority to apply for a wiretap to
deputy county attorneys without submitting an affidavit concurrently with
the Application indicating that he had personally reviewed the evidence
supporting the requested wiretap order. Parise further asserted that the
Affidavit―signed and submitted after the fact and on the heels of the Ninth
Circuit’s decision in Villa―did not cure the defect in the Application.

¶10 The superior court denied Parise’s motion to suppress. While
agreeing that the Application was facially defective when submitted, the
court reasoned that the Affidavit provided the requisite avowals and cured
the deficiency, rendering the Application substantially compliant with
federal law. The court also found that the evidence obtained via the wiretap
was admissible because the law enforcement officers conducting the
Investigation had acted in good faith.

¶11 “A wiretap is an ‘extraordinary investigative device’” that
poses a significant threat to privacy. State v. Salazar, 231 Ariz. 535, 536, ¶ 5
(App. 2013) (quoting United States v. Giordano, 416 U.S. 505, 527 (1974)). For

3
 STATE v. PARISE
Decision of the Court

this reason, “the United States Congress spelled out in elaborate and
generally restrictive detail the process by which wiretaps may be applied
for and authorized.” Id. (internal quotations and citations omitted). “As part
of this statutory scheme, Congress further provided that any state law
regarding the application for and authorization of wiretaps must also
comply with federal law.” Id. (citation omitted). Accordingly, states may
“adopt more restrictive [wiretap] legislation, or no legislation at all, but not
less restrictive legislation.” Id. (quoting State v. Verdugo, 180 Ariz. 180, 183
(App. 1993)).

¶12 Under federal law, only the “principal prosecuting attorney”
of a state, or “a political subdivision thereof,” may apply for a wiretap. 18
U.S.C. § 2516(2). And, in support of a wiretap application, the principal
prosecuting attorney must make certain declarations, as delineated by
federal statute. 18 U.S.C. § 2518(1) (requiring, among other things, a
“statement of the facts and circumstances relied upon by the applicant, to
justify his belief that an order should be issued”). The corresponding
Arizona law, in contrast, permits a principal prosecuting attorney―an
attorney general or a county attorney―to delegate the authority to apply for
a wiretap to a subordinate prosecuting attorney and allows the subordinate
prosecuting attorney to make the requisite avowals. A.R.S. § 13-3010(A),
(B).

¶13 When confronted with the incongruity between the federal
and Arizona laws governing wiretap applications, this court reconciled the
respective statutes by applying the general principle that substantial rather
than literal compliance with federal law is required. Salazar, 231 Ariz. at
536–37, ¶ 6; Verdugo, 180 Ariz. at 183–84. Under this framework, we
repeatedly upheld A.R.S. § 13-3010(A) as compliant with federal law.
Salazar, 231 Ariz. at 536–37, ¶ 6 (concluding Arizona’s wiretap statute
“imposes even more restrictive requirements” than federal law); Verdugo,
180 Ariz. at 183 (reasoning A.R.S. § 13-3010(A)’s requirement that a
subordinate prosecuting attorney “be specially designated” by a principal
prosecuting attorney upholds the intent of the federal statute “that wire and
oral communications be protected and that wiretap orders be issued only
according to uniform and consistent standards”).

¶14 The Ninth Circuit has since concluded, however, that A.R.S.
§ 13-3010(A)’s delegation provision―authorizing a designated subordinate
prosecuting attorney to make the requisite declarations in support of a
wiretap application―impermissibly conflicts with federal law. Villa, 865
F.3d at 1227, 1232. In reaching this conclusion, the Ninth Circuit explained
that the purpose of the federal law “is to ensure that a publicly responsible

4
 STATE v. PARISE
Decision of the Court

official subject to the political process personally approves a wiretap
application.” Id. at 1232 (internal quotation and citation omitted). While
recognizing that state law governs “the designation of the principal
prosecuting attorney . . . who is empowered to authorize interceptions,” the
Ninth Circuit reaffirmed that “any state statute authorizing wiretapping
must meet the minimum” federal standards. Id. (internal quotations and
citation omitted). Therefore, to substantially comply with federal law, a
principal prosecuting attorney must indicate, “as part of the application
process,” a personal familiarity with the facts and circumstances justifying a
“belief that [a wiretap] order should be issued.” Id. at 1234 (internal
quotation and citation omitted).

