971 F.3d 1005
9th Cir.2020Background
- In 2011 Rodriguez was indicted in a large prosecution charging an Orange County Mexican Mafia (OCMM) RICO conspiracy and a VICAR conspiracy; she worked ~3 years as a "secretary" for OCMM leadership, relaying messages, handling extortion "taxes," and relaying orders to use violence.
- A proposed package plea collapsed when a co-defendant (Ojeda) declined to allocute; the case proceeded to trial.
- The jury convicted Rodriguez of RICO conspiracy (18 U.S.C. § 1962) and VICAR conspiracy (18 U.S.C. § 1959); she was sentenced to 78 months.
- On appeal Rodriguez challenged (inter alia) the VICAR membership-purpose instruction and sufficiency of evidence, RICO jury instructions (including unanimity language), the inclusion of attempt/conspiracy predicates, mid‑trial instructions about recordings, admission of dual‑role law‑enforcement opinion testimony, and exclusion of a defense witness.
- The Ninth Circuit affirmed in all respects, holding the VICAR instruction proper under circuit precedent, the evidence sufficient, RICO predicate/instruction rulings correct, and any evidentiary errors harmless.
Issues
| Issue | Plaintiff's Argument (Rodriguez) | Defendant's Argument (United States) | Held |
|---|---|---|---|
| VICAR membership-purpose standard | Court should require but‑for causation (membership purpose must be the but‑for cause of the violent conduct). | Circuit precedent permits a "substantial purpose" standard; motive can be mixed. | Banks and later Ninth Circuit precedent control; substantial‑purpose instruction was correct; Burrage did not displace Banks. |
| Sufficiency of evidence for VICAR membership‑purpose | Evidence did not show Rodriguez acted with a membership purpose (or but‑for motive). | Record (expert/percipients, recordings, correspondence) showed secretary role and directions tied to OCMM authority. | Viewing evidence in government’s favor, a rational jury could find a substantial membership purpose; conviction supported. |
| RICO unanimity/agreement instruction | Instruction improperly replaced required "agreement" with weaker "knew or contemplated" language in unanimity charge. | The court correctly stated elements elsewhere; stray language concerned only unanimity on predicate types. | No reversible error: elements instruction properly required agreement; any ambiguous subsidiary language harmless. |
| Predicate racketeering acts: attempts & conspiracies | "Involving" language should not encompass inchoate offenses; attempts/conspiracies are not RICO predicates under a narrow reading. | Ninth Circuit precedent long recognizes conspiracies/attempts as predicate racketeering acts; Scheidler/Franklin do not compel narrowing. | Attempts and conspiracies can qualify as RICO predicates; district court’s instruction upheld. |
| Dual‑role law‑enforcement opinion testimony | Officers’ interpretive opinions on intercepted calls were admitted improperly (expert opinion lacked reliable methodology; some lay foundations were insufficient). | Much testimony was permissible (organization structure, fixed‑meaning jargon); any problematic bits were limited. | Court erred to admit some interpretive opinions as expert testimony without adequate foundation, but error was harmless given corroborating witnesses, recordings, and documents; trial court admonished on future gatekeeping. |
| Exclusion of defense witness (Teresa Cantu) | Excluding sister’s testimony deprived Rodriguez of state‑of‑mind evidence (background, abusive relationship, motive to protect family). | Proffer largely appealed to sympathy, had limited probative value, and much testimony effectively advanced an unpreserved duress defense; Rule 403 exclusion appropriate. | District court did not abuse discretion: probative value minimal or tied to unpreserved duress; exclusion permissible under Rule 403. |
Key Cases Cited
- United States v. Banks, 514 F.3d 959 (9th Cir. 2008) (VICAR purpose element satisfied if gang purpose was a substantial or integral purpose; rejects sole/primary‑purpose requirement)
- Burrage v. United States, 571 U.S. 204 (2014) (statutory "results from" language in CSA requires but‑for causation — considered but not applied to VICAR motive requirement)
- United States v. Smith, 831 F.3d 1207 (9th Cir. 2016) (reaffirming Banks’ substantial‑purpose framing for VICAR)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence review)
- United States v. Franklin, 904 F.3d 793 (9th Cir. 2018) (statutory interpretation of "involving" in a different context — discussed but not controlling on inchoate predicates)
- Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003) (RICO/Hobbs Act extortion requires obtaining or attempting to obtain property; did not resolve completed vs. inchoate predicate distinction)
- United States v. Vera, 770 F.3d 1232 (9th Cir. 2014) (limits on gang expert testimony; need reliable methodology under Rule 702)
- United States v. Brooklier, 685 F.2d 1208 (9th Cir. 1982) (conspiracies and failed attempts can form a pattern of racketeering activity under RICO)