United States v. Raymond Luna , 602 F. App'x 363 ( 2015 )

FILED
NOT FOR PUBLICATION FEB 11 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50368
Plaintiff - Appellee, D.C. No. 2:11-cr-00935-R-25
v.
MEMORANDUM*
RAYMOND LUNA, AKA Ray,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50385
Plaintiff - Appellee, D.C. No. 2:11-cr-00935-R-12
v.
ANTHEA ABAYARI, AKA Thea,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50414
Plaintiff - Appellant, D.C. No. 2:11-cr-00935-R-25
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
RAYMOND LUNA, AKA Ray,
Defendant - Appellee.
UNITED STATES OF AMERICA, No. 12-50470
Plaintiff - Appellee, D.C. No. 2:11-cr-00935-R-13
v.
ROBERT MEYER, AKA Stranger,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50601
Plaintiff - Appellee, D.C. No. 2:11-cr-00935-R-6
v.
WILFRED GARCIA, AKA Casper,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 13-50028
Plaintiff - Appellee, D.C. No. 2:11-cr-00935-R-15
v.
SAMOSET GALVAN, AKA Sam,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 13-50168
Plaintiff - Appellant, D.C. No. 2:11-cr-00935-R-16
v.
COREY GONZALES, AKA Chippy,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted February 3, 2015
Pasadena, California
Before: D.W. NELSON, BYBEE, and IKUTA, Circuit Judges.
This appeal consolidates Anthea Abayari’s, Samoset Galvan’s, Wilfred
Garcia’s, Robert Meyer’s, and Raymond Luna’s (Defendants-Appellants)
challenges to their convictions, and the government’s cross-appeal of the sentences
imposed on Luna and Corey Gonzales. We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(b). We affirm the convictions, vacate the sentences
imposed on Luna and Gonzales, and remand to the district court for re-sentencing.
1. The district court did not err in denying Garcia’s motion to suppress
evidence gathered from the search of Garcia’s cell phone. Detective Wolfe was
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aware that Garcia was subject to warrantless searches pursuant to California Penal
Code § 3067 at the time he searched Garcia’s cell phone. United States v. Caseres,
533 F.3d 1064, 1075–76 (9th Cir. 2008). Thus, the cell phone search was a
constitutional parole search.
2. The district court did not err in denying Defendants-Appellants’ motion to
suppress all wiretap evidence on the basis that the initial wiretap order lacked
particularity. When the wiretap order is considered as a whole, United States v.
Spillone, 879 F.2d 514, 517 (9th Cir. 1989), it only authorizes the interception of
conversations relating to the commission of specifically designated offenses listed
in the order, United States v. Carneiro, 861 F.2d 1171, 1179 (9th Cir. 1988).
3. The district court did not err in denying Defendants-Appellants’ motion to
suppress all wiretap evidence on the basis that the initial wiretap was not
necessary. The affidavit submitted in support of the wiretap application provides 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). The affidavit provides
case-specific explanations for why traditional investigative efforts were
unsuccessful and other traditional investigative tools would be unavailing in this
particular drug conspiracy investigation. United States v. Reed, 575 F.3d 900,
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908–10 (9th Cir. 2009). In light of the representations made in the affidavit, the
issuing judge did not abuse his discretion in finding the wiretap was necessary. Id.at 909–10; 18 U.S.C. § 2518(3)(c).
4. The district court did not err in denying Defendants-Appellants’ motion to
suppress all wiretap evidence on the basis that the initial wiretap order delegated
authority to unsupervised civilian monitors. Title III expressly authorizes
delegation of wiretap interception to civilian monitors. 18 U.S.C. § 2518(5). The
government submitted an affidavit establishing that the civilian monitors were
supervised adequately, and thus the wiretap interception was carried out in
accordance with 18 U.S.C. § 2518(5).
