USA v. Carlos Solorio

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, MARSHA S. BERZON and ROBERT S. LASNIK) On appeal, the government lodged Solorio s Presentence Report ( PSR ) with this Court and, in its answering brief, referred to the PSR for a prejudicial fact not before the jury. Solorio then filed a motion to strike the PSR and the government s reference to it. We deny Solorio s motion as unnecessary. The PSR and the information derived from it were not before the jury and are therefore irrelevant to our review. AFFIRMED. Judge: MSB Authoring, FILED AND ENTERED JUDGMENT. [8036439]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARLOS QUINTANA SOLORIO, Carlos
Quintana Solorio,
Defendant-Appellant.





No. 10-10304
D.C. No.
5:99-cr-20094RMW-1
OPINION

Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Argued and Submitted
December 6, 2011—San Francisco, California
Filed January 19, 2012
Before: Diarmuid F. O’Scannlain and Marsha S. Berzon,
Circuit Judges, and Robert S. Lasnik, District Judge.*
Opinion by Judge Berzon

*The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.

399

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UNITED STATES v. SOLORIO

COUNSEL
Melinda Haag, United States Attorney, Barbara J. Valliere,
Chief, Appellate Division, Assistant United States Attorney,

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Laurie Kloster Gray (argued), Assistant United States Attorney, San Francisco, California, John N. Glang, Assistant U.S.
Attorney, San Jose, California, for plaintiff-appellee United
States of America.
Amitai Schwartz (argued), Law Offices of Amitai Schwartz,
Emeryville, California, for defendant-appellant Carlos Quintana Solorio.

OPINION
BERZON, Circuit Judge:
Carlos Quintana Solorio (“Solorio”) was arrested during a
Drug Enforcement Agency (“DEA”) “buy bust” operation for
arranging to sell methamphetamine to a government informant.1
Following a jury trial, Solorio was convicted of possession
with intent to distribute 500 or more grams of a substance
containing methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A)(viii), and conspiracy to distribute
500 or more grams of a substance containing methamphetamine, in violation of 21 U.S.C. § 846.
Solorio now appeals his conviction on four grounds, contending that: (1) the trial court committed reversible plain
error by not requiring interpreters to take an oath, pursuant to
Federal Rule of Evidence 604, before translating the government informant’s testimony at trial; (2) allowing two DEA
agents to recount the “present sense impressions” of other
nontestifying agents violated Solorio’s right to confrontation;
(3) there was insufficient evidence to prove, beyond a reason1

A “buy bust” operation refers to an undercover narcotics operation
designed to catch suspected drug dealers by feigning a drug purchase.

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able doubt, that Solorio actually possessed methamphetamine;
and (4) cumulative error warrants reversal.2
I.
Background
A.

Events preceding the “buy bust” operation

On May 5, 1999, Miguel Portillo-Rodriguez (“PortilloRodriguez”) approached Solorio at a casino in San Jose, California and expressed an interest in buying drugs. PortilloRodriguez had worked as a government informant for nineteen years, earning $18,000-$19,000 annually and receiving
immigration benefits for both himself and his family. Solorio,
who was with a companion named Servando Jimenez
(“Jimenez”), replied that he could sell Portillo-Rodriguez
methamphetamine, and gave him a free drug sample.
Later that day, Portillo-Rodriguez went to the San Jose
DEA office and informed Special Agent Hilda Rubino
(“Rubino”) of his meeting with Solorio and Jimenez. PortilloRodriguez gave Rubino the drug sample that Solorio had
given him. The sample tested presumptively positive for
methamphetamine in a non-conclusive field test and was sent
to the Western Regional Laboratory in San Francisco for further testing. Based on the information Portillo-Rodriguez provided, Rubino opened a drug investigation.
Rubino began the investigation by instructing PortilloRodriguez to contact Solorio and arrange to buy five pounds
of methamphetamine. Following that directive, Portillo2

On appeal, the government lodged Solorio’s Presentence Report
(“PSR”) with this Court and, in its answering brief, referred to the PSR for
a prejudicial fact not before the jury. Solorio then filed a motion to strike
the PSR and the government’s reference to it. We deny Solorio’s motion
as unnecessary. The PSR and the information derived from it were not
before the jury and are therefore irrelevant to our review.

