FILED
NOT FOR PUBLICATION JUL 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10298
Plaintiff - Appellee, D.C. No. 1:11-cr-00052-MCE-3
v.
MEMORANDUM*
BOUNSOU VORASANE,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-10299
Plaintiff - Appellee, D.C. No. 1:11-cr-00052-MCE-4
v.
KAY VIENGKHAM,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted June 11, 2014**
San Francisco, California
Before: O’SCANNLAIN and BEA, Circuit Judges, and HAYES, District Judge.***
Defendants Bounsou Vorasane and Kay Viengkham appeal their jury
convictions for conspiracy to cultivate, distribute, and possess with the intent to
distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846.
(1) Defendants first argue that the district court erred in failing to require the
disclosure of portions of a search warrant affidavit which were redacted to protect
the identity of a confidential informant. We review the district court’s decision to
protect the identity of the confidential informant for an abuse of discretion, United
States v. Napier, 436 F.3d 1133, 1136 (9th Cir. 2006), and affirm. The district
court denied Defendants’ discovery motion for an unredacted copy of the search
warrant affidavit, as well as Defendants’ “revised motion for [an] ex parte, in
camera hearing to examine the informant and affiant,” concluding that Defendants’
failed to make a “substantial preliminary showing” of falsehood by the affiant, as
required by United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983). On
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William Q. Hayes, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
2
appeal, Defendants have failed to make any showing of falsehood by the affiant, let
alone a “substantial preliminary showing.” We therefore hold that the district court
did not err in denying the disclosure of the redacted portions of the search warrant
affidavit.
(2) Next, Defendants argue that the district court erred in denying
Defendants’ motion to suppress the evidence seized from the marijuana grow
house pursuant to the search warrant. After reviewing the unredacted search
warrant affidavit in camera, the district concluded that “the unredacted portions
show certainly the basis for the trustworthiness [of the confidential informant].”
On appeal, Defendants claim the search warrant lacked probable cause to support
the search of the marijuana grow house because (1) the information was stale and
(2) the search warrant lacked indicia of reliability as to the information conveyed
by the confidential informant. Regarding Defendants’ staleness argument, the
government correctly asserts that this argument is waived because it was not raised
below. See Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th Cir. 2000).
Moreover, after reviewing the unredacted search warrant affidavit in camera, we
conclude that the information was not stale. Our in camera review of the
unredacted search warrant affidavit also confirms that independent police
investigatory work corroborated the confidential informant’s tip “to such an extent
3
that it supports both the inference that the [confidential informant] was generally
trustworthy and that he made his charge on the basis of information obtained in a
reliable way.” Illinois v. Gates, 462 U.S. 213, 268 (1983) (internal quotation
marks omitted). As a result, the district court did not err in denying Defendants’
motion to suppress the evidence because the Superior Court judge issuing the
search warrant “had a substantial basis for . . . conclud[ing] that probable cause
existed.” Id. at 238 (omission and alteration in original) (internal quotation marks
omitted).
(3) Finally, Defendants’ raise several sentencing issues on appeal. Vorasane
argues that the district court erred in denying him “safety valve relief” pursuant to
18 U.S.C. § 3553(f). The district court found that Vorasane was untruthful about
whether he learned about marijuana in the grow house a month or two after he
moved in, given that Vorasane lived in the house, aided in the cultivation of 357
marijuana plants in the house, and re-packaged the marijuana which was
transported from the house to Texas. Because this factual determination was not
clearly erroneous, we hold that the district court did not err in denying Vorasane
safety valve relief. See United States v. Real-Hernandez, 90 F.3d 356, 360 (9th
Cir. 1996). As a result, Vorasane was subject to a 60 month mandatory minimum
4
sentence under 21 U.S.C. § 841(b)(1)(B), and each of his additional claims of
sentencing error are irrelevant.
Viengkham argues that the district court erred in attributing to her the 357
marijuana plants seized at the marijuana grow house. However, the district court,
determined (1) that “the large amounts of marijuana and equipment utilized in the
cultivation of that marijuana in the home . . . was in furtherance of a jointly
undertaken criminal activity” and (2) that the cultivation of the 357 marijuana
plants was “reasonably foreseeable in connection with that criminal activity,” as
required by United States v. Ortiz, 362 F.3d 1274, 1275 (9th Cir. 2004).
Viengkham does not dispute that she had knowledge of the marijuana plants at the
Fresno house. Accordingly, the district court did not clearly err1 when it attributed
the 357 marijuana plants found at the marijuana grow house to Viengkham. As a
result, Viengkham was also subject to the mandatory minimum sentence of 60
months’ imprisonment pursuant to 21 U.S.C. § 841(b)(1)(B), and her additional
claims of sentencing error fail.
AFFIRMED.
1
Both parties agreed that the district court’s determination of the amount of
marijuana attributable to Viengkahm is reviewed for clear error.
5