¶15 In a recent memorandum decision, this court addressed a
wiretap application’s compliance with federal law under substantially
similar factual and procedural circumstances and concluded that “Villa
d[id] not compel suppression.” State v. Ferguson, 1 CA-CR 20-0117, 2021 WL
2556571, at *5, ¶ 24 (Ariz. App. June 22, 2021) (mem. decision). Unlike the
deficient application at issue in Villa, “in which the principal prosecuting
attorney only affirmed general background knowledge about the criminal
investigation at issue,” in Ferguson, the County Attorney avowed in a post
hoc affidavit that he had personally reviewed and authorized the wiretap
application after determining that it satisfied the statutory requirements. Id.
(citing Villa, 865 F.3d at 1233–34).

¶16 Parise correctly notes that unlike the circumstances in
Ferguson, the Affidavit presented to cure the Application’s deficiency was
“generic” rather than responsive to this specific case. Id. at 1 CA-CR 20-
0117, at *4, ¶ 22. But this distinction does not negate Ferguson’s reasoning.
Like his declarations in the post hoc affidavit at issue in Ferguson, here, the
County Attorney avowed in the Affidavit that he reviews the facts and
circumstances of each case and determines that a wiretap is justified under
the relevant statutory considerations before delegating authority to seek a
wiretap to a designated deputy county attorney.

¶17 While the Villa court rejected the post hoc affidavit submitted
by the principal prosecuting attorney, in that case, it did so on the basis that
the affidavit, itself, was substantially deficient, not because the principal
prosecuting attorney’s avowals were made after rather than
contemporaneous with the submission of the application for a wiretap
order. Villa, 865 F.3d at 1234. As noted in Ferguson, the Villa court’s explicit
consideration of a post hoc affidavit implicitly suggests that “the affidavit
would have sufficed had it contained the required averments.” 1 CA-CR
20-0117, at *5, ¶ 25. In analogous circumstances, the use of a post hoc

5
 STATE v. PARISE
Decision of the Court

affidavit “to establish that the principal prosecuting attorney had
personally reviewed and authorized a wiretap application at the time it was
made” has been approved, “even when such avowals were absent from the
wiretap application itself.” Id. at ¶ 26 (citing United States v. Lyons, 740 F.3d
702, 721–22 (1st Cir. 2014) (noting that “[n]othing in [the federal statute]
requires that a wiretap application itself contain proof that it has been
reviewed by the principal prosecuting attorney”)); see also Verdugo, 180
Ariz. at 184 (affirming the denial of a motion to suppress wiretap evidence
based on post-hoc affidavits).

¶18 Because the County Attorney’s “after-the-fact affidavit
confirming that he personally reviewed and approved the wiretap
application before submission meets the substantive [federal] requirement
even though the certification did not appear on the face of the application,”
Ferguson, 1 CA-CR 20-0117, at * 5, ¶ 26, the superior court properly found
the Affidavit cured the Application’s facial defect. In other words, the
record reflects that the wiretap application procedures followed in this case
substantially complied with federal and state law.1

II. Preclusion of Defense Witness’s Testimony

¶19 Challenging the superior court’s finding that he failed to
comply with mandatory disclosure requirements, Parise argues the court
improperly precluded the testimony of two of his witnesses. We review a
superior court’s “assessment of the adequacy of disclosure for an abuse of
discretion.” State v. Roque, 213 Ariz. 193, 205, ¶ 21 (2006), abrogated on other
grounds by State v. Escalante-Orozco, 241 Ariz. 254, 267, ¶¶ 13–15 (2017). We
likewise review a superior court’s ruling on sanctions for an untimely
disclosure for an abuse of discretion and “will find an abuse of discretion
only when no reasonable judge would have reached the same result under
the circumstances.” State v. Naranjo, 234 Ariz. 233, 242, ¶ 29 (2014) (internal
quotation and citation omitted).

¶20 In its initial disclosure, the State identified the names and
addresses of numerous prospective witnesses. The State also stated that it
may call as a witness “[a]ny individual named or referred to in the
preliminary hearing transcript, grand jury transcript, police report, or other
[] disclosure.” In his notice of defenses, Parise failed to identify any
prospective witness by name but stated he might call any individual

1 Because the Affidavit cured the Application’s facial defect, we need
not address whether the evidence seized via the wiretap was otherwise
admissible under the good faith exception.

