United States v. Lopez , 427 F. App'x 561 ( 2011 )

FILED
NOT FOR PUBLICATION APR 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 06-50611
Plaintiff - Appellee, D.C. No. CR-04-00262-EHC-13
v.
MEMORANDUM *
RANFERIS LOPEZ, aka Zexto Patin
Ayala; et al.,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Submitted April 11, 2011 **
Pasadena, California
Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.
Ranferis Lopez (“defendant”) appeals his jury conviction for conspiracy to
possess with intent to distribute a controlled substance in violation of 21 U.S.C.
§§ 846, 841(a)(1), possession with intent to distribute a controlled substance in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violation of 21 U.S.C. § 841(a)(1), and carrying a firearm during and in relation to
a drug trafficking crime in violation of 18 U.S.C. § 924(c). We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
Defendant first argues that his rights under the Confrontation Clause were
violated because of improper limitations on the cross-examination of Officer
Bolon. When a defendant fails to raise a Confrontation Clause objection in the
district court, we review for plain error. United States v. Hagege, 437 F.3d 943,
956 (9th Cir. 2006). In this case, the defense cross-examined Officer Bolon at
length regarding the circumstances of the traffic stop. Defendant was not
precluded from addressing prior inconsistent statements or any other relevant
matter. The district court only precluded defendant from litigating a suppression
motion in front of the jury. This did not constitute error, let alone plain error.
Defendant also argues for the first time on appeal that the government
violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), by failing to
produce Officer Bolon’s arrest report and his testimony at a state court preliminary
hearing. We review Brady claims that were not raised before the district court for
plain error. United States v. Guzman-Padilla, 573 F.3d 865, 890 (9th Cir. 2009).
The government produced Officer Bolon’s arrest report, and defendant utilized the
report to cross-examine Officer Bolon at trial. Defendant was not prejudiced by
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any delay. See United States v. Alvarez, 86 F.3d 901, 905 (9th Cir. 1996). There
was also no plain error with respect to the transcript of the preliminary hearing in
state court. Defendant does not identify any material inconsistent statements in the
prior testimony, and there is no showing that the government had knowledge of
and access to the records in the state court proceeding. See United States v.
Shryock, 342 F.3d 948, 983–84 (9th Cir. 2003).
Finally, defendant argues that the district court failed to rule on his joinder in
co-defendant Beltran-Garcia’s wiretap suppression motion and that the wiretap
evidence against defendant should have been suppressed because the affidavit
supporting the wiretap application did not demonstrate necessity. In a minute
order on August 24, 2004, the district court ruled on Beltran-Garcia’s motion to
suppress and defendant’s joinder, finding that both Beltran-Garcia and defendant
lacked standing. We review the district court’s legal conclusion on standing de
novo, and we review the findings of fact related to this conclusion for clear error.
United States v. Sarkisian, 197 F.3d 966, 986 (9th Cir. 1999). A “defendant may
move to suppress the fruits of a wire-tap only if . . . he was a participant in an
intercepted conversation[] or if such conversation occurred on his premises.”
United States v. King, 478 F.2d 494, 506 (9th Cir. 1973) (citation omitted).
Defendant’s declaration did not establish that he was a participant in any
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conversation in which Beltran-Garcia was intercepted. Accordingly, the district
court did not err in concluding that defendant lacked standing to challenge the
intercepted conversations that were the subject of Beltran-Garcia’s motion.
Furthermore, there was no abuse of discretion when the issuing judge approved the
application of September 30, 2003, for the interception of wire communications
based upon a finding of probable cause and necessity. See United States v.
Canales Gomez, 358 F.3d 1221, 1224–26 (9th Cir. 2004).
All motions currently pending before the court are hereby denied.
AFFIRMED.
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