                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 10, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-50592
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

TONY ZARATE,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                      USDC No. 7:04-CR-78-ALL
                        --------------------

Before Barksdale, Stewart, and Clement, Circuit Judges.

PER CURIAM:*

     Tony Zarate appeals his jury conviction for distribution of

marijuana to a person under 21 years of age within 1000 feet of a

playground and distribution of marijuana within 1000 feet of a

playground in violation of 21 U.S.C. §§ 841(a)(1), 859(a), and

860(a).   Zarate argues that the district court erred in not

dismissing sua sponte the indictment against him because a 16-

year-old confidential informant was used to complete a controlled

purchase of marijuana from him.   Because Zarate did not raise


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                              No. 04-50592
                                   -2-

this issue in the district court, review is limited to plain

error.   See United States v. Green, 324 F.3d 275, 281 (5th Cir.

2003).

     Zarate has not shown that the district court’s not

dismissing sua sponte the indictment on this basis was clear or

obvious error.     See id.   The supervisory authority of the

district court to dismiss an indictment with prejudice should be

used to “1) implement a remedy for a violation of a recognized

right, 2) to preserve judicial integrity by insuring that the

conviction rests on appropriate consideration validly before the

jury, and 3) as a remedy designed to deter further illegal

conduct.”   United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1349

(5th Cir. 1994).    Zarate has not shown that the Government’s

actions in allowing the girl to participate in the controlled

purchase or in obtaining the indictment were clearly unlawful

under Texas or federal law.     None of the cases on which Zarate

relies establish that the district court’s not dismissing sua

sponte the indictment due to the girl’s participation was clear

or obvious error.     See Bank of Nova Scotia v. United States, 487

U.S. 250, 254 (1988); United States v. Strouse, 286 F.3d 767, 772

(5th Cir. 2002).

     Zarate’s case is more similar to United States v. Ornelas-

Rodriguez, 12 F.3d at 1349, involving alleged outrageous

government conduct, an officer’s sexual activities with a female

codefendant, during the investigation of a criminal case.       In
                          No. 04-50592
                               -3-

Ornelas-Rodriguez, the court held that it was not necessary to

exercise its supervisory powers to dismiss the indictment; the

court found that the witness would have assisted the Government

without the sex, that there was no evidence that the Government

or the court sanctioned the officer’s actions, and that the

Government presented additional evidence obtained independently

from the sexual activities.   Id. at 1349-50.   Similarly, in the

instant case, it was not necessary for the district court to

exercise its supervisory power to dismiss the indictment because

the Government presented testimony that the girl had purchased

marijuana from Zarate three or four times during a three-week

period preceding the controlled purchase.   Zarate has not shown

that the district court’s not dismissing the indictment sua

sponte based on the girl’s participation in the controlled

purchase was clear or obvious error.   See Ornelas-Rodriguez, 12

F.3d at 1349-50.

     AFFIRMED.
