18-10218
9th Cir.Jul 11, 2022Background
- Five defendants (Heard, Young, Ferdinand, Harding, Gordon) appealed convictions arising from their participation in the Central Divisadero Playas (CDP) gang in San Francisco; charges included a RICO conspiracy, VICAR violent offenses, and §924(c) firearms counts.
- Trial evidence included eyewitness IDs, jailhouse/informant recordings, cellphone texts and social-media posts, uncharged offenses ("silver van" robberies, an unrelated murder), and autopsy photos.
- District court suppressed some recorded statements under Massiah but admitted other recordings and multiple pieces of uncharged-acts evidence; it denied severance motions and several mistrial requests.
- Defendants challenged suppression rulings, many evidentiary admissions (including exclusion of an eyewitness-expert), sufficiency of evidence for RICO/VICAR, jury instructions (RICO and Pinkerton), §924(c) predicate issues, and double jeopardy.
- The Ninth Circuit affirmed most rulings, found no reversible error on evidentiary and instructional claims, but vacated one conviction (double-jeopardy lesser-included §924(c) count) and remanded for resentencing; some late §924(c)-related arguments were deemed waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Severance / New trial | Joint trial proper; overlap of evidence; limiting instructions sufficient | Joint trial prejudiced defendants (cross-exam testimony, IDs, spillover evidence) | Denial of severance/new-trial not an abuse; no manifest prejudice requiring separate trials. |
| Suppression: car search & informant recordings | Warrantless car search valid under automobile exception; informant recordings admissible except statements about charged conduct after right to counsel attached | Search lacked probable cause; recordings violated Sixth Amendment (Massiah) and fruits must be suppressed | Automobile search upheld; Massiah violation led to suppression only of statements about charged pimping conduct; uncharged statements admissible; no causal link shown for broader suppression. |
| Evidentiary rulings (uncharged acts, expert exclusion, informant notes) | Uncharged acts relevant to conspiracy/enterprise; expert testimony was untimely and redundant; informant notes admissible to rehabilitate witness | Admission was unfairly prejudicial; expert should have been allowed; prior-consistent rule inapplicable due to motive to lie | Court did not abuse discretion admitting uncharged-acts evidence; exclusion of expert proper under Rule 403/timeliness; if any error in admitting notes, it was not prejudicial under harmless-error standard. |
| Sufficiency of evidence for RICO conspiracy and VICAR | Proof of association-in-fact enterprise and that defendants intended to participate; evidence that violent acts served gang purpose | Insufficient proof of enterprise membership, intent, or that violence served to advance enterprise position | Evidence sufficient for RICO conspiracy and for VICAR counts (purpose element satisfied by gang-respect/ rivalry evidence). |
| Jury instructions (RICO elements, Pinkerton) | Instructions accurately stated law and were supported by evidence | Instructions misstated law and risked unfair liability | No plain error; instructions considered proper when read in context of whole trial. |
| §924(c) predicates and Double Jeopardy | §924(c) counts rested on substantive violent offenses here; lesser-included §924(c) conviction should be vacated when both greater and lesser convicted | §924(c) invalid if predicates included conspiracies or crimes not qualifying as "crimes of violence"; some predicate-based §924(c) claims raised post-argument | Many §924(c) challenges waived for late presentation; Begay en banc supports second-degree murder as crime of violence; Court vacated Count 19 (lesser-included) and remanded for resentencing. |
Key Cases Cited
- United States v. Johnson, 297 F.3d 845 (9th Cir.) (joint-trial/severance standard)
- Zafiro v. United States, 506 U.S. 534 (1993) (limiting instructions mitigate spillover prejudice)
- Massiah v. United States, 377 U.S. 201 (1964) (Sixth Amendment bars deliberate elicitation after right to counsel attaches)
- United States v. Faagai, 869 F.3d 1145 (9th Cir.) (automobile-exception analysis)
- Boyle v. United States, 556 U.S. 938 (2009) (association-in-fact enterprise definition under RICO)
- United States v. Christensen, 828 F.3d 763 (9th Cir.) (RICO enterprise and participation standard)
- United States v. Banks, 514 F.3d 959 (9th Cir.) (VICAR purpose element analysis)
- Tome v. United States, 513 U.S. 150 (1995) (prior consistent statements and premotive rule)
- United States v. Rohrer, 708 F.2d 429 (9th Cir.) (harmless-error standard for evidentiary admissions)
- United States v. Jose, 425 F.3d 1237 (9th Cir.) (vacating lesser-included convictions when both greater and lesser are returned)
- United States v. Begay, 33 F.4th 1081 (9th Cir. en banc) (second-degree murder qualifies as a crime of violence under §924(c))
- United States v. Gobert, 943 F.3d 878 (9th Cir.) (assault with a dangerous weapon is a crime of violence)