United States v. Scott Bummer ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30046
Plaintiff-Appellee, D.C. No.
4:15-cr-00046-BMM-2
v.
SCOTT MITCHELL BUMMER, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Argued and Submitted July 11, 2018
Portland, Oregon
Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW,** District
Judge.
Scott Mitchell Bummer appeals his convictions for conspiracy, possession
with intent to distribute methamphetamine, and possession of a firearm in
furtherance of a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A); 21 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
§§ 841(a)(1), 846. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
1. Bummer’s due process rights were not violated by his absence from
the December 8, 2015 telephonic conference, at which he was represented by
counsel. First, the telephonic conference was not a critical stage in the proceedings
so as to require Bummer’s presence because it dealt primarily with the procedural
issue of how to conduct a Franks hearing. United States v. McChesney, 871 F.3d
801, 808–09 (9th Cir. 2017).1 And even if it were a critical stage, “[n]othing in the
record suggests that [Bummer’s] presence on the line during the call itself would
have contributed in any way to the proceeding’s fairness, and so no due process
violation occurred.” Id. at 809; see also United States v. Veatch, 674 F.2d 1217,
1225–26 (9th Cir. 1981).
2. Nor did the district court err in denying Bummer’s motion to suppress.
The district court found that Amato’s police interview did not indicate that he was
impaired in any way that would compromise the credibility of his statements. That
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“In determining whether a proceeding qualifies as a ‘critical stage,’ we consider
three factors: (1) whether ‘failure to pursue strategies or remedies results in a loss
of significant rights,’ (2) whether ‘skilled counsel would be useful in helping the
accused understand the legal confrontation,’ and (3) whether ‘the proceeding tests
the merits of the accused’s case.’” McChesney, 871 F.3d at 808 (quoting Hovey v.
Ayers, 458 F.3d 892, 901 (9th Cir. 2006)). More specifically, because Bummer
was represented by counsel, only the first and third factors could be relevant here.
Id.
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finding was not clearly erroneous. See, e.g., United States v. Elliott, 322 F.3d 710,
714 (9th Cir. 2003). And we agree with the district court that Amato’s
statements—together with the cell phone ping information, visual surveillance, and
the discovery of methamphetamine on Amato—were enough to support probable
cause, even after excising any potentially tainted information regarding informants.
See United States v. Barajas-Avalos, 377 F.3d 1040, 1058 (9th Cir. 2004).
AFFIRMED.
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