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Rodriguez called Solorio on May 12, 1999 and arranged to
meet him for a drug sale that afternoon at a Costco store in
San Jose. Solorio said on the call that he could obtain seven
pounds of methamphetamine, and Portillo-Rodriguez agreed
to buy that amount at $5,000 per pound. That price was consistent with the standard charge for methamphetamine in San
Jose at the time.
DEA agents gave Portillo-Rodriguez a bag containing
$25,000 cash, which Portillo-Rodriguez placed in the trunk of
the car he drove to the arranged meeting spot. All went well
at the outset: Solorio showed up at the Costco as planned,
arriving in a gray van driven by Jimenez. After PortilloRodriguez showed him the money, however, Solorio
responded that he did not have the drugs with him and suggested completing the deal at his work place, presumably that
same day. Portillo-Rodriguez, however, had been instructed
by DEA agents not to complete the deal anywhere else that
day, as the agents had an operational plan set up specifically
for the Costco location; moving the operation at that point
would have raised safety concerns. So, rather than agreeing to
Solorio’s proposal, Portillo-Rodriguez agreed to call Solorio
at a later time.
B.

The “buy bust” operation

Following up, Portillo-Rodriguez called Solorio on June 3,
1999. DEA agents were with Portillo-Rodriguez during the
call and recorded the conversation, during which the men
agreed to meet that afternoon to complete the drug deal. The
meeting place arranged this time was near the body shop
where Solorio worked. When Portillo-Rodriguez asked,
“What’s gonna be the, the number of people,” which, according to the evidence at trial, was code for the number of
pounds Solorio was selling, Solorio replied, “Five.” PortilloRodriguez then asked, “[S]o after all it’s not . . . all 7 weren’t
gonna go?” Solorio responded, “He couldn’t,” but assured
Portillo-Rodriguez that the deal was for “sure.”

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As the men had discussed, Portillo-Rodriguez met Solorio
near Solorio’s workplace. At first, Solorio indicated once
again that he did not want to complete the deal, this time
explaining that he was “nervous because there was a van or
vehicle there that he didn’t like the looks of.” Agent Rubino,
who was monitoring the conversation, alerted other agents
that the van, which was indeed a DEA surveillance vehicle,
needed to be moved. Soon, the “suspicious” van left, and
Jimenez joined Portillo-Rodriguez and Solorio. The three men
then walked to a gray van that Portillo-Rodriguez recognized
as the same one Solorio and Jimenez had driven to their previous meeting at Costco.
Solorio proceeded to raise the gray van’s hood, and Jimenez took a black plastic bag out of a microwave oven in the
back seat. According to Portillo-Rodriguez, there were
“pound disks” of “coffee-colored” drugs inside the bag. Solorio explained that the disks were stained with coffee “to
throw the dogs off.” Portillo-Rodriguez told Solorio that he
would get the money from his car and advised him not to
lower the hood of the van. As Portillo-Rodriguez walked
toward his car alone, he repeated the phrase “Lake Tahoe,”
the prearranged arrest signal. The two DEA arrest teams then
descended upon the scene and arrested Solorio and Jimenez.
A total of approximately twenty agents were involved in
the undercover operation, each assigned to one of a variety of
responsibilities. About eight to ten of the agents conducted
surveillance of the meeting. At least two of those agents
broadcast their observations over a radio, one from a van
“parked on a street overlooking the parking lot area,” and one
from an airplane overhead.3 Other agents were assigned to the
3

It is unclear precisely how many agents participated in the broadcasting. Rubino first testifies that, to the best of her recollection, there were
two agents who broadcast their observations. Subsequently, however, she
stated that she “heard radio traffic from different surveillance vehicles
who were observing, in addition to the airplane that was observing.”

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arrest teams and charged with taking the suspects into custody
once the arrest signal was given. Agent Kenneth Mazza, an
arrest team member, was “a few blocks away,” monitoring the
live transmissions that the broadcasting agents sent over the
radio. Agent Rubino monitored the body wire that PortilloRodriguez wore to the meeting and was assigned “to be security for” him. Rubino also listened to the radio traffic from the
different surveillance vehicles and the airplane that were
observing Solorio’s actions. Like Mazza, Rubino was in a van
parked “blocks away,” and did not personally see the interactions among Portillo-Rodriguez, Solorio, and Jimenez. After
Portillo-Rodriguez gave the “Lake Tahoe” arrest signal,
Rubino informed the arrest team that “it was a bust” and that
they should move in and arrest the subjects.
C.
1.

The methamphetamine
Testimony
of
(“Muenchow”)

Agent

Joseph

Muenchow

As the assigned “finder” during the “buy bust” operation,
Muenchow was responsible for maintaining custody and control of evidence. In that capacity, he was in charge of transporting any drugs back to the DEA office, processing them,
and securing them until they could be sent to a laboratory for
analysis.
After the arrest signal was given, Muenchow followed
Mazza to the gray van where Solorio and Jimenez had taken
Portillo-Rodriguez. Mazza pulled out a black plastic bag from
a microwave on the back seat of the van and handed it to
Muenchow. Muenchow opened the bag and observed “five
disks” of an “off white, kind of powdery, chunky substance
with some black particles sprinkled on them which appeared
to be coffee grounds.” The disks “were each individually
wrapped in . . . a clear cellophane.”

