United States v. Rodriguez

971 F.3d 1005

UNITED STATES of America, Plaintiff-Appellee,

v.Susan Jeanette RODRIGUEZ, aka Suzie Rodriguez, Defendant-Appellant.

No. 16-50213

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 5, 2020 Pasadena, California

Filed August 20, 2020

Davina T. Chen (argued), Sentencing Resource Counsel, Federal Public Community Defenders, Los Angeles, California, for Defendant-Appellant.

Robert J. Keenan (argued) and Joseph T. McNally, Assistant United States Attorneys; L. Ashley Aull, Chief Criminal Appeals Section; Nicola T. Hanna, United States Attorney; United States Attorney's Office, Santa Ana, California; for Plaintiff-Appellee.

Before: Sidney R. Thomas, Chief Judge, and Kim McLane Wardlaw and Jacqueline H. Nguyen, Circuit Judges.

NGUYEN, Circuit Judge:

Susan Rodriguez appeals her convictions and sentence arising out of her role as "secretary" to a high-ranking member of the Mexican Mafia ("La Eme"). In 2011, as part of a large-scale prosecution, Rodriguez was indicted along with many other individuals for conspiring to conduct the affairs of the Orange County branch of the Mexican Mafia ("OCMM") through a pattern of racketeering activity including extortion, drug trafficking, and conspiracies and attempts to commit murder.

For approximately three years, Rodriguez served as "secretary" for Peter Ojeda, the leader of the OCMM, and for her ex-husband, Tommy Rodriguez. In that capacity, Rodriguez delivered messages among Eme members and their mesas (i.e. leadership teams), collected and disbursed "tax" money earned from extortion, and, ultimately, conspired to murder gang members who were deemed a threat to Ojeda's leadership.

Prior to trial, Rodriguez reached a favorable "package-deal" plea agreement with the government, but it fell through when Ojeda, who was included in the plea agreement, declined to allocute. After weeks of heated testimony and advocacy, the jury returned a guilty verdict against Rodriguez on two counts: (i) conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962, and (ii) conspiracy in violation of the Violent Crimes in Aid of Racketeering Activity ("VICAR") statute, 18 U.S.C. § 1959. Rodriguez was sentenced to 78 months imprisonment.

On appeal, Rodriguez raises numerous challenges to the trial court's jury instructions, its evidentiary rulings, and the sufficiency of the evidence.¹ We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

I. VICAR Membership Purpose

Rodriguez challenges her VICAR conviction on the grounds that the district court failed to properly instruct the jury on the membership-purpose element, and that the evidence of a membership purpose was insufficient to support her conviction.

A. Jury Instruction

To support a VICAR conviction, the government must show: "(1) that the criminal organization exists; (2) that the organization is a racketeering enterprise; (3) that the defendants committed [or attempted or conspired to commit] a violent crime; and (4) that they acted for the purpose of promoting their position in [or gaining entrance to] the racketeering enterprise." United States v. Bracy , 67 F.3d 1421, 1429 (9th Cir. 1995) ; see 18 U.S.C. § 1959. The parties agree on this general framework but dispute what exactly the fourth element, the membership-purpose element, requires. Rodriguez argues that the government must prove that a membership purpose—gaining entrance to, or maintaining or increasing her position in, the OCMM—was the but-for cause of her conduct. The government argued for, and the district court applied, a lesser "substantial purpose" standard.² We hold that the district court properly instructed the jury on the elements of a VICAR conspiracy.

We held in United States v. Banks , 514 F.3d 959, 970 (9th Cir. 2008), that the VICAR statute is limited "to those cases in which the jury finds that one of the defendant's general purposes or dominant purposes was to enhance his status or that the violent act was committed ‘as an integral aspect’ of gang membership." Recognizing that "[p]eople often act with mixed motives," we rejected a more stringent reading of VICAR that would require the gang or racketeering enterprise purpose to be the "only purpose" or the "main purpose" behind the violent conduct. Id. at 969 ; see also id. at 968 (concluding "that the purpose element does not require the Government to show that the defendant was solely, exclusively, or even primarily motivated by a desire to gain entry into, or maintain or increase his status within, the criminal organization"). We emphasized that "[i]t would make little sense to provide a safe-harbor ... for gang members who can offer a plausible alternative motivation for their acts." Id. at 967. However, we explained, the membership purpose "does have to be a substantial purpose." Id. at 969.

