170 F. Supp. 3d 1226
N.D. Cal.2016Background
- Defendants H. Cervantes and Alberto Larez moved to exclude the government’s noticed evidence of uncharged acts under Fed. R. Evid. 404(b) and on other grounds; the government contends many incidents are direct proof of RICO/VICAR conspiracies and/or enterprise membership.
- The charges include a RICO conspiracy (18 U.S.C. § 1962(d)) and a VICAR conspiracy to commit assault with a dangerous weapon (18 U.S.C. § 1959(a)(6)); the Third Superseding Indictment (3SI) defines the enterprise, time period, locations, types of predicate acts, and alleged participants.
- The core legal dispute is whether particular uncharged incidents are "inextricably intertwined" with charged conspiracies (thus not subject to Rule 404(b)) or instead constitute other-acts evidence requiring a Rule 404(b) analysis.
- The government categorized proffered incidents as: (i) direct proof of RICO racketeering acts/pattern; (ii) proof of the VICAR conspiracy (Count Three); and (iii) evidence of the enterprise and defendants’ roles. It alternatively proposed to present any incident under Rule 404(b).
- The court evaluated each incident against Ninth Circuit tests for (a) being part of the same transaction or (b) necessary to present a coherent story, and weighed whether the government made the affirmative showing required to treat an incident as direct evidence of the charged conspiracies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether uncharged acts referenced in the 3SI require Rule 404(b) analysis | Gov: incidents referenced in the 3SI are inextricably intertwined with charged conspiracies and thus admissible as direct evidence | Defendants: even if mentioned generally, uncharged acts are "other acts" and must satisfy Rule 404(b) protections | Court: Incidents specifically referenced in the 3SI are within the charged conspiracy scope and not subject to Rule 404(b); motions to exclude these denied |
| Whether the July 2011 Red Bluff assault is admissible without Rule 404(b) | Gov: admissible as evidence of Count Three (VICAR conspiracy), enterprise membership, and an overt act in furtherance of the conspiracy | Larez: not charged in 3SI; denies gang relation or connection to conspiracy; seeks Rule 404(b) protection | Court: Denied motion to exclude — incident may be offered to prove enterprise, association, and as an overt act in furtherance; limiting-instruction arguments may be entertained |
| Whether other Cottonwood/Red Bluff robberies and home invasions (not detailed in 3SI) are admissible without Rule 404(b) | Gov: admissible as circumstantial/direct proof of the RICO conspiracy given time, location, actors, and alleged purpose consistent with 3SI | Defendants: seek exclusion as propensity/irrelevant/prejudicial other-acts | Court: Denied motion to exclude — these incidents fall within the charged conspiracy scope and need not be treated under Rule 404(b), though limiting-instruction argument allowed |
| Whether incidents remote in time/place/type (FTC Florence 2008 riot; Aug 2013 inmate assault) are admissible without Rule 404(b) | Gov: seeks to admit as proof of enterprise and defendants’ roles | H. Cervantes: seeks exclusion as not inextricably intertwined and as unfairly prejudicial | Court: Grants H. Cervantes’s motion to exclude these incidents from direct-admission; they must satisfy Rule 404(b) before admission (government may seek to admit under 404(b)) |
Key Cases Cited
- United States v. DeGeorge, 380 F.3d 1203 (9th Cir. 2004) (describes two categories of prior-act evidence that may be "inextricably intertwined" with charged crimes)
- United States v. Vizcarra-Martinez, 66 F.3d 1006 (9th Cir. 1995) (explains when offenses part of a single criminal episode are not subject to Rule 404(b))
- United States v. Lillard, 354 F.3d 850 (9th Cir. 2003) (admission of related uncharged acts forming part of the transaction underlying a conspiracy)
- Salinas v. United States, 522 U.S. 52 (1997) (RICO conspiracy need not specify overt acts and requires proof of agreement to a pattern of racketeering activity)
- United States v. Frega, 179 F.3d 793 (9th Cir. 1999) (reversed conviction where jury was not given opportunity to identify predicate racketeering acts relied on for RICO conspiracy, highlighting unanimity/instruction concerns)
- United States v. Montgomery, 384 F.3d 1050 (9th Cir. 2004) (uncharged acts admissible as inextricably intertwined where they comprise the conspiracy and occur within its temporal scope)
- United States v. Rizk, 660 F.3d 1125 (9th Cir. 2011) (government in a conspiracy case may prove the full scope of the conspiracy, not limited to overt acts in the indictment)