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Muenchow took the drugs back to the DEA’s San Jose
office. There, he removed a “little bit of sample” from the
suspected drugs and performed a presumptive field test—that
is, a preliminary test that would indicate whether the substance was probably methamphetamine, but which was not
definitive. The suspected drugs tested presumptively positive
for methamphetamine. Muenchow then put the drugs in an
evidence bag, filled out the label on the bag, and heat-sealed
the bag. He then weighed the drugs, their packaging, and the
evidence bag, determining that the gross weight was approximately 2,490 grams.4 At that point, Muenchow put the evidence “in the temporary drug evidence safe pending transfer
to the DEA West Regional Lab.” He did not alter the evidence
in any way before putting it into the evidence locker. Muenchow never again saw the drugs seized from Solorio.
At trial, the prosecution produced, and Muenchow identified, Government Exhibit 2 as the original evidence bag in
which he had sealed the drugs. Describing the DEA protocol
for transporting drugs from the evidence locker in San Jose to
the Western Regional Laboratory in San Francisco, Muenchow stated, “When you get evidence, drug evidence, you fill
out what’s called a DEA 7, which is a report of seizure.”
Muenchow recounted that he had filled out such a report on
the bag, which included the case number, exhibit number,
weight, name of the person who had acquired and sealed the
evidence (that is, Muenchow), name of a witness to the sealing, and the location and date of seizure. Below this information, Muenchow testified, the report had “a section for
transport and custody,” which contained the name of the agent
who transferred the bag to the DEA lab and the signature of
the lab custodian. Muenchow did not, however, have any personal knowledge of what happened to the bag after he placed
it in the DEA safe in San Jose. Instead, he testified only that
information inscribed on the DEA 7 indicated that the drugs
seized from Solorio had been transported to San Francisco.
4

2,490 grams equals approximately 5.5 pounds.

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Muenchow also testified that his original heat seal on the bag
had been broken and that the bag had been resealed. Consistent with Muenchow’s testimony, the report on the bag
reflects that it had been opened and resealed twice, once on
September 15, 1999, and once on September 28, 2009, but
does not say who did the reopening and resealing or why.
Muenchow opened the evidence bag during the trial, observing, “Now [the drug’s] no longer in disk form. It’s chunky,
off-white powdery substance which would have been done at
the lab. . . . This looks like part of the original disks. . . . There
is still some shape, part of a disk. It looks like they’re quartered.”
2.

Testimony of Brittany Huntington (“Huntington”)

Huntington, a forensic scientist at the DEA laboratory in
San Francisco, testified that she received Government Exhibit
2 on November 19, 2009. She described the exhibit as “three
heat sealed bags that all contain the same powder in various
sizes.” Someone at the laboratory had handed her the bags;
she did not know where they had come from before that. As
soon as Huntington received the bags, she weighed them and
determined the net weight of the drugs, excluding all the
packaging, to be approximately 1,850 grams.5 She then took
about a gram and a half of the substance and performed tests
on it, from which she concluded, with no doubt in her mind,
that “all three of the powders within this packaging . . . contained methamphetamine.” Upon examining the exhibit at
trial, Huntington testified that “[t]he outer packaging is now
cut open, but everything else is exactly the same.”
In addition, Huntington testified that she tested Government Exhibit 1, which the prosecution represented to be the
5

1,850 grams equals approximately 4.1 pounds. The amount Huntington
received was thus nearly one and a half pounds less than the aggregate
weight of the five “pound disks,” their cellophane wrapping, and the black
plastic bag they were originally in.

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drug sample that Solorio had given to Portillo-Rodriguez on
May 3, 1999. Huntington attested that she came into possession of this substance also on November 19, 2009, and that it
came with “the previous chemists’s report” and “the packaging sealed by that chemist.” Through her analysis, Huntington
identified that drug sample to be methamphetamine as well,
and said that she was absolutely certain of the identification.
D.

