NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.

SCOTT MITCHELL BUMMER,

Defendant

- Appellant. No. 17

- 30046

D.C. No. 4:15

- cr

- 00046

- BMM

- 2

MEMORANDUM *

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding

Argued and Submitted July 11, 2018 Portland, Oregon

Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW, ** District Judge.

Scott Mitchell Bummer appeals his conviction s for conspiracy

, possession

with intent to distribute methamphetamine , and possession of a firearm in

furtherance of a drug trafficking crime

. See 18 U.S.C. § 924(c)(1)(A) ; 21 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. 

# FILED

JUL 20 2018

MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

§§ 841(a) (1)

, 846

. We have jurisdicti on pursuant to 28 U.S.C. § 1291, and w e

affirm.

1. Bummer’s due process rights were not violated by his absence from

the December 8, 2015 telephonic conference, at which he was represented by

counsel

. First, t he telephonic conference was not a critical stage in the proceedings

so as to requir e Bummer’s presence because it dealt primarily with the procedural

issue of how to conduct a Franks hearing

. United States v. McChesney , 871 F.3d

801, 8 08

– 09 (9th Cir. 201 7). 1 And e ven if it were a critical stage, “[n]othing in the

record suggests that [Bummer’s] presence on the line during the call itself would

have contributed in any way to the proceeding’s fairness, and so no due process

violation occurred.” Id. at 809 ; see also United States v. Veatch , 674 F.2d 1 217,

1225

– 26 (9th Cir. 1981).

2. Nor did the district court err in denying Bummer’s motion to suppress.

The district court found that Amato’s police interview did not indicate that he was

impaired in any way that would compromise the credibility of his statements

. That

1 “In determining whether a proceeding qualifies as a ‘critical stage,’ we consider three factors: (1) whether ‘failure to pursue strategies or remedies results in a loss of significant rights,’ (2) whether ‘skilled counsel would be useful in helping the accused understand the legal confrontation,’ and (3) whether ‘the proceeding tests the merits of the accused’s case.’” McChesney

, 871 F.3d at 808 (quoting Hovey v. Ayers , 458 F.3d 892, 901 (9th Cir. 2006)). More specifically, because Bummer

w as represented by counsel, only the first and third factors could be relevant here.
I d.3

finding was not clearly erroneous. See, e.g.

, United States v. Ellio t t , 322 F.3d 710,

714 (9th Cir. 2003). And we agree with the district court that Amato’s

statements

— together with the cell phone ping information

, visual surveillance

, and

the discovery of methamphetamine on Amato

— were enough to support probable

cause, even after excising any potentially tainted information regarding informants

.

See U nited States v. Barajas

-

Avalos , 377 F.3d 1 040, 1058 (9th Cir. 2004).

AFFIRMED.