United States v. Luis Tapia , 691 F. App'x 499 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAY 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-50217
Plaintiff-Appellee, D.C. No.
2:11-cr-01068-ODW-1
v.
LUIS MANUEL TAPIA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted May 10, 2017
Pasadena, California
Before: WALLACE, CHRISTEN, and WATFORD, Circuit Judges.
Luis Manuel Tapia appeals from his jury-trial conviction and judgment on
27 counts of an indictment that included multiple drug and firearm charges and a
charge that he conducted a continuing criminal enterprise in violation of 21 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
§ 848(a), (b), and (s). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.1
The district court may have erred by admitting inflammatory statements by
Tapia that were more prejudicial than probative and by failing to limit properly
some of the gang expert testimony. See Kennedy v. Lockyer, 379 F.3d 1041,
1055–56 (9th Cir. 2004); United States v. Takahashi, 205 F.3d 1161, 1165 (9th
Cir. 2000); cf. United States v. Rodriguez, 766 F.3d 970, 987 (9th Cir. 2014). But
any error was harmless because the facts showed Tapia was deeply involved in the
crimes charged and “no reasonable jury, on the properly-admitted evidence before
it, could have done other than convict.” See United States v. Echavarria-Olarte,
904 F.2d 1391, 1399 (9th Cir. 1990). Even if the district court granted Tapia’s
motion for a writ to compel the attendance of a confidential informant, and the
informant testified as Tapia hoped, the testimony would not defeat the
overwhelming evidence that Tapia conducted a continuing criminal enterprise and
committed the charged offenses. “[W]e will not reverse when ‘it is more probable
than not that [any] error[s] did not materially affect the verdict.’” United States v.
Vera, 770 F.3d 1232, 1240 (9th Cir. 2014) (quoting United States v. Gonzalez-
Flores, 418 F.3d 1093, 1099 (9th Cir. 2005)).
1
The parties are familiar with the facts, so we do not recite them here.
2
AFFIRMED.
3
FILED
United States v. Tapia, No. 15-50217
MAY 30 2017
WALLACE, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the majority’s judgment. But the majority states that the district
court “may have erred” by admitting Tapia’s inflammatory statements and by
failing to limit sufficiently the gang expert evidence, but that any error was
harmless. I write separately because, in my view, there was no error, harmless or
otherwise, and the majority is wrong to suggest there “may” be error. The district
court properly admitted Tapia’s inflammatory statements, as they were relevant to
the continuing criminal enterprise charge and were not more prejudicial than
probative. Furthermore, due to the fact that the government proved much of the
case through audio and video evidence of gang activity, the gang expert testimony
was needed to translate this evidence to the jury. Accordingly, I would hold that
the district court did not commit error in this case, and the majority is mistaken that
it “may have.”