6
 STATE v. PARISE
Decision of the Court

“named or referred to in the State’s Disclosure” to testify. In his subsequent
disclosure, Parise again failed to name any potential witness but stated he
might call “[a]ny and all of the State’s witness[es] even if later withdrawn.”

¶21 Early in voir dire on the first day of trial, the superior court
read the prospective jurors a list of possible “witnesses” that included
Amber Tranel and Kendall Riddell.2 Three trial days later, during opening
statements, defense counsel told the impaneled jurors that the defense
would produce two witnesses―Tranel and Riddell―whom the State,
allegedly, refused to call to testify. According to defense counsel, the
witnesses would deny conspiring with Parise to traffic drugs and launder
money.

¶22 At the next break, the prosecutor objected to defense counsel
calling “two co[-]conspirators” to testify, arguing Parise had failed to
disclose Tranel and Riddell as potential witnesses under the procedural
rules. Defense counsel responded that the State had noticed Tranel and
Riddell as potential witnesses in its disclosure, and Parise had reserved the
right to call all potential State witnesses in his notice of defenses. When the
superior court asked whether defense counsel had subpoenaed Tranel and
Riddell, defense counsel implicitly acknowledged he had not, stating,
“they’re willing to come in and testify.” The court instructed the parties to
“check on [the] notice issue.”

¶23 On the next day of trial, the prosecutor moved, in writing, to
preclude defense counsel from calling Tranel and Riddell to testify,
asserting a “lack of notice and disclosure.” Attaching her initial and
supplemental disclosure notices, the prosecutor noted that she had never
named Tranel or Riddell as potential witnesses, though she acknowledged
that her pretrial disclosure had included boilerplate language stating she
might call “[a]ny individual named or referred to in the preliminary
hearing transcript, grand jury transcript, police report, or other State’s
disclosure.”

¶24 The following day, the superior court held a hearing on the
motion to preclude. The prosecutor argued that the procedural rules

2 Although the superior court identified the people named on the list
as persons who “may be witnesses in this case,” the uncontroverted record
reflects that the prosecutor submitted Tranel and Riddell’s names—not as
potential witnesses but as alleged co-conspirators—to ensure that none of the
jurors had any personal knowledge or relationship with them that may
influence the verdicts.

7
 STATE v. PARISE
Decision of the Court

require the named disclosure of witnesses “to prevent trial by ambush” and
asserted that allowing Tranel and Riddell to testify would necessarily cause
substantial delay because the court would need to appoint counsel for both
witnesses and the State would need to conduct additional interviews and
investigate possible impeachment evidence. In response, defense counsel
contested the prosecutor’s claim of prejudice and lack of notice, suggesting
that the prosecutor had already interviewed Tranel and Riddell. When
asked to provide an offer of proof for the witnesses’ prospective testimony,
defense counsel initially stated that “the one witness is just simply going to
testify” that certain seized drugs did not belong to Parise, but he then
acknowledged that he could not “speak for [Tranel and Riddell],” had not
interviewed them, and did not know whether they may invoke their
constitutional right against self-incrimination―“odds are they don’t
testify.” Defense counsel agreed that the court would need to appoint
counsel for both prospective witnesses. When permitted to respond, the
prosecutor denied that she or anyone from her office had “interviewed
these individuals” and reasserted that defense counsel failed to provide the
requisite “notice that they could be potential witnesses.”

¶25 After hearing from the parties, the superior court granted the
State’s motion to preclude Tranel and Riddell from testifying. The court
explained that the mere inclusion of “boilerplate language” referring to “all
witness[es] listed in a police report,” without any other supplemental
communication, fails to provide sufficient notice. The court also found the
prosecutor’s surprise “genuine.” Given that both parties agreed that Tranel
and Riddell would require appointed counsel to advise them before
testifying, the court further reasoned that the associated delay would
require a continuance, at a minimum, or possibly the declaration of a
mistrial.

¶26 Under the procedural rules governing disclosure, a
“defendant must provide . . . the name and address of each person, other
than the defendant, the defendant intends to call as a witness at trial, and
any written or recorded statement of the witness,” within “40 days after
arraignment, or 10 days after the State’s initial disclosure . . . whichever
occurs first.” Ariz. R. Crim. P. 15.2(c)(1), (d)(1). Applying this rule to the
challenged disclosures, Parise failed to identify Tranel and Riddell by name
as potential witnesses timely.