Trial

Solorio was tried by a jury in January 2010. PortilloRodriguez testified at length against him, in Spanish, with
translation by interpreters Carol Rhine-Medina and Aracely
Callaway. On the first day of trial, the court instructed the
jurors:
There may be Spanish language used during the trial.
The evidence you are to consider is only that provided through the official court interpreter. Although
some of you may know Spanish, it is . . . important
that all jurors consider the same evidence. Therefore,
you must accept the English translation and you
must disregard any different meaning.
On the second day of trial, Rhine-Medina interpreted while
Portillo-Rodriguez was sworn in; she was not herself administered an oath at that time. Solorio raised no objection to
Rhine-Medina’s failure to take an oath just before she translated or to her subsequent translation. The following day, Callaway translated for Portillo-Rodriguez. The court asked
Callaway to remind Portillo-Rodriguez that he was still under
oath, but, again, did not administer an oath at that time to Callaway herself. Once more, Solorio raised no objection to the
translation or to the failure of the interpreter to take an oath
just before beginning her translation.
Mazza, Rubino, Muenchow, and Huntington, also testified
against Solorio. The government did not, however, introduce

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as witnesses the agents who had actually observed Solorio’s
interactions with Portillo-Rodriguez and Jimenez during the
June 3, 1999 “buy bust” operation. Instead, Mazza and
Rubino testified about the surveillance observations of the
nontestifying agents, which had been broadcast over the DEA
radio system. Solorio objected to this testimony on hearsay
grounds,6 but the trial court overruled his objections, holding
the testimony admissible under the present sense impression
exception to the hearsay rule. See Fed R. Evid. 803(1).
Ultimately, the jury convicted Solorio of both possession
with intent to distribute 500 or more grams of a substance
containing methamphetamine and conspiracy to distribute 500
or more grams of a substance containing methamphetamine.
See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846.
II.
Discussion
A.

Interpreter oaths

Solorio raises for the first time on appeal his contention that
the district court committed reversible error by failing to
administer oaths to Portillo-Rodriguez’s interpreters before
they translated his testimony at trial. We review for plain
error. See United States v. Matus-Zayas, 655 F.3d 1092, 1098
(9th Cir. 2011).
[1] Under the version of Federal Rule of Evidence 604 in
effect at the time of Solorio’s trial, “[a]n interpreter is subject
to . . . the administration of an oath or affirmation to make a
6

During a pretrial hearing, the prosecution notified the court that it
intended to introduce “contemporaneous surveillance observations of nontestifying agents as present sense impressions under the hearsay rule.” Solorio objected on both hearsay and Confrontation Clause grounds. The trial
judge reserved his ruling on the objections at that point, and Solorio did
not renew his Confrontation Clause objections at trial.

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true translation.” Fed. R. Evid. 604 (2010).7 Interpreters who
translate the testimony of witnesses on the stand are covered
by this requirement. See United States v. Taren-Palma, 997
F.2d 525, 532 (9th Cir. 1993), abrogated on other grounds by
United States v. Shabani, 513 U.S. 10 (1994). Rule 604 does
not, however, indicate whether such an oath must be administered in any particular manner or at any specified time,
including whether the oath must be administered for each
trial. The Administrative Office of the United States Courts
(“AO”), has published guidelines on the administration of
oaths to interpreters, observing that “[p]olicies with regard to
the oath of interpreters vary from district to district and from
judge to judge.” 5 Guide to Judiciary Policy § 350(b) (2010).
Although some courts administer oaths to interpreters each
day, or once for an entire case, others “administer the oath to
staff and contract interpreters once, and keep it on file.” Id.
[2] We agree with the courts that proceed in the latter fashion that there is no requirement that the oath be administered
during each trial. Most telling in that regard is the absence of
any such requirement—or any indication as to how or when
interpreters are to be qualified and their oaths administered—
in Rule 604. In contrast, Rule 603, applicable to witnesses,
specifies that the oath must be administered “[b]efore testifying,” suggesting a temporal nexus to the actual appearance of
each witness at a particular trial.8 Unlike witnesses, an interpreter’s role is not limited to a specific trial, and there is no
apparent reason the oath need be either. In the absence of any
requirement that the interpreter’s oath be administered during
7

Rule 604 was amended in 2011 for purely stylistic reasons and now
reads, “An interpreter . . . must give an oath or affirmation to make a true
translation.” Fed. R. Evid. 604 (2011); see Fed. R. Evid. 604 advisory
committee’s note.
8
Federal Rule of Evidence 603 was also amended in 2011 for purely
stylistic reasons; the changes do not reflect an “intent to change any result
in any ruling on evidence admissibility.” Federal Rule of Evidence 603
advisory committee’s note.

