FILED
NOT FOR PUBLICATION MAY 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50207
Plaintiff - Appellee, D.C. No. 8:08-cr-00197-AG-2
v.
MEMORANDUM *
YU SUNG PARK, AKA Sung Park,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-50268
Plaintiff - Appellee, D.C. No. 8:08-cr-00197-AG-1
v.
VO DUONG TRAN, AKA Duong Tran,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted May 7, 2012
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WARDLAW, PAEZ, and RAWLINSON, Circuit Judges.
Yu Sung Park (Park) and Vo Duong Tran (Tran) appeal their convictions on
four counts: (1) conspiracy to commit a robbery affecting interstate commerce, in
violation of 18 U.S.C. § 1951(a); (2) interstate travel to commit a robbery with a
firearm, in violation of 18 U.S.C. § 924(g); (3) possession of a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A), (B);
and (4) possession of a machine gun, in violation of 18 U.S.C. § 922 (o)(1).
1. When the district court “makes a definitive ruling” to admit evidence
at trial, there is no need to renew the objection to preserve the claim. United
States v. Sepulveda-Barraza, 645 F.3d 1066, 1070 (9th Cir. 2011), as
amended; see also Fed. R. Evid. 103(b). Because the district court made a
definitive ruling on the admissibility of the audio recordings, Tran preserved
his right to appeal this issue. See id.
2. A party may file a motion to suppress recorded conversations when
there was an expectation of privacy and that individual’s privacy right was
violated. See United States v. King, 478 F.2d 494, 506 (9th Cir. 1973).
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Because Park was not a party to the recorded conversations, he had no
expectation of privacy as to those conversations and, therefore, lacks
standing to assert a Fourth Amendment challenge to the recordings. See id.
3. When one party consents to recording a conversation, there is no
Fourth Amendment violation as to him. See United States v Cosby, 500 F.2d
405, 406 (9th Cir. 1974); see also United States v. White, 401 U.S. 745,
751-52 (1971). Also, there is no expectation of privacy between a
wrongdoer and a trusted accomplice who turns out to be an informer or
undercover agent. See United States v. Mayer, 503 F.3d 740, 750 (9th Cir.
2007), as amended; see also White, 401 U.S. at 752. Because the special
agent provided the recording equipment for the cooperating source’s use
during the investigation, it is a reasonable assumption that the cooperating
source consented to the recordings. See Cosby, 500 F.2d at 406. In
addition, a consent form signed by the cooperating source was admitted into
evidence. This evidence was sufficient to establish consent and to avoid any
Fourth Amendment violation. See id.
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4. The government may lay a proper foundation for admission of
recorded conversations when a government agent testifies at trial that the
agent was privy to the recorded conversations, and can identify the voices on
the recordings. See id. Because the government laid a proper foundation
through the investigating agent’s testimony, the district court did not abuse
its discretion when it admitted the audio recordings into evidence. See id.
5. The Confrontation Clause of the Sixth Amendment guarantees the
defendant the right to cross-examine government witnesses. See Slovik v.
Yates, 556 F.3d 747, 752 (9th Cir. 2009). Although the government did not
call the cooperating source as a witness, the court ordered the government to
make the cooperating source available to the defense as a witness. There
was no Confrontation Clause violation because the defense was given the
opportunity to question the cooperating source for the benefit of the jury, but
failed to do so. See id.
6. Mere conversations between co-conspirators do not establish the
furtherance of a conspiracy. Rather, the conversations must set the
conspiracy in motion or further the objectives of the conspiracy. See United
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States v. Yarbrough, 852 F.2d 1522, 1535 (9th Cir. 1988). Other evidence in
the record may also establish a defendant’s participation in a conspiracy.
See United States v. Pena-Espinoza, 47 F.3d 356, 361 (9th Cir. 1995). We
need not focus on the statements at issue because we conclude that “other
evidence in the record” established the conspiracy, including the purchase of
bullet-proof vests, the exchange of text messages, and travel to the location
of the planned robbery. Thus, the audio recordings were properly admitted
as statements made in the furtherance of the conspiracy. See id.
AFFIRMED.
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