                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 11 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50368

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00935-R-25

  v.
                                                 MEMORANDUM*
RAYMOND LUNA, AKA Ray,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50385

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00935-R-12

  v.

ANTHEA ABAYARI, AKA Thea,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50414

              Plaintiff - Appellant,             D.C. No. 2:11-cr-00935-R-25

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
RAYMOND LUNA, AKA Ray,

         Defendant - Appellee.



UNITED STATES OF AMERICA,         No. 12-50470

         Plaintiff - Appellee,    D.C. No. 2:11-cr-00935-R-13

 v.

ROBERT MEYER, AKA Stranger,

         Defendant - Appellant.



UNITED STATES OF AMERICA,         No. 12-50601

         Plaintiff - Appellee,    D.C. No. 2:11-cr-00935-R-6

 v.

WILFRED GARCIA, AKA Casper,

         Defendant - Appellant.



UNITED STATES OF AMERICA,         No. 13-50028

         Plaintiff - Appellee,    D.C. No. 2:11-cr-00935-R-15

 v.

SAMOSET GALVAN, AKA Sam,

         Defendant - Appellant.
UNITED STATES OF AMERICA,                           No. 13-50168

                 Plaintiff - Appellant,             D.C. No. 2:11-cr-00935-R-16

     v.

COREY GONZALES, AKA Chippy,

                 Defendant - Appellee.


                       Appeal from the United States District Court
                          for the Central District of California
                        Manuel L. Real, District Judge, Presiding

                         Argued and Submitted February 3, 2015
                                  Pasadena, California

Before: D.W. NELSON, BYBEE, and IKUTA, Circuit Judges.

          This appeal consolidates Anthea Abayari’s, Samoset Galvan’s, Wilfred

Garcia’s, Robert Meyer’s, and Raymond Luna’s (Defendants-Appellants)

challenges to their convictions, and the government’s cross-appeal of the sentences

imposed on Luna and Corey Gonzales. We have jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(b). We affirm the convictions, vacate the sentences

imposed on Luna and Gonzales, and remand to the district court for re-sentencing.

1.        The district court did not err in denying Garcia’s motion to suppress

evidence gathered from the search of Garcia’s cell phone. Detective Wolfe was


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aware that Garcia was subject to warrantless searches pursuant to California Penal

Code § 3067 at the time he searched Garcia’s cell phone. United States v. Caseres,

533 F.3d 1064, 1075–76 (9th Cir. 2008). Thus, the cell phone search was a

constitutional parole search.

2.    The district court did not err in denying Defendants-Appellants’ motion to

suppress all wiretap evidence on the basis that the initial wiretap order lacked

particularity. When the wiretap order is considered as a whole, United States v.

Spillone, 879 F.2d 514, 517 (9th Cir. 1989), it only authorizes the interception of

conversations relating to the commission of specifically designated offenses listed

in the order, United States v. Carneiro, 861 F.2d 1171, 1179 (9th Cir. 1988).

3.    The district court did not err in denying Defendants-Appellants’ motion to

suppress all wiretap evidence on the basis that the initial wiretap was not

necessary. The affidavit submitted in support of the wiretap application provides 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.” 18 U.S.C. § 2518(1)(c). The affidavit provides

case-specific explanations for why traditional investigative efforts were

unsuccessful and other traditional investigative tools would be unavailing in this

particular drug conspiracy investigation. United States v. Reed, 575 F.3d 900,


                                          4
908–10 (9th Cir. 2009). In light of the representations made in the affidavit, the

issuing judge did not abuse his discretion in finding the wiretap was necessary. Id.

at 909–10; 18 U.S.C. § 2518(3)(c).

4.    The district court did not err in denying Defendants-Appellants’ motion to

suppress all wiretap evidence on the basis that the initial wiretap order delegated

authority to unsupervised civilian monitors. Title III expressly authorizes

delegation of wiretap interception to civilian monitors. 18 U.S.C. § 2518(5). The

government submitted an affidavit establishing that the civilian monitors were

supervised adequately, and thus the wiretap interception was carried out in

accordance with 18 U.S.C. § 2518(5).

