                                                                               FILED
                            NOT FOR PUBLICATION
                                                                               MAY 24 2017
                     UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No.   15-50326

              Plaintiff-Appellee,                 D.C. No.
                                                  2:13-cr-00541-RGK-1
 v.

EDUARDO MENDOZA SOLORIO, AKA                      MEMORANDUM*
Capone,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                        Argued and Submitted May 10, 2017
                               Pasadena, California

Before: WALLACE, CHRISTEN, and WATFORD, Circuit Judges.

      1. The district court did not abuse its discretion in denying Eduardo

Mendoza Solorio’s motion to exclude recordings of the confidential informant on

the basis of lack of consent. “In order to establish consent to taping of

conversations, it will ordinarily suffice for the government to show that [an]


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                            Page 2 of 4
informant engaged in [a] conversation knowing that it was being taped.” United

States v. Glickman, 604 F.2d 625, 634 (9th Cir. 1979). Here, the evidence shows

that the informant knew that his conversations with Solorio were being recorded.

In investigative reports, the agents described outfitting the informant with

recorders. The agents also conducted briefings and debriefings with the informant

before and after his conversations with Solorio. This is sufficient evidence of the

informant’s knowledge. Furthermore, Solorio did not provide evidence that the

government secured the informant’s consent through coercion or undue influence.

Even if the informant received leniency in exchange for his participation in the

investigation, or hoped that his wife would receive leniency, such a deal would not

undermine his consent. See United States v. Brandon, 633 F.2d 773, 777 (9th Cir.

1980).

      2. The district court also did not abuse its discretion in declining to respond

to two withdrawn jury notes. See United States v. Romero-Avila, 210 F.3d 1017,

1024 (9th Cir. 2000). When a jury note is withdrawn, a judge may reasonably

assume that the issue raised in the note has been resolved. See id. Here, the

district court took the additional step of verifying with the jury foreperson that the

jury no longer needed a response to either of the notes. In light of this verification,

the district court properly declined to respond to the notes.
                                                                           Page 3 of 4
      3. We assume without deciding that the district court erred by admitting

Special Agent O’Connor’s interpretations of drug jargon as lay opinion testimony,

but hold that any error was “more probably harmless than not.” See United States

v. Freeman, 498 F.3d 893, 905–06 (9th Cir. 2007). There was overwhelming

evidence of Solorio’s guilt in the form of the recorded conversations with the

confidential informant, video recordings of the sales from a camera installed in the

confidential informant’s car, the agents’ testimony about their surveillance of the

January 3, 2011 meeting and subsequent sales, and the forensic chemist’s

testimony about the purity and weight of the methamphetamine procured through

the controlled buy. In light of the record as a whole, we conclude that “the jury

was not substantially swayed by [any] error.” Id. at 905.

      4. Sufficient evidence supports the jury’s finding that the government did

not engage in sentencing entrapment. The evidence showed that the case agents

increased the quantity of drugs in the controlled buy because Solorio indicated that

the initial amount was “small” and because the agents belatedly received

permission to complete a larger buy. Because the agents had “legitimate

investigatory reasons” for increasing the drug quantity, the jury permissibly found

the absence of sentencing entrapment. United States v. Boykin, 785 F.3d 1352,

1362 (9th Cir. 2015).
            Page 4 of 4
AFFIRMED.