¶27 When confronted with an untimely disclosure, the opposing
party may move for sanctions. Ariz. R. Crim. P. 15.7(a); see also State v.
Ramos, 239 Ariz. 501, 504, ¶ 9 (App. 2016). Upon “determin[ing] the
significance of the information not timely disclosed, the violation’s impact

8
 STATE v. PARISE
Decision of the Court

on the overall administration of the case, the sanction’s impact on the party
and the victim, and the stage of the proceedings when the party ultimately
made the disclosure,” the superior court may order any appropriate
sanction, including “precluding or limiting a witness.” Ariz. R. Crim. P.
15.7(c)(1).

¶28 While “[t]he right to offer the testimony of witnesses, compel
their attendance, and present a defense is guaranteed” by the constitution,
the imposition of a preclusion sanction for a disclosure violation “does not
necessarily violate the Sixth Amendment.” State v. Delgado, 174 Ariz. 252,
257 (App. 1993). Before precluding a witness under Rule 15.7, the court
should consider: “(1) the importance of the evidence; (2) the surprise or
prejudice to the opposing party; (3) whether the violation was motivated
by bad faith; and (4) any other relevant factors.” Jimenez v. Chavez, 234 Ariz.
448, 452, ¶ 17 (App. 2014).

¶29 First, we note that nothing in the record reflects that the
witnesses’ testimony was vital to the defense. On the contrary, defense
counsel acknowledged in his offer of proof that he could not clearly
articulate the substance of the witnesses’ expected testimony or even
confirm that they would testify rather than invoke their constitutional right
against self-incrimination. See State v. Hernandez, 232 Ariz. 313, 322, ¶ 42
(2013) (explaining that “[a]n offer of proof is critical because it permits the
trial judge to reevaluate his decision in light of the actual evidence to be
offered, . . . and to permit the reviewing court to determine if the exclusion
affected the substantial rights of the party offering it”) (internal quotation
and citation omitted); see also State v. Towery, 186 Ariz. 168, 179 (1996)
(explaining a party claiming prejudice from the exclusion of evidence must,
“[a]t a minimum, [provide] an offer of proof stating with reasonable
specificity what the evidence would have shown”). Because the absence of
proof renders us unable to evaluate the importance of the precluded
evidence, we cannot discern whether Parise sustained any prejudice from
the sanction the court imposed.

¶30 Second, although Parise ardently denies that his late
disclosure surprised the State, the record supports the superior court’s
express finding that the prosecutor’s professed surprise was “genuine.”
Had defense counsel given the State timely notice that he intended to call
two of Parise’s alleged co-conspirators to testify, the record reflects that the
prosecutor would have requested the appointment of counsel on their
behalf before trial rather than after the parties’ opening statements. Given the
absence of any affirmative disclosure from defense counsel and the
prosecutor’s avowal that neither she nor anyone in her office had spoken

9
 STATE v. PARISE
Decision of the Court

with either witness at any time, the record supports the superior court’s
finding regarding a lack of notice. See State v. Gay, 214 Ariz. 214, 220, ¶ 17
(App. 2007) (explaining appellate courts defer to a superior’s court’s
assessment of a prosecutor’s credibility).

¶31 Third, turning to the nature of defense counsel’s conduct, his
complete failure to disclose any potential witnesses or seek the
appointment of counsel on Tranel and Riddell’s behalf demonstrates, at
best, a lack of due diligence. See Naranjo, 234 Ariz. at 243, ¶ 35 (concluding
the defendant’s “failure to exercise due diligence could reasonably be
construed as ‘willful misconduct,’” and therefore the superior court “did
not err in precluding [a defense witness’s] testimony on that basis”); State
v. Killean, 185 Ariz. 270, 271 (1996) (concluding that “an unexplained failure
to do what the rules require” may amount to “willful misconduct”).
Because defense counsel never provided an adequate explanation for his
failure to comply with Rule 15.2’s express requirements, the superior court
“could draw a justifiable inference of lack of good faith on [his] part.” State
v. Scott, 24 Ariz. App. 203, 205 (1975).