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each new trial, it could not have been plain error for the trial
judge to have failed to do so.
[3] The record does not, however, indicate that the interpreters took the requisite oath at any time.9 Nonetheless, if
they did not, and there was therefore error, any error did not
affect Solorio’s substantial rights, as is required for reversal
on plain error review. See Matus-Zayas, 655 F.3d at 1098. We
reject one strand of the government’s argument as to why this
is so: that the interpreters each “translated the oath to testify
truthfully to the confidential informant, which served as a
reminder of their own duty to faithfully translate.” As noted,
the Federal Rules of Evidence contain a separate rule requiring that witnesses be administered an oath prior to testifying.
See Fed. R. Evid. 603 (“Before testifying, every witness shall
be required to declare that the witness will testify truthfully,
by oath or affirmation administered in a form calculated to
awaken the witness’ conscience and impress the witness’
mind with the duty to do so.”). That Rule 604, which is specifically directed at interpreters, exists in addition to Rule 603
indicates that the two rules impose independent requirements
that must both be met. Thus, the fact that Rhine-Medina and
Callaway helped administer oaths to Portillo-Rodriguez does
not substitute for the Rule 604 requirement that they themselves be administered oaths.
[4] Solorio nonetheless cannot prevail on plain error
grounds, as he has not shown prejudice arising from the trial
court’s possible error. Solorio does not challenge the accuracy
of the translations by identifying potentially material mistakes
or irregularities in the interpretation of Portillo-Rodriguez’s tes9

Of course, had the issue been raised at trial, it would undoubtedly have
been clarified whether they did or not, and there is no indication that they
did not. To avoid similar arguments on appeal in the future, it would be
preferable for district courts to place on the record of each trial in which
interpreters appear that proper qualification and oath-taking procedures
have been followed.

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timony.10 Nor does he claim that either interpreter engaged in
unlawful conduct. We agree with the Fifth Circuit that “[a]s
to [court interpreters], the fundamental question is normally
one of qualification, not of veracity or fidelity. In the absence
of special circumstances, the latter qualities are assumed.”
United States v. Perez, 651 F.2d 268, 273 (5th Cir. Unit A
July 1981). Because Solorio has not shown that he was prejudiced by any failure to administer Rule 604 oaths to PortilloRodriguez’s interpreters, any error did not affect Solorio’s
“substantial rights” and therefore did not constitute plain error
warranting reversal. See Matus-Zayas, 655 F.3d at 1098.
[5] Nor did any failure to administer oaths to PortilloRodriguez’s interpreters, combined with the trial court’s
instruction that the jury could only consider the English translation presented by the interpreters, result in a Confrontation
Clause violation. The Sixth Amendment guarantees that, “[i]n
all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him.” U.S. Const.
amend. VI. The interpreters, who only translated PortilloRodriguez’s in-court statements, were not themselves witnesses who testified against Solorio. See Taren-Palma, 997
F.2d at 532 (distinguishing between a “language expert” who
took the stand and testified about his out-of-court translation
of a taped conversation and “interpreters who translate the
testimony of witnesses on the stand”). Because Solorio had
the opportunity to confront Portillo Rodriguez, the actual
adverse witness, whose testimony the interpreters merely
translated, there was no Confrontation Clause violation.
10

Solorio identifies only a single discrepancy between Rhine-Medina’s
interpretation of Portillo-Rodriguez’s testimony and the translated transcript of his conversation with Solorio on June 3, 1999. With respect to
the hood of the van, which Solorio had put up, the transcript indicates that
Portillo-Rodriguez said, “Don’t take them down.” In contrast, PortilloRodriguez clarified, through Rhine-Medina’s interpretation, that he really
said, “Don’t put it down.” If anything, however, this discrepancy affirms
the accuracy of Rhine-Medina’s interpretation, which, unlike the out-ofcourt translation, is consistent with the context of Portillo-Rodriguez’s
statement.

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“Present sense impressions” of nontestifying agents11

We next consider whether the admission of Mazza’s and
Rubino’s testimony violated Solorio’s constitutional right to
confrontation because the two agents recounted the present
sense impressions of nontestifying agents. Solorio did not
object on Confrontation Clause grounds to the admission of
these statements at trial, so we review for plain error. See
Matus-Zayas, 655 F.3d at 1098. We hold that the district court
did not plainly err in admitting the statements; the remaining
prongs of the plain error inquiry are therefore not pertinent.
See Wahid, 614 F.3d at 1016 n.2.
[6] The Confrontation Clause covers only “testimonial”
statements. See Crawford v. Washington, 541 U.S. 36, 51-52
(2004). Although the Supreme Court did not set forth a comprehensive definition of the term “testimonial” in Crawford,
it provided examples of what falls within the “core class” of
“testimonial statements”:
ex parte in-court testimony or its functional
equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect
to be used prosecutorially; extrajudicial statements
. . . contained in formalized testimonial materials,
such as affidavits, depositions, prior testimony, or
confessions; [and] statements that were made under
circumstances which would lead an objective witness reasonably to believe that the statement would
be available for use at a later trial.
11

Solorio concedes that the contemporaneous observations of the nontestifying agents were properly admitted as “present sense impressions”
under Federal Rule of Evidence 803(1). See United States v. Gil, 58 F.3d
1414, 1422 (9th Cir. 1995). He thus does not appeal the admission of these
statements on hearsay grounds.

