                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 24 2012

                                                                        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. 10-50207

                Plaintiff - Appellee,            D.C. No. 8:08-cr-00197-AG-2

  v.
                                                 MEMORANDUM *
YU SUNG PARK, AKA Sung Park,

                Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-50268

                Plaintiff - Appellee,            D.C. No. 8:08-cr-00197-AG-1

       v.

VO DUONG TRAN, AKA Duong Tran,

                Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Central District of California
                     Andrew J. Guilford, District Judge, Presiding

                          Argued and Submitted May 7, 2012
                                Pasadena, California

            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WARDLAW, PAEZ, and RAWLINSON, Circuit Judges.

      Yu Sung Park (Park) and Vo Duong Tran (Tran) appeal their convictions on

four counts: (1) conspiracy to commit a robbery affecting interstate commerce, in

violation of 18 U.S.C. § 1951(a); (2) interstate travel to commit a robbery with a

firearm, in violation of 18 U.S.C. § 924(g); (3) possession of a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A), (B);

and (4) possession of a machine gun, in violation of 18 U.S.C. § 922 (o)(1).




1.           When the district court “makes a definitive ruling” to admit evidence

      at trial, there is no need to renew the objection to preserve the claim. United

      States v. Sepulveda-Barraza, 645 F.3d 1066, 1070 (9th Cir. 2011), as

      amended; see also Fed. R. Evid. 103(b). Because the district court made a

      definitive ruling on the admissibility of the audio recordings, Tran preserved

      his right to appeal this issue. See id.




2.           A party may file a motion to suppress recorded conversations when

      there was an expectation of privacy and that individual’s privacy right was

      violated. See United States v. King, 478 F.2d 494, 506 (9th Cir. 1973).



                                           2
     Because Park was not a party to the recorded conversations, he had no

     expectation of privacy as to those conversations and, therefore, lacks

     standing to assert a Fourth Amendment challenge to the recordings. See id.




3.         When one party consents to recording a conversation, there is no

     Fourth Amendment violation as to him. See United States v Cosby, 500 F.2d

     405, 406 (9th Cir. 1974); see also United States v. White, 401 U.S. 745,

     751-52 (1971). Also, there is no expectation of privacy between a

     wrongdoer and a trusted accomplice who turns out to be an informer or

     undercover agent. See United States v. Mayer, 503 F.3d 740, 750 (9th Cir.

     2007), as amended; see also White, 401 U.S. at 752. Because the special

     agent provided the recording equipment for the cooperating source’s use

     during the investigation, it is a reasonable assumption that the cooperating

     source consented to the recordings. See Cosby, 500 F.2d at 406. In

     addition, a consent form signed by the cooperating source was admitted into

     evidence. This evidence was sufficient to establish consent and to avoid any

     Fourth Amendment violation. See id.




                                        3
4.         The government may lay a proper foundation for admission of

     recorded conversations when a government agent testifies at trial that the

     agent was privy to the recorded conversations, and can identify the voices on

     the recordings. See id. Because the government laid a proper foundation

     through the investigating agent’s testimony, the district court did not abuse

     its discretion when it admitted the audio recordings into evidence. See id.




5.         The Confrontation Clause of the Sixth Amendment guarantees the

     defendant the right to cross-examine government witnesses. See Slovik v.

     Yates, 556 F.3d 747, 752 (9th Cir. 2009). Although the government did not

     call the cooperating source as a witness, the court ordered the government to

     make the cooperating source available to the defense as a witness. There

     was no Confrontation Clause violation because the defense was given the

     opportunity to question the cooperating source for the benefit of the jury, but

     failed to do so. See id.




6.         Mere conversations between co-conspirators do not establish the

     furtherance of a conspiracy. Rather, the conversations must set the

     conspiracy in motion or further the objectives of the conspiracy. See United


                                         4
States v. Yarbrough, 852 F.2d 1522, 1535 (9th Cir. 1988). Other evidence in

the record may also establish a defendant’s participation in a conspiracy.

See United States v. Pena-Espinoza, 47 F.3d 356, 361 (9th Cir. 1995). We

need not focus on the statements at issue because we conclude that “other

evidence in the record” established the conspiracy, including the purchase of

bullet-proof vests, the exchange of text messages, and travel to the location

of the planned robbery. Thus, the audio recordings were properly admitted

as statements made in the furtherance of the conspiracy. See id.

      AFFIRMED.




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