                                                                            FILED
                           NOT FOR PUBLICATION                               FEB 20 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50115

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00351-ODW-7

  v.
                                                 MEMORANDUM*
CARLOS RIVERA, AKA Chino,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-50135

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00351-ODW-29

  v.

RAUL PRIETO, AKA Crook,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-50156

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00351-ODW-27

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
JESSICA MEDINA,

              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 January 8, 2015
                               Pasadena, California

Before: KOZINSKI, WARDLAW, and W. FLETCHER, Circuit Judges.

      In consolidated appeals, Carlos Rivera, Raul Prieto, and Jessica Medina

appeal their jury convictions arising out of activities connected with the Black

Angels, a Mexican Mafia-affiliated street gang operating in Ontario, California.

We affirm.

      Under 18 U.S.C. § 2518(1)(c), a wiretap affidavit must include “a full and

complete statement as to whether or not other investigative procedures have been

tried and failed or why they reasonably appear to be unlikely to succeed if tried or

to be too dangerous.” While “[e]ach wiretap application, standing alone, must

satisfy the necessity requirement,” United States v. Carneiro, 861 F.2d 1171, 1176

(9th Cir. 1988) (emphasis omitted), the nature of the conspiracy with which the

individual is allegedly involved and prior investigative work may inform the

determination of whether each individual investigation was adequate. See United

                                          2
States v. Garcia-Villalba, 585 F.3d 1223, 1229–30 (9th Cir. 2009); United States v.

Rivera, 527 F.3d 891, 898, 903 (9th Cir. 2008). The affidavit for Target Telephone

9 provided details regarding the range of traditional investigative techniques that

had already been used in investigating other members of the conspiracy, including

physical surveillance; the use of confidential informants; financial investigations; a

mail cover for the residence of the wife of a Mexican Mafia and Black Angels

member; the execution of a search warrant; parole searches; several pen registers

and toll record searches; two trash searches; and recorded jail calls. The affidavit

also discussed techniques targeting Rivera in particular, including two physical

surveillance attempts on May 26, 2009 and July 3, 2009; a search of telephone toll

records; and a search for recorded jail calls. We agree with the district court that

this affidavit was adequate. Although the trash search section of the affidavit

stated that Rivera’s address was unknown, this misstatement was immaterial. See

United States v. Ippolito, 774 F.2d 1482, 1486–87 (9th Cir. 1985). The district

court did not abuse its discretion when it concluded that a wiretap was reasonably

necessary to fulfill the purposes of the investigation and “develop an effective case

against those involved in the conspiracy.” Rivera, 527 F.3d at 902 (internal

quotation marks omitted).




                                           3
      A Department of Justice wiretap authorization “is facially sufficient if, on

the basis of the information that appears on its face, it could reasonably be believed

that it meets . . . the requirement that a duly empowered Justice Department official

authorize the application for the particular wiretap being sought.” United States v.

Staffeldt, 451 F.3d 578, 582 (9th Cir. 2006), as amended by 523 F.3d 983 (9th Cir.

2008). The authorization letter here was signed by a statutorily designated official

and correctly identified all of the subscriber information, with the result that a

reasonable jurist could compare the contents of the letter with the contents of the

application and conclude that it specifically authorized a wiretap on Target

Telephone 9.

      A defendant is entitled to a hearing under Franks v. Delaware, 438 U.S. 154

(1978), “if he can make a substantial preliminary showing that the affidavit

contained intentionally or recklessly false statements, and that the affidavit purged

of its falsities would not be sufficient to support a finding of probable cause.”

United States v. Meling, 47 F.3d 1546, 1553 (9th Cir. 1995) (internal quotation

marks and alterations omitted). “Mere negligence in ‘checking or recording the

facts . . .’ is not sufficient to warrant a Franks hearing.” United States v. Burnes,

816 F.2d 1354, 1358 (9th Cir. 1987) (quoting Franks, 438 U.S. at 170). Although

the government misstated in the trash search section of the affidavit that Rivera’s


                                           4
address was unknown, it provided the information elsewhere in the affidavit.

