United States v. Victor Flores ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10232
Plaintiff-Appellee, D.C. No. 3:12-cr-00119-SI-2
v.
MEMORANDUM*
VICTOR FLORES, AKA Little Creeper,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-10237
Plaintiff-Appellee, D.C. No. 3:12-cr-00119-SI-7
v.
ARMANDO ACOSTA,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-10240
Plaintiff-Appellee, D.C. No. 3:12-cr-00119-SI-4
v.
BENJAMIN CAMPOS-GONZALEZ, AKA
BG,
Defendant-Appellant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted December 4, 2017
San Francisco, California
Before: TALLMAN** and HURWITZ, Circuit Judges, and KEELEY,*** District
Judge.
Victor Flores, Armando Acosta, and Benjamin Campos-Gonzalez appeal
their convictions arising out of their participation in a Racketeer Influenced and
Corrupt Organizations (“RICO”) enterprise known as the 500 Block/C Street
Gang. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. The district court properly found that probable cause supported the
issuance of wiretap orders in May 2011 by the San Mateo County Superior Court
seeking information related to December 2010 shootings that were suspected to
have been perpetrated by members of the RICO enterprise. When the wiretap
orders issued, there remained a “fair probability” that law enforcement would
intercept communications relevant to the predicate shootings. See Dawson v. City
**
This case was submitted to a panel that included Judge Kozinski, who
recently retired. Following Judge Kozinski’s retirement, Judge Tallman was drawn
by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Tallman has read
the briefs, reviewed the record, and listened to oral argument.
***
The Honorable Irene M. Keeley, United States District Judge for the
Northern District of West Virginia, sitting by designation.
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of Seattle, 435 F.3d 1054, 1062 (9th Cir. 2006) (quoting Illinois v. Gates, 462 U.S.
213, 238 (1983)). Because of the ongoing nature of the criminal enterprise, there
was “sufficient basis to believe” that members and associates of the enterprise
would discuss the shootings. United States v. Lacy, 119 F.3d 742, 746 (9th Cir.
1997) (citation and quotation omitted). Moreover, one of the principal suspects in
the shootings had fled to Mexico where he remained a fugitive. He had been
contacted by his parents from target telephones during January and February 2011,
and had used a target telephone to discuss one of the shootings as late as March
2011.
2. The district court did not err when, in response to a question during
deliberations, it instructed the jury that, under 18 U.S.C. § 1962(d), the defendants
could “knowingly and intentionally join or become a member of a conspiracy
without being a member of the enterprise.” “[A] defendant may be held liable for
conspiracy to violate section 1962(c) if he knowingly agrees to facilitate a scheme
which includes the operation or management of a RICO enterprise.” United States
v. Fernandez, 388 F.3d 1199, 1230 (9th Cir. 2004) (quoting Smith v. Berg, 247
F.3d 532, 538 (3d Cir. 2001)); see also Boyle v. United States, 556 U.S. 938, 949–
50 (2009).
The district court’s answer to the jury question did not constructively amend
the indictment. Whether the defendants were found by the jury to be classified as
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“members” or only mere “associates” of the RICO enterprise, the district court did
not allow them “to be convicted on the basis of different behavior than that alleged
in the original indictment.” United States v. Garcia-Paz, 282 F.3d 1212, 1216 (9th
Cir. 2002) (alteration in original). Likewise, the district court’s instruction did not
create a prejudicial variance from the crimes charged in the indictment, as the
indictment charged the same means and methods of the conspiracy for both
members and associates. Moreover, the district court properly directed the jury to
base its decision on the indictment and jury instructions. At all times, the
defendants were aware of “what [they were] accused of doing in violation of the
criminal law,” and thus could “prepare [their] defense.” United States v. Adamson,
291 F.3d 606, 616 (9th Cir. 2002) (citation omitted).
3. The district court did not abuse its discretion by declining to instruct
the jury that it must find as a basis for conviction that the 500 Block/C Street Gang
ascribed allegiance to the prison gang Nuestra Familia. The indictment defined the
RICO enterprise narrowly as the 500 Block/C Street Gang. The district court also
properly declined to apply the doctrine of judicial estoppel; the Government
consistently argued only that information concerning Nuestra Familia provided
necessary background regarding characteristics of the RICO enterprise. See
Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782–86 (9th Cir. 2001)
(“Judicial estoppel is an equitable doctrine that precludes a party from gaining an
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advantage by asserting one position, and then later seeking an advantage by taking
a clearly inconsistent position.”).
4. The district court properly admitted the testimony of California
Highway Patrol Officer Roy Ferriera, who transported Flores after he shot three
law enforcement officers during a raid. The Government asked Officer Ferriera
whether he “believed” Flores had referenced a prior shooting, and whether he was
“aware” that the suspect had killed four law enforcement officers. These
statements were not out of court statements of a non-party, and in any event were
offered to prove Flores’s state of mind, not the truth of the matter asserted. See
Fed. R. Evid. 801(c)(2). For the same reason, the statements were not testimonial
hearsay admitted in violation of the Confrontation Clause. Crawford v.
Washington, 541 U.S. 36, 51 (2004).
5. Sufficient evidence supported Acosta’s convictions for conspiring to
obstruct justice, in violation of 18 U.S.C. § 371, and obstruction of justice, in
violation of 18 U.S.C. § 1512(c)(2). The indictment alleged that Acosta obstructed,
influenced, and impeded an “official proceeding,” the federal grand jury
investigation into one of the December 2010 shootings. An “official proceeding”
includes federal grand juries. 18 U.S.C. § 1515(a)(1)(A). Contrary to Acosta’s
assertions, a defendant need not be aware that the obstructed proceeding is federal
in nature, nor must the proceeding be “pending or about to be instituted” at the
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time of the obstructive conduct. 18 U.S.C. § 1512(f)(1), (g)(1). It is sufficient that a
reasonable jury could conclude that the natural and probable effect of Acosta’s
obstructive conduct included interference with a federal grand jury. See Arthur
Andersen, LLP v. United States, 544 U.S. 696, 707–08 (2005); United States v.
Aguilar, 515 U.S. 593, 599 (1995).
6. The district court did not plainly err when it instructed the jury about
the elements of conspiracy to obstruct justice and obstruction of justice. The
instructions required the jury to find a nexus between Acosta’s obstructive conduct
and the official proceeding by stating that “it is sufficient if the obstruction of the
official proceeding was a natural and probable effect of the defendant’s obstructive
conduct.” Although the instructions did not state that an official proceeding
excludes state proceedings, the evidence at trial focused on the federal grand jury,
and the instructions explained that an official proceeding “includes proceedings
before a federal grand jury.” In addition, the instruction regarding conspiracy to
obstruct justice was closely followed by the substantive definition of obstruction of
justice, including its elements. Viewing the instructions as a whole, the jury would
not have been misled. See United States v. Moore, 109 F.3d 1456, 1465 (9th Cir.
1997).
AFFIRMED.
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