United States v. Ghermon Tucker

FILED
NOT FOR PUBLICATION APR 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10568
Plaintiff - Appellee, D.C. No. 4:11-cr-01013-RCC-
HCE-7
v.
GHERMON LATEKE TUCKER, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding
Argued and Submitted March 10, 2015
San Francisco, California
Before: WALLACE, M. SMITH, and WATFORD, Circuit Judges.
Ghermon Lateke Tucker appeals from his conviction following a jury trial
for conspiring to possess cocaine with the intent to distribute, in violation of 21
U.S.C. § 846, and for possessing a firearm in furtherance of a drug trafficking
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
crime, in violation of 18 U.S.C. § 924(c)(1). We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
Tucker did not raise his objections in the district court regarding the audio
recording of the February 4 meeting and the transcripts, so we review for plain
error. United States v. Hieng, 679 F.3d 1131, 1135 (9th Cir. 2012). The district
court did not plainly err in allowing the recording and the translated transcripts to
be admitted into evidence. The unintelligible portions of the recording were not
substantial, and any allegations of possible inaccuracies in the translation are
conclusory. United States v. Abonce-Barrera, 257 F.3d 959, 963–64 (9th Cir.
2001). Tucker’s counsel was given adequate opportunity to identify inaccuracies in
the translation and cross-examine each of the language analysts who performed the
translation. United States v. Tisor, 96 F.3d 370, 376–77 (9th Cir. 1996).
Tucker does not explain why this court’s precedents regarding replay of trial
testimony and re-reading of trial transcripts should apply to a pre-trial audio
recording and the transcripts thereof. Regardless, any error was harmless even
under the precedents cited by Tucker because there was significant additional
evidence tying Tucker to the February 4 meeting and to the conspiracy generally,
including the confidential informant’s testimony, the presence of Tucker’s vehicle
outside the meeting, the records of phone calls between Tucker and the co-
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conspirators, and Tucker’s involvement on the day of the planned home invasion.
United States v. Stinson, 647 F.3d 1196, 1218 (9th Cir. 2011).
There is no plausible argument that the translation of the content of the audio
recording into English required a court-certified translator under the Court
Interpreters Act, 28 U.S.C. § 1827. The Act only requires a certified interpreter for
translation from one language to another when “a party . . . or a witness who may
present testimony in [a] judicial proceeding[] . . . speaks only or primarily a
language other than the English language,” id. § 1827(d)(1), and all of the parties
and witnesses in this case spoke English. Cf. United States v. Bailon-Santana, 429
F.3d 1258, 1260 (9th Cir. 2005) (“translations for criminal defendants and
witnesses who are not fluent in English are normally provided by certified
experts”).
The statements to which Tucker objects on Confrontation Clause grounds
were all statements made unwittingly to a government informant, so they are
clearly nontestimonial and the Confrontation Clause does not apply. Davis v.
Washington, 547 U.S. 813, 825 (2006).
We review de novo the constitutionality of pretrial identification procedures.
United States v. Montgomery, 150 F.3d 983, 992 (9th Cir. 1998). The district court
did not err in allowing the confidential informant to identify Tucker because even
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an unnecessarily suggestive identification procedure does not violate the
defendant’s due process rights if “under the ‘totality of the circumstances’ the
identification was reliable.” Neil v. Biggers, 409 U.S. 188, 199 (1972). The Biggers
factors indicate that the identification was reliable, see, e.g., Manson v. Brathwaite,
432 U.S. 98, 114–16 (1977) (holding identification reliable where the identifying
police officer was “not a casual or passing observer” but rather “knew that his
claimed observations would be subject later to close scrutiny and examination at
any trial”); United States v. Field, 625 F.2d 862, 870 (9th Cir. 1980) (the witness
“had an excellent opportunity to view the bank robber, being only two to three feet
away from him for a full minute”), especially in light of the informant’s correct
identification of the other participants in the meeting.
An allegation of a violation of Confrontation Clause rights under Bruton v.
United States, 391 U.S. 123 (1968), is reviewed de novo, United States v. Mitchell,
502 F.3d 931, 965 (9th Cir. 2007), while a district court’s denial of a motion for
severance is reviewed for abuse of discretion, United States v. Mayfield, 189 F.3d
895, 899 (9th Cir. 1999). The co-defendant statement that Tucker challenges as a
Bruton violation was not a confession, as Tucker himself admitted before the
district court. Nor did the statement inculpate Tucker, since there were two other
passengers in the vehicle who could have been carrying the Glock. As a result,
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Bruton does not apply, 391 U.S. at 123–24, and the district court did not abuse its
discretion in denying Tucker’s motion to sever.
The district court’s rulings regarding alleged violations of due process rights
under Brady v. Maryland, 373 U.S. 83, 87 (1963), are reviewed de novo, United
States v. Ross, 372 F.3d 1097, 1107 (9th Cir. 2004). The prosecution did not
violate Brady because the information about the informant’s prior arrest was
disclosed and the prosecution did not have the informant’s tax returns. United
States v. Bryan, 868 F.2d 1032, 1036–37 (9th Cir. 1989).
The district court’s rulings regarding alleged prosecutorial misconduct are
reviewed for abuse of discretion. United States v. Reyes, 660 F.3d 454, 461 (9th
Cir. 2011). The district court did not abuse its discretion in denying Tucker’s
motion for a new trial based on alleged prosecutorial misconduct because there is
no indication that the prosecutor’s comments were specifically designed to inflame
the jury. United States v. Koon, 34 F.3d 1416, 1444 (9th Cir. 1994), rev’d in part
on other grounds, 518 U.S. 81 (1996).
Any Alleyne error at Tucker’s sentencing was harmless. See United States v.
Carr, 761 F.3d 1068, 1082–83 (9th Cir. 2014).
The district court’s rulings on the sufficiency of the evidence in support of
the conspiracy conviction are reviewed de novo. United States v. Tucker, 641 F.3d
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1110, 1118 (9th Cir. 2011). The evidence presented at trial, including Tucker’s
conversation with his co-conspirators and the confidential informant at the
February 4 meeting and the phone records of the extensive communications
between Tucker and his co-conspirators, was sufficient that a rational trier of fact
could have convicted Tucker of conspiracy to possess cocaine with the intent to
distribute in violation of 21 U.S.C. § 846. United States v. Flores-Blanco, 623 F.3d
912, 922–23 (9th Cir. 2010).
Based on the evidence presented at trial, no jury could have found that
Tucker conspired only with the confidential informant. As a result, the district
court’s response to the jury question regarding members of the conspiracy cannot
have been erroneous under the standard set forth in United States v. Escobar de
Bright, 742 F.2d 1196, 1199–1200 (9th Cir. 1984).
AFFIRMED.
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