                                                                           FILED
                           NOT FOR PUBLICATION                             JUN 01 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10284

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00248-WBS-2

 v.
                                                 MEMORANDUM*
LARRY SIXTO AMARO, AKA Paqui,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 11-10285

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00248-WBS-3

 v.

GERARDO LOPEZ MORA, AKA Jerry,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 11-10312

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00248-WBS-6

 v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
JASON MICHAEL STEWART
HANSON, AKA Red,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 11-10313

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00248-WBS-4

 v.

ERNEST PAUL KILLINGER, AKA
Powder,

              Defendant - Appellant.


                  Appeal from the United States District Court
                       for the Eastern District of California
                William B. Shubb, Senior District Judge, Presiding

                        Argued and Submitted May 11, 2015
                             San Francisco, California

Before: O’SCANNLAIN, IKUTA, and N.R. SMITH, Circuit Judges.

      Larry Amaro, Ernest Killinger, Gerardo Mora, and Jason Stewart-Hanson

(collectively, “Appellants”) appeal their convictions for various drug-related

offenses. Killinger also appeals his sentence. We have jurisdiction pursuant to 18

U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.




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      The district court did not err in denying Appellants’ motion to suppress

wiretap evidence. The affidavit showed that the FBI contemplated or employed a

combination of at least eleven different traditional investigative techniques over the

course of a year before seeking a wiretap, and still had been unable to accomplish

its goals. Further, the affidavit explained in thorough and case-specific detail why

other investigative procedures would be too dangerous or unlikely to succeed in

developing an effective case against all the persons involved in the DTO

conspiracy. See 18 U.S.C. § 2518(1)(c); see also United States v. McGuire, 307

F.3d 1192, 1197 (9th Cir. 2002). The FBI’s investigative purpose to dismantle the

DTO conspiracy was not so general or vast “as to manufacture necessity in all

circumstances.” United States v. Blackmon, 273 F.3d 1204, 1211 (9th Cir. 2001).

The FBI was not required to continue using its confidential informants when they

had been unable to obtain information about the conspiracy’s source of supply for

narcotics or its money laundering methods. Nor was the FBI required to release

one of its confidential informants from jail in order to use him more effectively.

See United States v. Canales Gomez, 358 F.3d 1221, 1225–26 (9th Cir. 2004).

Finally, the FBI was not required to conduct additional surveillance or trash

searches before seeking a wiretap because “the wiretap statute does not mandate

the indiscriminate pursuit to the bitter end” of every traditional investigative


                                           3
procedure. See United States v. Bennett, 219 F.3d 1117, 1122 (9th Cir. 2000)

(internal quotation marks omitted).

      The district court did not err in denying Appellants’ request for a hearing

pursuant to Franks v. Delaware, 438 U.S. 154 (1978). Appellants failed to make a

threshold showing that any of the omissions they cited were “material to the

district court’s finding of necessity.” See United States v. Shryock, 342 F.3d 948,

977 (9th Cir. 2003).

      The district court did not abuse its discretion when it denied Appellants’

pretrial motions to exclude gang-related evidence. This evidence was, at

minimum, potentially relevant to explain the formation and purpose of the

conspiracy, see Fed. R. Evid. 403, and the district court could reasonably defer a

ruling on whether the probative value of particular evidence would be

“substantially outweighed by a danger of . . . unfair prejudice” until trial. See id.

      The district court did not err when it refused to give Stewart-Hanson’s

proposed buyer-seller jury instruction because the proposed instruction had no

foundation in evidence. See United States v. Moe, 781 F.3d 1120, 1127–28 (9th

Cir. 2015). At trial, the government presented significant “evidence of a prolonged

and actively pursued course of sales coupled with [Diaz’s] knowledge of and a

shared stake in [Stewart-Hanson’s] illegal venture.” See id. at 1125 (internal


                                           4
quotation marks omitted). None of the evidence Appellants point to suggests that

the sales between Diaz and Stewart-Hanson amounted to merely a “casual sale of

drugs, of a quantity consistent with personal use on the part of [Stewart-Hanson],

with no evidence of any subsequent (or planned) redistribution of purchased

drugs.” Cf. id. at 1125, 1128.

      Because Oak was working as a government agent, he was “not criminally

responsible for the commission of the offense,” see U.S.S.G. § 3B1.1 cmt. 1, and

the district court therefore erred in relying on Killinger’s supervision of Oak in

determining that Killinger was a “manager or supervisor” under § 3B1.1(b) of the

Sentencing Guidelines. Killinger raised this issue in a separate brief, in which he

argued that the district court erred in enhancing his sentence under § 3B1.1. The

government failed to file a response brief, an error that is sanctionable under Rule

31(c) of the Federal Rules of Appellate Procedure (providing that “[a]n appellee

who fails to file a brief will not be heard at oral argument unless the court grants

permission”). At oral argument, the government admitted that this failure to

respond was an oversight.

      Killinger brought this oversight to the government’s attention nearly a week

before oral argument in a letter filed pursuant to Rule 28(j) of the Federal Rules of

Appellate Procedure. Yet the government still failed to take any action to address


                                           5
and correct its mistake. Instead, the government waited until oral argument to

assert for the first time that the court should sua sponte determine that any error in

enhancing Killinger’s sentence was harmless, and cited supplemental authority

without previously serving it on the court and the opposing party, in direct

contravention of Rule 28(j) of the Federal Rules of Appellate Procedure.

      This conduct falls well below the standard we expect from the government.

We have long recognized that “[a]s an officer of the court, the prosecutor has a

heavy responsibility both to the court and to the defendant to conduct” fair

proceedings. See United States v. Escalante, 637 F.2d 1197, 1203 (9th Cir. 1980).

The prosecutor here failed to fulfill these responsibilities by neglecting to inform

both the court and the defendants of his arguments. The government’s arguments

are therefore waived. United States v. Vallejo, 237 F.3d 1008, 1026 (9th Cir.),

amended, 246 F.3d 1150 (9th Cir. 2001).

      Nevertheless, we have authority to consider harmlessness sua sponte in cases

where the harmlessness of the error is not reasonably debatable and the economy

of judicial resources would be served. See United States v. Brooks, 772 F.3d 1161,

1171 (9th Cir. 2014). These factors are present here. Reversal and further

litigation would not only be costly, but also futile because the harmlessness of the

district court’s error is certain in light of the ample evidence in the record that


                                            6
Killinger exercised the requisite control over others. See id.; see also United States

v. Whitney, 673 F.3d 965, 976 (9th Cir. 2012). The record establishes that

Killinger oversaw members of the conspiracy operating in various East Bay cities,

and that Isaac Benavidez was managing the cell phone store under Killinger’s

supervision in order to launder drug money and conduct drug operations. See

United States v. Gadson, 763 F.3d 1189, 1222 (9th Cir. 2014). The record also

establishes that Killinger exercised decision making authority over the allocation

of drug trafficking proceeds and procurement of narcotics, which are relevant

factors the district court can consider in determining Killinger’s role in the

conspiracy. See U.S.S.G. § 3B1.1 cmt. 4. We therefore affirm the district court’s

imposition of this sentencing enhancement.

      AFFIRMED.




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