United States v. Gary White, 621 F. App'x 889

Defendants Gary White, Anthony Gabourel, and Jermaine Hardiman were convicted for activities in the Pueblo Bishop Bloods (PBB) gang, including a RICO conspiracy; additional counts varied by defendant (VICAR, § 924(c), and drug conspiracy counts).
Government presented evidence that PBB functioned as an unlawful enterprise with hierarchy, gang symbols, and coordinated criminal activity (drug trafficking, gun trafficking, robbery, extortion, murder).
White admitted two small heroin sales to a confidential informant but denied conspiring with other PBB members to traffic large quantities; jury attributed him less than 50 grams of heroin.
Gabourel confessed participation in a retaliatory drive-by shooting that resulted in a murder; he was convicted of VICAR conspiracy and § 924(c) firearm offense.
Hardiman admitted gang membership and drug sales within PBB territory; trial evidence supported both the RICO nexus and drug-quantity findings (jury found at least 28 grams; court attributed at least 280 grams).
On appeal the Ninth Circuit affirmed most convictions and sentences but vacated White’s conviction for Count 5 (drug conspiracy) because the district court refused a requested Ninth Circuit Model Criminal Instruction 8.26 (the "Sears instruction").

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for RICO conspiracy	Gov: evidence showed PBB was an enterprise and defendants agreed to participate via racketeering acts	Defs: challenged sufficiency	Affirmed—ample evidence supported RICO conspiracy convictions
Jury instruction (Sears instruction) for White's drug conspiracy	White: requested Sears instruction because only proven direct sales were to a govt. agent; risk jury found conspiracy only with agent	Gov: argued overwhelming evidence of nongovernmental conspirators made Sears instruction unnecessary	Reversed White's drug-conspiracy conviction—district court erred by refusing instruction; remand to vacate or retry Count 5
Use of acquitted conduct at sentencing (White)	White: challenged use of acquitted conduct	Gov: sentencing discretion and Ninth Circuit precedent allow consideration within statutory max	Affirmed—court may consider acquitted conduct so long as sentence does not exceed statutory maximum
Increase in White's sentence based on role & criminal history	Gov: enhancements supported by trial testimony and prior convictions	White: challenged reasonableness and factual basis	Affirmed—leadership role and criminal-history adjustments were supported and reasonable

United States v. Bingham, 653 F.3d 893 (9th Cir. 2011) (sufficiency review standard for criminal convictions)
United States v. Odom, 329 F.3d 1032 (9th Cir. 2003) (evidence-sufficiency framework)
Boyle v. United States, 556 U.S. 938 (2009) (definition of enterprise under RICO)
Turkette, 452 U.S. 576 (1981) (RICO enterprise concept)
United States v. Mercado, 474 F.3d 654 (9th Cir. 2007) (acquitted-conduct use at sentencing)
Watts v. United States, 519 U.S. 148 (1997) (acquitted-conduct may be considered in sentencing)
United States v. Ellsworth, 456 F.3d 1146 (9th Cir. 2006) (criminal-history category adjustments)
United States v. Yarbrough, 852 F.2d 1522 (9th Cir. 1988) (nexus test for enterprise-related predicate offenses)
Sears v. United States, 343 F.2d 139 (5th Cir. 1965) (Sears instruction on conspiracies with government agents)
Escobar de Bright, 742 F.2d 1196 (9th Cir. 1984) (adopting Sears-type instruction in Ninth Circuit)
Marguet-Pillado, 648 F.3d 1001 (9th Cir. 2011) (failure to give a legally supported requested instruction requires reversal unless other instructions cover theory)
Montgomery, 150 F.3d 983 (9th Cir. 1998) (discussed by concurrence regarding when Sears instruction is required)
De Bright, 730 F.2d 1255 (9th Cir. 1984) (procedural guidance on Sears instruction remedies)
Brooks, 772 F.3d 1161 (9th Cir. 2014) (cited for instruction/remedy framework)
Daane, 475 F.3d 1114 (9th Cir. 2007) (deference to district court on jury-instruction evidentiary foundation)