United States v. Eduardo Solorio , 691 F. App'x 435 ( 2017 )

FILED
NOT FOR PUBLICATION
MAY 24 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50326
Plaintiff-Appellee, D.C. No.
2:13-cr-00541-RGK-1
v.
EDUARDO MENDOZA SOLORIO, AKA MEMORANDUM*
Capone,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted May 10, 2017
Pasadena, California
Before: WALLACE, CHRISTEN, and WATFORD, Circuit Judges.
1. The district court did not abuse its discretion in denying Eduardo
Mendoza Solorio’s motion to exclude recordings of the confidential informant on
the basis of lack of consent. “In order to establish consent to taping of
conversations, it will ordinarily suffice for the government to show that [an]
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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informant engaged in [a] conversation knowing that it was being taped.” United
States v. Glickman, 604 F.2d 625, 634 (9th Cir. 1979). Here, the evidence shows
that the informant knew that his conversations with Solorio were being recorded.
In investigative reports, the agents described outfitting the informant with
recorders. The agents also conducted briefings and debriefings with the informant
before and after his conversations with Solorio. This is sufficient evidence of the
informant’s knowledge. Furthermore, Solorio did not provide evidence that the
government secured the informant’s consent through coercion or undue influence.
Even if the informant received leniency in exchange for his participation in the
investigation, or hoped that his wife would receive leniency, such a deal would not
undermine his consent. See United States v. Brandon, 633 F.2d 773, 777 (9th Cir.
1980).
2. The district court also did not abuse its discretion in declining to respond
to two withdrawn jury notes. See United States v. Romero-Avila, 210 F.3d 1017,
1024 (9th Cir. 2000). When a jury note is withdrawn, a judge may reasonably
assume that the issue raised in the note has been resolved. See id. Here, the
district court took the additional step of verifying with the jury foreperson that the
jury no longer needed a response to either of the notes. In light of this verification,
the district court properly declined to respond to the notes.
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3. We assume without deciding that the district court erred by admitting
Special Agent O’Connor’s interpretations of drug jargon as lay opinion testimony,
but hold that any error was “more probably harmless than not.” See United States
v. Freeman, 498 F.3d 893, 905–06 (9th Cir. 2007). There was overwhelming
evidence of Solorio’s guilt in the form of the recorded conversations with the
confidential informant, video recordings of the sales from a camera installed in the
confidential informant’s car, the agents’ testimony about their surveillance of the
January 3, 2011 meeting and subsequent sales, and the forensic chemist’s
testimony about the purity and weight of the methamphetamine procured through
the controlled buy. In light of the record as a whole, we conclude that “the jury
was not substantially swayed by [any] error.” Id. at 905.
4. Sufficient evidence supports the jury’s finding that the government did
not engage in sentencing entrapment. The evidence showed that the case agents
increased the quantity of drugs in the controlled buy because Solorio indicated that
the initial amount was “small” and because the agents belatedly received
permission to complete a larger buy. Because the agents had “legitimate
investigatory reasons” for increasing the drug quantity, the jury permissibly found
the absence of sentencing entrapment. United States v. Boykin, 785 F.3d 1352,
1362 (9th Cir. 2015).
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AFFIRMED.