FILED
NOT FOR PUBLICATION MAR 05 2013
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. 12-10103
Plaintiff - Appellee, D.C. No. 3:11-cr-00070-RCJ-
WGC-2
v.
RODRIGO RODRIGUEZ-BECERRA, MEMORANDUM *
AKA Buki,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-10146
Plaintiff - Appellee, D.C. No. 3:11-cr-00070-RCJ-
WGC-1
v.
HUGO MORENO-SANABRIA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted February 15, 2013
San Francisco, California
Before: SCHROEDER and MURGUIA, Circuit Judges, and MCNAMEE, Senior
District Judge.**
After a joint trial, a jury found Rodrigo Rodriguez-Becerra and Hugo
Moreno-Sanabria guilty of conspiring to sell fifty grams or more of
methamphetamine in violation of 21 U.S.C. § 846; Rodriguez-Becerra guilty of
distributing five grams or more of methamphetamine in violation of 21 U.S.C. §
841(a); and Moreno-Sanabria guilty of possessing fifty grams or more of
methamphetamine with the intent to distribute it in violation of 21 U.S.C. § 841(a).
Both men appeal their convictions, and Rodriguez-Becerra appeals his sentence.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we
affirm.
Admission of the Unindicted Co-conspirator’s Plea Agreement
At trial, in contravention of Fed. R. Evid. 801(d)(2)(E) and the
Confrontation Clause, the government introduced into evidence the plea agreement
of an unindicted co-conspirator. Because Defendants failed to make the correct
**
The Honorable Stephen M. McNamee, Senior District Judge for the
U.S. District Court for the District of Arizona, sitting by designation.
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objection to admission of the plea agreement, we review for plain error. United
States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990); see also United States
v. Blandin, 435 F.3d 1191, 1195 (9th Cir. 2006) (Confrontation Clause violations
are subject to plain error review). Defendants cannot meet their respective burdens
on plain error review of establishing a reasonable probability that the outcome of
the trial would have been different had the plea agreement not been admitted.
United States v. Sanders, 421 F.3d 1044, 1051 (9th Cir. 2005).
To prove the conspiracy charge under 21 U.S.C. § 846, the government had
to prove Defendants (1) were part of an agreement to accomplish an objective
made criminal by 21 U.S.C. § 841(a) and (2) intended to commit the underlying
offense. United States v. Suarez, 682 F.3d 1214, 1219 (9th Cir. 2012). The
government presented significant evidence supporting this charge. The SWAT
team found eighty grams of methamphetamine in a safe along with other indicia of
drug sales in the apartment Defendants shared; both Defendants were involved in
distinct methamphetamine sales connected to the apartment; and both Defendants
indicated to others they did not work alone. Indeed, upon being arrested, Moreno-
Sanabria told the authorities he was selling the methamphetamine in the safe as
part of an agreement with another person.
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Ample evidence also supported Rodriguez-Becerra’s distribution conviction
under 21 U.S.C. § 841(a). The jury heard audio recordings from one week prior to
the charged transaction of Rodriguez-Becerra discussing methamphetamine sales.
The jury then saw and heard the actual transaction by video and audio recording, in
addition to testimony from an informant who participated in the transaction.
The evidence also strongly supported Moreno-Sanabria’s conviction for
knowingly possessing with the intent to distribute fifty grams or more of
methamphetamine in violation of 21 U.S.C. § 841(a). On the day he was arrested,
Moreno-Sanabria was found sleeping in the room of the apartment with the safe of
methamphetamine and other indicia of drug sales, and he later told DEA agents
that his fingerprints would be all over the inside of the safe because he was selling
the methamphetamine therein.
Accordingly, because Defendants’ convictions are supported by such
convincing evidence, they cannot demonstrate that admission of the unindicted co-
conspirator’s plea agreement constituted a plain error.
Use Immunity for the Unindicted Co-Conspirator
We reject Moreno-Sanabria’s argument that the district court erred by failing
to compel the government to grant the unindicted co-conspirator use immunity,
because the government neither intentionally caused the unindicted co-conspirator
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to plead the Fifth Amendment at trial nor granted use immunity to its own
witnesses only to deny use immunity to the unindicted co-conspirator. See United
States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008).
Disclosure of the Confidential Informant’s Identity
The district court did not abuse its discretion in denying Defendants’ request
for disclosure of the identity of CS-1, a confidential informant, because Defendants
failed to demonstrate this information would have been “‘relevant and helpful to
[their] defense . . . or [was] essential to a fair determination of [their] cause.’”
United States v. Kim, 577 F.2d 473, 478 (9th Cir. 1978) (quoting Roviaro v. United
States, 353 U.S. 53, 60–61 (1957)).
CS-1’s only evidentiary role in the case was (1) providing the initial tip that
precipitated the investigation; (2) making a controlled buy from Rodriguez-
Becerra; and (3) obtaining Moreno-Sanabria’s phone number. Introduction of CS-
1’s initial tip into evidence did not violate the Confrontation Clause. See United
States v. Wahchumwah, 704 F.3d 606, 614 (9th Cir. 2012) (Confrontation Clause
does not bar the introduction of tips offered to explain why an investigation
began). Moreover, testimony concerning the March 2, 2011, controlled buy and
the acquisition of Moreno-Sanabria’s phone number on March 28, 2011, did not
reference any statement by CS-1. Thus, the district court did not abuse its
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discretion in finding Defendants failed to clearly articulate any legitimate reason to
disclose CS-1’s identity; CS-1’s “testimony” had not, as Defendants contended,
been introduced at trial.
Rodriguez-Becerra’s Sentence
The district court did not abuse its discretion in sentencing Rodriguez-
Becerra to 132 months imprisonment, because that sentence is not “‘illogical,
implausible, or without support in inferences that may be drawn from the facts in
the record.’” United States v. Treadwell, 593 F.3d 990, 999 (9th Cir. 2010)
(quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)).
The district court considered the appropriate § 3553(a) factors, and logically and
plausibly concluded Rodriguez-Becerra was a “major player” in the
methamphetamine conspiracy operating out of the apartment: Rodriguez-Becerra
paid the apartment’s rent and utility bills, made at least two drug sales out of the
apartment, and played a key role in obtaining the methamphetamine for later sale.
AFFIRMED.
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