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541 U.S. at 51-52 (first alteration in original) (internal citations and quotations omitted); see also Jensen v. Piller, 439
F.3d 1086, 1089 (9th Cir. 2006) (characterizing Crawford’s
formulation of “testimonial” statements as statements “made
to a government officer with an eye toward trial”).
[7] Post-Crawford cases have clarified somewhat the limits
of the testimonial statement category. First, Davis v. Washington held that statements made during a police interrogation
“are testimonial when the circumstances objectively indicate
that there is no . . . ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution.” 547
U.S. 813, 822 (2006). Next, Michigan v. Bryant reiterated that
when “the primary purpose of an interrogation is to respond
to an ‘ongoing emergency,’ its purpose is not to create a
record for trial and thus is not within the scope of the [Confrontation] Clause.” 131 S. Ct. 1143, 1155 (2011) (quoting
Davis, 547 U.S. at 822). Bryant also explained that there can
be an “ongoing emergency” even after the original threat to
a victim has ceased to exist, so long as there is “a threat
potentially to the police and the public.” Id. at 1164; see also
id. at 1157 (“An ongoing emergency has a[n] . . . effect of
focusing an individual’s attention on responding to the emergency.”). Thus, while “statements made in the absence of any
interrogation are [not] necessarily nontestimonial,” Davis, 547
U.S. at 822 n.1, and the admissibility of a statement under a
hearsay exception is not controlling with respect to Confrontation Clause analysis, see Ocampo v. Vail, 649 F.3d 1098,
1108 (9th Cir. 2011); Ponce v. Felker, 606 F.3d 596, 599 (9th
Cir. 2010), statements made out-of-court with a primary purpose other than possible prosecutorial use are nontestimonial.
[8] In this case, the testimonial/nontestimonial distinction
arises with regard to statements by two or more DEA agents
on the scene, made before and during the drug sale for which
Solorio was prosecuted. Those agents broadcast to other
agents their contemporaneous observations of Portillo-

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Rodriguez’s interactions with Solorio and Jimenez. For reasons not explained in the record, the observing agents did not
testify at trial. Solorio contends that “[t]he observations of the
agents were formally recorded by Mazza and Rubino as present sense impressions in order that they could be used for
prosecution purposes, to create a record for trial, if necessary.” In contrast, the government maintains that the two
agents communicated their observations to the other agents to
ensure the success and safety of the operation, by assuring
that all agents involved knew what was happening and
enabling them to gauge their actions accordingly.
The record supports the government’s characterization. The
“buy bust” operation was a high-risk situation involving the
exchange of a large amount of money and a substantial quantity of drugs. It took place near Solorio’s work place, a location that he had selected, presumably because it placed him at
a strategic advantage should anything go wrong. That Solorio
was wary of the situation was confirmed by his initial reluctance to complete the deal when he saw the “suspicious” van
—a van that was, in fact, a DEA surveillance vehicle. The
agents also knew that Solorio was accompanied by Jimenez,
but did not know whether the two men were armed. So the
agents did not know exactly what might happen if Solorio discovered that the exchange was a set-up and that PortilloRodriguez was actually a government informant.
Under these circumstances, an objective observer could
reasonably believe that the undercover operation posed a
safety threat to Portillo-Rodriguez, and to the DEA agents on
the scene were they found out. By reporting their contemporaneous observations over the radio, the nontestifying agents
enabled the testifying agents to monitor the operation, to stay
ready to protect Portillo-Rodriguez and the on-the-scene
agents should it prove necessary, and to be promptly alerted
when it was time for them to play their assigned roles once
the arrest was triggered—in Mazza’s case helping to arrest