These circumstances suggest that the government did not intentionally conceal

Rivera’s address from the reviewing judge, but rather made a negligent mistake.

Medina accordingly failed to make the necessary showing.

      Prieto objects to the admission of testimony from Black Angels gang leader

David Navarro regarding the meaning of the term “bird” and argues that the

prosecution mischaracterized Navarro’s testimony in its closing argument.

However, Navarro’s testimony was admissible as a lay opinion supported by his

experience as the leader of the gang’s extortion activities and participation in

methamphetamine sales. See United States v. Martinez, 657 F.3d 811, 819 (9th

Cir. 2011); United States v. Freeman, 498 F.3d 893, 900 n.1, 904–05 (9th Cir.

2007). Further, the prosecutor’s argument that a coded conversation between

Rivera and Prieto referred to methamphetamine was reasonable because the

conversation was clearly about drugs and was followed by a delivery to Rivera of

methamphetamine. See United States v. Blueford, 312 F.3d 962, 968 (9th Cir.

2002). Finally, if there was any misstatement about Navarro’s testimony, it was

rendered harmless by the jury instructions, defense counsel’s objection, and the

prosecutor’s clarification. See United States v. Bracy, 67 F.3d 1421, 1431 (9th Cir.

1995).


                                           5
      Prieto argues that the government violated Brady v. Maryland, 373 U.S. 83

(1963), by impermissibly withholding jailhouse notes indicating that there was

another member of the Black Angels gang who went by the moniker “Crook.”

However, the notes to which Prieto refers are not necessarily exculpatory because

they appear to be addressed to at least four individuals. Police records did not

contain any monikers used by the man who was allegedly in possession of the

notes, and Prieto points to no other evidence from which the police could have

determined that the man was “Crook” rather than one of the other addressees. Nor

was Prieto prejudiced, as the evidence was of minimal relevance to the drug

conspiracy charge for which he was actually convicted and he had the opportunity

to use the evidence when he questioned the officer who found the notes.

      Prieto contends that the district court erred when it required him to subpoena

a law enforcement witness. However, Prieto presents no reason why he could not

have subpoenaed the witness and no authority for the proposition that it was an

abuse of discretion to require him to do so.

      The evidence is sufficient to allow a rational factfinder to convict Prieto

based on the distribution of methamphetamine. The recorded telephone calls

demonstrate Prieto’s willingness to sell half an ounce of a larger supply of some

controlled substance. Prieto never questioned Rivera regarding what type of drugs


                                          6
Rivera was expecting when he “re-upped,” allowing for a reasonable inference that

Prieto understood Rivera’s reference. This inference is bolstered by Navarro’s

testimony that Rivera had conducted methamphetamine deals from Prieto’s

mother’s house in Prieto’s presence and with Prieto’s knowledge, demonstrating

that Prieto knew that Rivera trafficked in methamphetamine. Finally, Rivera was

arrested with nearly half a pound of high-purity methamphetamine following his

conversation with Prieto. Because a conviction can be proven through

circumstantial evidence and inferences drawn from that evidence, United States v.

Moreland, 622 F.3d 1147, 1169 (9th Cir. 2010), and because a reasonable

factfinder could conclude that Prieto knew Rivera was distributing

methamphetamine and that Prieto was requesting half an ounce of

methamphetamine to sell, Prieto’s argument fails.

