                           NOT FOR PUBLICATION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.”
