United States v. Zarate ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 10, 2006
Charles R. Fulbruge III
Clerk
No. 04-50592
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY ZARATE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:04-CR-78-ALL
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Before Barksdale, Stewart, and Clement, Circuit Judges.
PER CURIAM:*
Tony Zarate appeals his jury conviction for distribution of
marijuana to a person under 21 years of age within 1000 feet of a
playground and distribution of marijuana within 1000 feet of a
playground in violation of 21 U.S.C. §§ 841(a)(1), 859(a), and
860(a). Zarate argues that the district court erred in not
dismissing sua sponte the indictment against him because a 16-
year-old confidential informant was used to complete a controlled
purchase of marijuana from him. Because Zarate did not raise
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-50592
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this issue in the district court, review is limited to plain
error. See United States v. Green, 324 F.3d 275, 281 (5th Cir.
2003).
Zarate has not shown that the district court’s not
dismissing sua sponte the indictment on this basis was clear or
obvious error. See id. The supervisory authority of the
district court to dismiss an indictment with prejudice should be
used to “1) implement a remedy for a violation of a recognized
right, 2) to preserve judicial integrity by insuring that the
conviction rests on appropriate consideration validly before the
jury, and 3) as a remedy designed to deter further illegal
conduct.” United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1349
(5th Cir. 1994). Zarate has not shown that the Government’s
actions in allowing the girl to participate in the controlled
purchase or in obtaining the indictment were clearly unlawful
under Texas or federal law. None of the cases on which Zarate
relies establish that the district court’s not dismissing sua
sponte the indictment due to the girl’s participation was clear
or obvious error. See Bank of Nova Scotia v. United States, 487
U.S. 250, 254 (1988); United States v. Strouse, 286 F.3d 767, 772
(5th Cir. 2002).
Zarate’s case is more similar to United States v. Ornelas-
Rodriguez, 12 F.3d at 1349, involving alleged outrageous
government conduct, an officer’s sexual activities with a female
codefendant, during the investigation of a criminal case. In
No. 04-50592
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Ornelas-Rodriguez, the court held that it was not necessary to
exercise its supervisory powers to dismiss the indictment; the
court found that the witness would have assisted the Government
without the sex, that there was no evidence that the Government
or the court sanctioned the officer’s actions, and that the
Government presented additional evidence obtained independently
from the sexual activities. Id. at 1349-50. Similarly, in the
instant case, it was not necessary for the district court to
exercise its supervisory power to dismiss the indictment because
the Government presented testimony that the girl had purchased
marijuana from Zarate three or four times during a three-week
period preceding the controlled purchase. Zarate has not shown
that the district court’s not dismissing the indictment sua
sponte based on the girl’s participation in the controlled
purchase was clear or obvious error. See Ornelas-Rodriguez, 12
F.3d at 1349-50.
AFFIRMED.