      In the case of a mistrial, the Speedy Trial Act requires that the government

retry a defendant “within seventy days from the date the action occasioning the

retrial becomes final.” 18 U.S.C. § 3161(e). If this provision is violated, the

district court must dismiss the indictment upon the defendant’s motion. Id. §

3162(a)(2). “Whether to dismiss with or without prejudice is left to the ‘guided

discretion of the district court.’” United States v. Lewis, 518 F.3d 1171, 1176 (9th

Cir. 2008) (quoting United States v. Taylor, 487 U.S. 326, 334–35 (1988)). The


                                          7
statute provides three factors, in addition to prejudice to the defendant, that the

district court must consider: “seriousness of the offense; the facts and

circumstances of the case which led to dismissal; and the impact of a reprosecution

on the administration of this chapter and on the administration of justice.” 18

U.S.C. § 3162(a)(2); Lewis, 518 F.3d at 1176. The district court is statutorily

bound to “carefully consider those factors as applied to the particular case and,

whatever its decision, clearly articulate their effect in order to permit meaningful

appellate review.” Taylor, 487 U.S. at 336. If the district court fails to make

specific factual findings and apply the Speedy Trial Act factors before dismissing

without prejudice, we may make the necessary findings so long as the record is

complete and the defendant has had “the opportunity to be heard on the question.”

United States v. Pena-Carrillo, 46 F.3d 879, 882 (9th Cir. 1995).

      Prieto is correct that the district court never explicitly considered the Speedy

Trial Act factors before ruling that the charge should be dismissed without

prejudice. However, because the court held a hearing on the issue, the record is

adequately developed, and none of the statutory factors support Prieto’s claim.

Accordingly, we affirm the district court’s decision to dismiss Count One without

prejudice.




                                           8
      Both Prieto and Medina argue that the district court erred by denying them

minor role reductions under U.S.S.G. § 3B1.2(b). Despite Prieto’s arguments that

he “was just an individual who was begging to become a participant, but had not

yet been accepted,” the prosecution presented evidence that Prieto was

affirmatively seeking to obtain drugs from Rivera, and the jury found that he

conspired to distribute at least five grams of actual methamphetamine or fifty

grams of methamphetamine mixture. Thus, the district court did not clearly err in

concluding that Prieto had not carried the burden of proving that he was

substantially less culpable than the other participants in the drug conspiracy. See

United States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006).

      The government presented evidence that Medina hid the keys to the car

containing the methamphetamine from the police, lied to the police about the car,

instructed the car’s owner to lie, and attempted to continue Rivera’s drug business

after his arrest. The district court therefore did not clearly err in finding that she

was not a minor participant in the drug conspiracy.

      Rivera and Prieto argue that their sentences were unreasonable under 18

U.S.C. § 3553(a). However, the court considered all of the § 3553(a) factors and

sentenced both Rivera and Prieto within the Guidelines range. See United States v.

Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). Although the district


                                            9
court could have “exercise[d] its discretion to impose a below-Guidelines

sentence,” neither Rivera nor Prieto present “unusual circumstances” to

demonstrate that the district court abused its discretion by refusing to do so. See

United States v. Carter, 560 F.3d 1107, 1120 (9th Cir. 2009); see also United

States v. Laurienti, 731 F.3d 967, 976 (9th Cir. 2013) (recognizing that within-

Guidelines sentences are reasonable “in the overwhelming majority of cases”

(internal quotation marks omitted)).

      Although a defendant’s Sixth Amendment right to a public trial may be

violated when the court orders the courtroom cleared of all family members, see

United States v. Rivera, 682 F.3d 1223, 1231–32 (9th Cir. 2012), the district

court’s comment that the defendants should not bring an infant to sentencing did

not demonstrate an intent to prevent any other family members, including children,

from attending.

      Finally, Rivera argues that the supervised release condition limiting his

association with other gang members impermissibly prohibits him from associating

with Prieto, with whom he has a family-like relationship. We have generally

approved supervised release conditions that prohibit individuals from associating

with gang members. See United States v. Johnson, 626 F.3d 1085, 1091 (9th Cir.

2010) (citing United States v. Vega, 545 F.3d 743, 749–50 (9th Cir. 2008); United


                                          10
States v. Soltero, 510 F.3d 858, 866–67 (9th Cir. 2007) (per curiam)). The district

court did not plainly err in imposing this condition.

      AFFIRMED.




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