¶32 Finally, considering the availability of a less severe sanction,
the record supports the superior court’s finding that accommodating
Parise’s untimely disclosure would have required the appointment of
counsel and additional interviews midtrial. Because the late disclosure
“caused a significant disadvantage to the [S]tate” and substantial time had
already been devoted to impaneling the jury, “preclusion was an
appropriate remedy within the court’s discretion.” Ramos, 239 Ariz. at, 505,
¶ 13; see also Naranjo, 234 Ariz. at 244, ¶ 47 (holding appellate court will not
“disturb” a superior court’s decision to preclude evidence “as long as the
record demonstrates [the court] could have found lesser sanctions
insufficient”) (emphasis in original); Killean, 185 Ariz. at 271 (upholding a
preclusion ruling, though the superior court did not explicitly consider
other sanctions, because “[o]ther remedies could legitimately be found
inadequate” and declaring a mistrial or continuing the trial “would defeat
the important interest in efficient judicial administration”).

¶33 Analogizing the circumstances of this case to those in State v.
Recchia, 1 CA-CR 13-0475, 2015 WL 673782, at *5, ¶ 24 (Ariz. App. Feb. 17,
2015) (mem. decision), Parise nonetheless argues that the superior court
improperly precluded Tranel and Riddell from testifying. But Parise’s
reliance on Recchia is misplaced. In that case, defense counsel did not object
when the prosecutor announced on the second day of trial that he might
call a rebuttal witness―who was not identified by name in the State’s
pretrial disclosures―to counter the defendant’s claim that he had not

10
 STATE v. PARISE
Decision of the Court

willingly participated in the alleged crime. Id. at *3, ¶¶ 15–16. See Ariz. R.
Crim. P. 15.1(h) (requiring the State to "disclose the name and address of
each person” it intends to call as a rebuttal witness upon receiving the
defendant’s notice of defenses). Despite the lack of objection, the superior
court granted defense counsel additional time to interview the rebuttal
witness and review his plea agreement. Id. at *3, ¶ 17. After the jury
returned guilty verdicts, defense counsel objected, for the first time, to the
State calling the previously unnamed witness to testify in rebuttal and
moved for a mistrial and new trial. Id. at *4, ¶ 19. The superior court denied
defense counsel’s motions, observing that a “more specific disclosure
would have been preferable,” but concluding that “the disclosure was
adequate under the circumstances because the State had disclosed [the
rebuttal witness’s] statements.” Id. (emphasis added). On appeal, this court
likewise determined that the State’s disclosure was “sufficient” and further
concluded that even if “the State’s failure to specify [the rebuttal witness]
by name amounted to a disclosure violation, the superior court
appropriately addressed the alleged violation by granting defense counsel
an opportunity to review the police reports and plea agreement and to
interview [the rebuttal witness].” Id. at *4–5, ¶¶ 21, 22. In fact, this court
specifically noted that nothing in the record suggested “the alleged
nondisclosure caused surprise” or otherwise prejudiced the defendant. Id.
at *5, ¶ 23.

¶34 Unlike the circumstances in Recchia, in this case, the
prosecutor promptly objected to defense counsel’s assertion that he would
call undisclosed witnesses to testify. And, unlike the State’s disclosures in
Recchia, here, defense counsel provided no statements for Tranel and
Riddell in his pretrial disclosures, supporting the superior court’s finding
that the late disclosure “genuine[ly]” surprised the prosecutor. As stated,
when asked to provide an offer of proof, defense counsel acknowledged
that he had not interviewed the witnesses and could not provide any
specificity regarding their prospective testimony. Accordingly, Recchia is
readily distinguishable.

¶35 In sum, considering the relevant factors―Parise’s failure to
establish the importance of the excluded evidence to his defense, the
surprise to the State, defense counsel’s failure to provide any justification
for his noncompliance with the disclosure requirements, and the significant
delay accommodation of the late disclosure would likely cause―the
superior court did not abuse its discretion by precluding Tranel and Riddell
from testifying under Rule 15.7. See State v. Gutierrez, 121 Ariz. 176, 181
(App. 1978) (upholding the preclusion of a defense witness’s testimony as
a discovery sanction, despite noting that less stringent sanctions may have

11
 STATE v. PARISE
Decision of the Court

been warranted, given the defendant’s failure to demonstrate resulting
prejudice).

CONCLUSION

¶36 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

12