                                                                            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                            NOT FOR PUBLICATION                              APR 23 2015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,


                                           4
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


                                          5
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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