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Jimenez, and in Rubino’s case, securing the informant,
Portillo-Rodriguez.12
[9] The circumstances thus suggest that, like an “ongoing
emergency,” which “has a[n] . . . effect of focusing an individual’s attention on responding to the emergency,” Bryant,
131 S. Ct. at 1157, the undercover operation focused the surveilling agents’ attention on reporting the unfolding events to
others working with them. Accordingly, objectively assessed,
the “primary purpose” of the agents’ statements was assuring
that the arrest effort both succeeded and did not escalate into
a dangerous situation, not “to create a record for trial,” id. at
1155.
Moreover, as the Supreme Court explained in Bryant, “because the prospect of fabrication in statements given for the
primary purpose of resolving [an] emergency is presumably
significantly diminished, the Confrontation Clause does not
require such statements to be subject to the crucible of crossexamination.” Id. at 1157. Similarly, the “prospect of fabrication” in statements made for the principal purpose of ensuring
the safety and success of an undercover operation is “significantly diminished.” Id. Although, “after Crawford the
‘obviou[s] reliab[ility]’ of a testimonial statement does not
dispense with the Confrontation Clause,” Bullcoming v. New
Mexico, 131 S. Ct. 2705, 2715 (2011) (alterations in original)
(quoting Crawford, 541 U.S. at 62), that quality is informative
in this case, as it was in Bryant, in determining whether the
statement was or was not testimonial in the first place.
[10] We therefore hold that the district court did not
plainly err in admitting the nontestifying agents’ statements.
12

Rubino testified that she was “responsible for the informant,” which
ordinarily meant “secur[ing] him and get[ting] him out of the area.” She
did not, however, specifically recall what she did in this instance once the
arrest was triggered.

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C.

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Sufficiency of evidence

Next, we address Solorio’s argument that there was such a
major gap in the chain of custody between the substance
seized from him and the drugs produced at trial that there was
insufficient evidence to convict him of possession with intent
to distribute 500 or more grams of a substance containing
methamphetamine. Solorio preserved this claim by making a
Rule 29 motion at the close of evidence. We therefore undertake de novo review of the sufficiency of the evidence. See
United States v. Green, 592 F.3d 1057, 1065 (9th Cir. 2010).
[11] To sustain Solorio’s conviction under 21 U.S.C.
§ 841(a)(1), there must be sufficient evidence from which a
rational juror could find, beyond a reasonable doubt, see
United States v. Nevils, 598 F.3d 1158, 1163-65 (9th Cir.
2010) (en banc), that the substance seized from Solorio was,
in fact, methamphetamine, and that the amount of methamphetamine seized was 500 or more grams. See 21 U.S.C.
§ 841(b)(1)(A)(viii). As to this factual question, the government relied largely, although not exclusively, on testimony
regarding the testing results on a substance contained in a
plastic evidence bag and said to be the methamphetamine
seized during the raid on June 3, 1999. Solorio does not contend that the drug evidence was inadmissible.13 Instead, the
13
In this respect, this case diverges from the line of cases in which
defendants have relied on alleged discrepancies in the chain of evidence
to challenge the admissibility rather than weight of evidence. See, e.g.,
United States v. Edwards, 235 F.3d 1173 (9th Cir. 2000); United States v.
Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995); United States v. Harrington, 923 F.2d 1371 (9th Cir. 1991).; Gallego v. United States, 276 F.2d
914 (9th Cir. 1960). As we have held in those cases, before such evidence
can be admitted, “[t]he prosecution must introduce sufficient proof so that
a reasonable juror could find that the items [that the prosecution seeks to
admit into evidence] are in ‘substantially the same condition’ as when they
were seized.” Harrington, 923 F.2d at 1374 (quoting Gallego, 276 F.2d at
917)). In other words, “[t]he district court may admit the evidence if there
is a ‘reasonable probability the article has not been changed in important

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parties agree that “[t]he possibility of a break in the chain of
custody goes only to the weight of the evidence.” United
States v. Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991).
The record supports conflicting inferences regarding
whether the substance seized from Solorio on June 3, 1999,
was the same as that tested by Huntington and produced at
trial. On the one hand, Solorio argues that “the contents of the
bag appeared to be different when they were produced at trial
than when Agent Muenchow first sealed the bag.” Whereas
Muenchow had seized five “pound disks” that “were each
individually wrapped in . . . a clear cellophane,” and held in
a black plastic bag, the substance produced at trial was “no
longer in disk form,” and was contained in “three heat sealed
bags” that held “powder in various sizes.” In addition, the evidence weighed nearly one and a half pounds less than the
weight Muenchow had recorded, albeit this difference
included the weight of the cellophane wrapping and the black
plastic bag. The outer evidence bag had also been unsealed
and resealed twice between when Muenchow had sealed it
and when Huntington received it, by people and for reasons
unidentified in the record. These facts could certainly support
an inference that the contents of the evidence bag, as received
by Huntington, may not have been in the bag when Muenchow originally sealed it, or that the contents had been materially altered before they reached Huntington.
On the other hand, the drugs produced at trial came to Huntington in an outer evidence bag that, according to Muenchow, looked like the one he had sealed and bore his report
from 1999. The DEA 7 report also reflected that the drugs had
respects.’ ” Id. (quoting Gallego, 276 F.2d at 917). Because Solorio did
not challenge the admissibility of the drugs, we do not rule on whether
there was a “reasonable probability” that the drug evidence “ha[d] not
been changed in important respects.” Id. (internal quotation marks omitted).