Rodriguez acknowledges Banks but contends that the Supreme Court's intervening decisions in Burrage v. United States , 571 U.S. 204, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014), and Husted v. A. Philip Randolph Institute , ––– U.S. ––––, 138 S. Ct. 1833, 201 L.Ed.2d 141 (2018),³ mandate "[a] minimum of but-for causation." We disagree.

In Burrage , the Supreme Court evaluated the level of causation required to trigger the Controlled Substances Act's 20-year mandatory minimum sentence for drug distribution offenses when "death or serious bodily injury results from the use of such substance." 571 U.S. at 206, 134 S.Ct. 881 (quoting 21 U.S.C. § 841(a)(1), (b)(1)(A)–(C) ). Burrage held that the "results from" language in the Controlled Substances Act established a but-for causation requirement. Id. at 218–19, 134 S.Ct. 881. It explained that the phrase "results from" imposes "a requirement of actual causality," and that a "but-for requirement is part of the common understanding of cause." Id. at 211, 134 S.Ct. 881. It added that courts have routinely interpreted similar language—including "because of," "based on," and "by reason of"—to require a but-for causal relationship. Id. at 212–14, 134 S.Ct. 881.

Burrage , however, is not clearly irreconcilable with our decision in Banks , so Banks remains binding precedent in this circuit. See Miller v. Gammie , 335 F.3d 889, 893 (9th Cir. 2003) (en banc). The two cases grappled with entirely distinct statutes, in an analytic exercise that is heavily dependent on context. Our detailed analysis of the structure, context, and purpose of the VICAR statute is in no way undermined by the Supreme Court's evaluation of the Controlled Substances Act in Burrage . In addition, the "results from" language evaluated in Burrage differs materially from the "for the purpose of" language assessed in Banks . The latter phrase concerns motive whereas the former concerns causation, such that the causation-oriented reasoning of Burrage does not readily extend to the VICAR purpose requirement. Reinforcing the conclusion that Banks remains intact, we reiterated its holding in United States v. Smith , 831 F.3d 1207, 1217–18 (9th Cir. 2016), which was decided more than two years after Burrage .⁴

The substantial purpose instruction given by the district court closely tracks our framing from Banks and Smith . See Smith , 831 F.3d at 1218 ("As we made clear in Banks , in the gang or racketeering area, when a person has two criminal purposes neither has to dominate (be the main purpose), but then neither can be ‘merely incidental’ either. More simply put, perhaps, both purposes must be substantial."); Banks , 514 F.3d at 969 (explaining that "the gang or racketeering enterprise purpose does not have to be the only purpose or the main purpose of the murder or assault[,] [b]ut it does have to be a substantial purpose"); id. at 970 (holding that the VICAR purpose element is also satisfied where "the violent act was committed ‘as an integral aspect’ of gang membership"). Because Banks and Smith remain good law, the district court correctly gave a "substantial purpose" rather than "but-for cause" instruction for the VICAR purpose element.

B. Sufficiency of the Evidence

Rodriguez also contends that the evidence was insufficient to satisfy VICAR's membership-purpose requirement. She argues that the government failed to prove she acted with any membership purpose at all, and, in the alternative, that the government failed to prove a membership purpose was the but-for cause of her conduct.⁵

We review sufficiency of the evidence de novo. United States v. Bennett , 621 F.3d 1131, 1135 (9th Cir. 2010). "A claim of insufficient evidence fails if ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Id. (quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). Although the government's evidence as to a membership purpose was not overwhelming, Rodriguez falls short of meeting the high standard applicable on sufficiency-of-the-evidence review.

To satisfy the VICAR statute, the government did not need to prove that Rodriguez was considered an official member of the Mexican Mafia. The VICAR statute speaks of maintaining or increasing one's "position" within the enterprise—a broad term that encompasses the ringleader of an Eme faction as well as the less formalized role of his "secretary." Accord United States v. Brady , 26 F.3d 282, 289–90 (2d Cir. 1994) (rejecting the defendant's argument that his VICAR conviction should be reversed because he was a mere associate, rather than a "made member," of a crime family). We further note that the enterprise charged in the indictment broadly encompassed the organization's "leadership, membership, and associates." The indictment's framing reinforces that official Eme membership was not a prerequisite to a VICAR conviction here. Accord id. at 290 (upholding the VICAR conviction of an "associate" of a crime family, where...