5.    The government’s case at Garcia’s trial did not amount to constructive

amendment of the indictment. The crime charged and facts presented at trial were

not distinctly different from what was charged in the indictment. United States v.

Adamson, 291 F.3d 606, 614–15 (9th Cir. 2002). Moreover, Garcia argues that he

was convicted of participating in a conspiracy that was smaller than the one

charged in the indictment. Constructive amendment typically only applies to the

broadening of an indictment, United States v. Wilbur, 674 F.3d 1160, 1178 (9th

Cir. 2012), and is not applicable under the circumstances here.




                                          5
6.    The government’s case at Garcia’s trial did not amount to a prejudicial

variance. The evidence presented at trial was sufficient to support the jury’s

finding that Garcia was a member of the conspiracy charged in the indictment.

United States v. Baxter, 492 F.2d 150, 158–61 (9th Cir. 1973).

7.    The district court did not err in declining to give a multiple conspiracies jury

instruction because the requested instruction was not supported by the evidence

presented at Garcia’s trial. United States v. Anguiano, 873 F.2d 1314, 1317–18

(9th Cir. 1989).

8.    The district court did not err in declining to give Garcia’s requested

accomplice credibility jury instruction. The district court gave alternative

instructions on accomplice credibility that “fairly and adequately” instructed the

jury on how to evaluate the credibility of the accomplice witness. United States v.

Hernandez-Escarsega, 886 F.2d 1560, 1570, 1573–75 (9th Cir. 1989).

9.    The district court erred in overruling Garcia’s vouching objection at trial, but

ultimately the prosecutor’s vouching was a harmless error. Under the totality of

the circumstances at trial, including the mildness of the vouching and the

prosecutor’s self-correction, the district court’s instruction on accomplice

credibility, defense counsel’s effective challenges to the accomplice witness’s

credibility throughout trial, and the strength of the government’s case against


                                          6
Garcia, it is not more probable than not that the prosecutor’s vouching for the

accomplice witness materially affected the fairness of the trial. United States v.

Hermanek, 289 F.3d 1076, 1102 (9th Cir. 2002).

10.   The district court erred in sentencing Luna to 36 months imprisonment and 5

years supervised release. Luna pled guilty to conspiring to distribute at least 5

grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii),

which triggers a statutory mandatory minimum sentence of 60 months

imprisonment. 21 U.S.C. §§ 841(b)(1)(B), 846. Although the government did not

immediately object to the below mandatory minimum sentence on the record, its

position that a 60-month mandatory minimum applied was made clear in Luna’s

plea agreement, the probation officer’s pre-sentencing report, both parties’

sentencing briefs, and the arguments at the hearing. Under the circumstances, the

government did not waive its objection, and the district court imposed an illegal

sentence. United States v. Wipf, 620 F.3d 1168, 1171 (9th Cir. 2010). We vacate

Luna’s sentence and remand to the district court to impose a sentence in

accordance with the statutory mandatory minimum.

11.   The district court erred in sentencing Gonzales to 108 months imprisonment

and 10 years supervised release. Gonzales pled guilty to conspiring to distribute at

least 50 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1),


                                          7
(b)(1)(A)(viii), which triggers a statutory mandatory minimum sentence of 120

months imprisonment. 21 U.S.C. §§ 841(b)(1)(A), 846. After the district court

announced the 108-month sentence, the government immediately reminded the

district court on the record that the 120-month mandatory minimum applied. Thus,

the government did not waive its objection to the sentence, and under Wipf the

sentence imposed was illegal. 620 F.3d at 1171. We vacate Gonzales’s sentence

and remand to the district court to impose a sentence in accordance with the

statutory mandatory minimum.

      For the foregoing reasons, the convictions of Abayari, Galvan, Garcia, Luna,

and Meyer are AFFIRMED; Luna’s and Gonzales’s sentences are VACATED;

and we REMAND to the district court to re-sentence Luna and Gonzales in

accordance with the applicable statutory mandatory minimum.

      AFFIRMED, in part; VACATED and REMANDED, in part.




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