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been transported from San Jose to San Francisco. In addition,
the substance seized by Muenchow had been an “off white,
kind of powdery, chunky substance,” and the substance produced at trial was likewise a “chunky, off-white powdery substance.” Upon examining the evidence at trial, moreover,
Muenchow observed, “This looks like part of the original
disks. . . . There is still some shape, part of a disk. It looks like
they’re quartered.”
[12] The methamphetamine produced at trial was well over
500 grams, as was required to convict Solorio, so the weight
difference from the drugs seized was not material. See 21
U.S.C. §§ 841(b)(1)(A)(viii), 846. While no reasonable juror
could conclude that the drug evidence remained unchanged,
a reasonable juror could nonetheless infer that the evidence
produced at trial consisted of remnants of the original
methamphetamine disks in fragmented form. Such a juror
could also conclude that although some of the drugs was
missing, the chemical composition of the remaining drugs had
not been altered.
We need not determine whether or not this permissible
inference would be sufficient in itself for a reasonable juror
to conclude beyond a reasonable doubt that the substance
seized during the raid was methamphetamine, in the requisite
amount. It need not be, as long as other evidence, combined
with the inference premised on the contents of the bag, would
permit a reasonable juror to conclude beyond a reasonable
doubt that the substance seized from Solorio was methamphetamine. Viewing the record as a whole, not just the testimony concerning the evidence bag, there was sufficient
evidence regarding the substance seized during the raid to
sustain the verdict.
At their first meeting in the casino, Solorio told PortilloRodriguez that he could sell him methamphetamine. Solorio
provided Portillo-Rodriguez with a small drug sample, which
tested positive for methamphetamine based on both a pre-

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sumptive field test performed by DEA agents and a subsequent laboratory analysis performed by Huntington. In
addition, Portillo-Rodriguez spoke with Solorio on May 12,
1999 and agreed to buy seven pounds of methamphetamine at
$5,000 per pound, which was consistent with the going rate
for the drug in San Jose at the time. On June 3, 1999, prior
to their afternoon meeting, Portillo-Rodriguez spoke again
with Solorio and inquired how many pounds Solorio would be
selling. When Solorio said five, Portillo-Rodriguez expressed
surprise that it was not seven pounds. A rational juror could
infer from this conversation that the men were discussing a
methamphetamine deal, because Portillo-Rodriguez had previously agreed to buy seven pounds of methamphetamine
from Solorio. Finally, the substance seized from Solorio
tested positive for methamphetamine in the presumptive field
test that Muenchow performed. Although Muenchow
acknowledged that presumptive tests can yield false positives,
a fact finder could still rely on the test as some evidence that
the substance was methamphetamine.
[13] On the record as a whole, then, there was sufficient
other evidence to fill any gap in the chain of custody for the
bag carrying the drugs. Given that the jury resolved “a record
of historical facts that supports conflicting inferences” in
favor of the prosecution, Nevils, 598 F.3d at 1164 (citation
and internal quotation marks omitted), and keeping in mind
the “great deference” that a court of appeals must give to a
jury verdict when reviewing for sufficiency of evidence,
United States v. Pelisamen, 641 F.3d 399, 409 n.6 (9th Cir.
2011), we hold that a rational fact-finder could conclude,
beyond a reasonable doubt, that the substance Solorio meant
to sell to Portillo-Rodriguez was actually methamphetamine.
See United States v. Robinson, 967 F.2d 287, 291-92 (9th Cir.
1992) (holding that there was sufficient evidence to support
a defendant’s conviction for possession with intent to distribute cocaine despite “a controversy regarding the chain of custody”), abrogated in part on other grounds as recognized in
Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1020 (9th Cir.

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2006). There was therefore sufficient evidence to sustain the
verdict.
D.

Cumulative error

[14] There can be no cumulative error when a defendant
fails to identify more than one error. See United States v. Laurienti, 611 F.3d 530, 551 (9th Cir. 2010). As discussed above,
even if the trial court’s failure to administer oaths to PortilloRodriguez’s interpreters was plain error, the error did not
affect Solorio’s substantial rights. See supra Section II.A.
Because Solorio has not identified any other error, there is no
cumulative error warranting reversal.
***
For the foregoing reasons, we affirm Solorio’s conviction.
AFFIRMED.