                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 14 2013

                                                                        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. 10-50558

              Plaintiff - Appellee,              D.C. No. 2:07-cr-01322-SJO-3

  v.
                                                 MEMORANDUM *
KIM VERNELL WALKER, AKA Plex,
AKA Seal A,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 11-50054

              Plaintiff - Appellee,              D.C. No. 2:07-cr-01322-SJO-1

  v.

ALPHONSO EUGENE FOSTER, AKA
Al Foster, AKA G-A1,

              Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
             Case No. 10-50558: Argued and Submitted February 7, 2013
                 Case No. 11-50054: Submitted February 8, 2013 **
                               Pasadena, California

Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.

      Kim Walker and Alphonso Foster (collectively “Defendants”) appeal their

jury convictions of various charges relating to their participation in a conspiracy to

manufacture and distribute PCP. We have jurisdiction pursuant to 28 U.S.C. §

1291, and we affirm.

      Because the parties are familiar with the facts, we repeat them only as

necessary to illuminate our decision.

      Defendants argue that the evidence from the March 19, 2007 wiretap was

invalid because the affidavit in support of the wiretap application contained

material misrepresentations and omitted evidence regarding a confidential

informant. We hold that any alleged misrepresentation in, or omission from, the

wiretap application was not material because even if the affidavit had disclosed the

full extent of the informant’s knowledge of the conspiracy and cooperation with

law enforcement, the issuing judge could not have denied the application for lack

of necessity. See United States v. Aviles, 170 F.3d 863, 869 (9th Cir. 1999),


        **
             The panel unanimously concludes that Case No. 11-50054, United
States v. Foster, is suitable for decision without oral argument. See Fed. R. App. P.
34(a)(2).

                                           2
amended by 216 F.3d 881 (9th Cir. 2000). The goal of the investigation was to

discover the full extent of the large-scale criminal conspiracy, and “[a] coup de

grace to the organization needed more than [the informant] could provide.” Id.

      The district court committed no error, much less plain error, by failing sua

sponte to exclude (1) a recorded conversation between Walker and Foster about

whether to kill an individual who could provide evidence against them and (2)

testimony that the informant first met Walker to discuss a potential credit card

scam. The recorded conversation was not subject to Federal Rule of Evidence

404(b) because it was “inextricably intertwined” with the crimes charged in the

indictment, see United States v. Lillard, 354 F.3d 850, 854 (9th Cir. 2003), and the

evidence of guilt was so overwhelming that a reference to a years-old fraudulent

scheme that never came to fruition could not have prejudiced Defendants. We find

no merit in Defendants’ argument -- raised for the first time on appeal -- that the

evidence should have been excluded under Rule 403.

      Nor did the district court commit plain error1 by not granting a mistrial on

the basis of the prosecutor’s question about criminal defendants’ Fifth Amendment


      1
              Defendants incorrectly assert that the prosecutor’s improper
commentary on their Fifth Amendment right not to testify is subject to review for
harmless error. Although Defendants objected to the line of questioning, they did
so on a different ground. Therefore, the appropriate standard of review is plain
error. See United States v. Bryan, 868 F.2d 1032, 1038 (9th Cir. 1989).

                                          3
right not to testify. The record does not suggest that the prosecutor “manifestly

intended to call attention” to Defendants’ failure to testify such that the jury could

have “naturally and necessarily” taken the question as a comment on the failure to

testify, United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir. 1988) (internal

quotation marks omitted), particularly given that the prosecutor asked the question

during the government’s case-in-chief -- no one yet knew whether Defendants

would testify. Moreover, Defendants’ substantial rights could not have been

affected because the district court instructed the jury that “[n]o presumption of

guilt may be raised . . . from the fact that the Defendant did not testify.”

      Defendants’ argument that the March 25, 2007 search warrants were invalid

under Federal Rule of Criminal Procedure 41 is “beyond the scope of our ability to

review for plain error” because Defendants did not move to suppress the search

warrants on that ground in the district court. United States v. Murillo, 288 F.3d

1126, 1135 (9th Cir. 2002); see Fed. R. Crim. P. 12(b)(3)(C). Defendants do not

argue that good cause exists for this failure, and the issue is therefore waived. See

Fed. R. Crim. P. 12(e).

      Finally, Walker’s argument that the district court should have imposed a

sentence below the statutory mandatory minimum is foreclosed by United States v.

Wipf, 620 F.3d 1168, 1169-71 (9th Cir. 2010).


                                            4
AFFIRMED.




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