5. The government’s case at Garcia’s trial did not amount to constructive
amendment of the indictment. The crime charged and facts presented at trial were
not distinctly different from what was charged in the indictment. United States v.
Adamson, 291 F.3d 606, 614–15 (9th Cir. 2002). Moreover, Garcia argues that he
was convicted of participating in a conspiracy that was smaller than the one
charged in the indictment. Constructive amendment typically only applies to the
broadening of an indictment, United States v. Wilbur, 674 F.3d 1160, 1178 (9th
Cir. 2012), and is not applicable under the circumstances here.
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6. The government’s case at Garcia’s trial did not amount to a prejudicial
variance. The evidence presented at trial was sufficient to support the jury’s
finding that Garcia was a member of the conspiracy charged in the indictment.
United States v. Baxter, 492 F.2d 150, 158–61 (9th Cir. 1973).
7. The district court did not err in declining to give a multiple conspiracies jury
instruction because the requested instruction was not supported by the evidence
presented at Garcia’s trial. United States v. Anguiano, 873 F.2d 1314, 1317–18
(9th Cir. 1989).
8. The district court did not err in declining to give Garcia’s requested
accomplice credibility jury instruction. The district court gave alternative
instructions on accomplice credibility that “fairly and adequately” instructed the
jury on how to evaluate the credibility of the accomplice witness. United States v.
Hernandez-Escarsega, 886 F.2d 1560, 1570, 1573–75 (9th Cir. 1989).
9. The district court erred in overruling Garcia’s vouching objection at trial, but
ultimately the prosecutor’s vouching was a harmless error. Under the totality of
the circumstances at trial, including the mildness of the vouching and the
prosecutor’s self-correction, the district court’s instruction on accomplice
credibility, defense counsel’s effective challenges to the accomplice witness’s
credibility throughout trial, and the strength of the government’s case against
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Garcia, it is not more probable than not that the prosecutor’s vouching for the
accomplice witness materially affected the fairness of the trial. United States v.
Hermanek, 289 F.3d 1076, 1102 (9th Cir. 2002).
10. The district court erred in sentencing Luna to 36 months imprisonment and 5
years supervised release. Luna pled guilty to conspiring to distribute at least 5
grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii),
which triggers a statutory mandatory minimum sentence of 60 months
imprisonment. 21 U.S.C. §§ 841(b)(1)(B), 846. Although the government did not
immediately object to the below mandatory minimum sentence on the record, its
position that a 60-month mandatory minimum applied was made clear in Luna’s
plea agreement, the probation officer’s pre-sentencing report, both parties’
sentencing briefs, and the arguments at the hearing. Under the circumstances, the
government did not waive its objection, and the district court imposed an illegal
sentence. United States v. Wipf, 620 F.3d 1168, 1171 (9th Cir. 2010). We vacate
Luna’s sentence and remand to the district court to impose a sentence in
accordance with the statutory mandatory minimum.
11. The district court erred in sentencing Gonzales to 108 months imprisonment
and 10 years supervised release. Gonzales pled guilty to conspiring to distribute at
least 50 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1),
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(b)(1)(A)(viii), which triggers a statutory mandatory minimum sentence of 120
months imprisonment. 21 U.S.C. §§ 841(b)(1)(A), 846. After the district court
announced the 108-month sentence, the government immediately reminded the
district court on the record that the 120-month mandatory minimum applied. Thus,
the government did not waive its objection to the sentence, and under Wipf the
sentence imposed was illegal. 620 F.3d at 1171. We vacate Gonzales’s sentence
and remand to the district court to impose a sentence in accordance with the
statutory mandatory minimum.
For the foregoing reasons, the convictions of Abayari, Galvan, Garcia, Luna,
and Meyer are AFFIRMED; Luna’s and Gonzales’s sentences are VACATED;
and we REMAND to the district court to re-sentence Luna and Gonzales in
accordance with the applicable statutory mandatory minimum.
AFFIRMED, in part; VACATED and REMANDED, in part.
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