United States v. Jesus Barragan , 871 F.3d 689 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50516
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-00236-IEG-5
JESUS BARRAGAN, AKA Chito,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 13-50518
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-00236-IEG-14
HECTOR FERNANDEZ, AKA
Evil,
Defendant-Appellant.
2 UNITED STATES V. BARRAGAN
UNITED STATES OF AMERICA, No. 13-50525
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-00236-IEG-6
FRANCISCO GUTIERREZ, AKA
Ammo, AKA Bullet,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 13-50531
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-00236-IEG-3
PABLO FRANCO, AKA Casper,
AKA Dwarf, OPINION
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Senior District Judge, Presiding
Argued and Submitted June 9, 2017
Pasadena, California
Filed September 8, 2017
UNITED STATES V. BARRAGAN 3
Before: Kermit V. Lipez, * Carlos T. Bea,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Hurwitz
SUMMARY **
Criminal Law
The panel affirmed Jesus Barragan’s, Pablo Franco’s,
Francisco Gutierrez’s, and Hector Fernandez’s convictions
for conspiracy in violation of the Racketeering Influenced
Corrupt Organizations Act; affirmed Barragan’s conviction
for drug crimes; affirmed Barragan’s, Franco’s, and
Fernandez’s sentences; but vacated Gutierrez’s sentence and
remanded for resentencing.
The panel rejected Gutierrez’s arguments (1) that
suppression of wiretap evidence was required because the
affidavit supporting the application failed to show necessity,
and (2) that a Franks hearing was required because the
affidavit contained false information.
The panel held that the district court’s failure to try
Fernandez separately from his co-defendants was not
manifestly prejudicial to him.
*
The Honorable Kermit V. Lipez, United States Circuit Judge for
the First Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 UNITED STATES V. BARRAGAN
The panel held that the district court did not abuse its
discretion in allowing a former Mexican Mafia member to
testify on direct examination about his past crimes, nor in
finding that the probative value of the evidence was not
substantially outweighed by any prejudice. The panel found
no error arising from the prosecutor’s blaming, in rebuttal,
the defense for bringing up the former Mafia member’s
violent past.
The panel held that the district court did not abuse its
discretion in admitting as lay opinion case agents’ testimony
about the meaning of code words used by the conspirators.
The panel held that the district court did not abuse its
discretion in admitting tapes of conversations between a
confidential informant and alleged conspirators. The panel
explained that the informant’s statements on the tapes, which
were offered only for context and not for their truth, were
not hearsay, and their admission did not offend the
Confrontation Clause.
The panel held that the government presented sufficient
evidence of Fernandez’s participation in the RICO
conspiracy to sustain his conviction.
The panel held that the prosecutor’s remarks in closing
argument, emphasizing the violent nature of the defendants’
crimes and repeatedly urging the jury to say “no more,” were
improper because they invited the jury to convict for a non-
evidentiary reason: to protect the community against future
violence. The panel concluded, however, that the remarks
did not have a probable effect on the jury’s verdict in light
of the entire record.
UNITED STATES V. BARRAGAN 5
The panel held that the district court did not abuse its
discretion in refusing to give Fernandez’s requested jury
instructions (1) that he could not be convicted of conspiring
with a government informant; (2) that his mere purchase of
drugs did not establish participation in a conspiracy; and (3)
that the government prove he was not a victim of extortion.
The panel found no plain error in the district court’s failure
to give jurors an explanation for their anonymity.
Affirming Barragan’s sentence, the panel held (1) that a
conviction under Calif. Penal Code § 211—which
necessarily involves either generic robbery or generic
extortion—was categorically a “crime of violence” for
purpose of the career offender guideline in effect at the time
of his sentencing; and (2) that, after reviewing the judicially
noticeable records of Barragan’s prior conviction under
California Health and Safety Code § 11379, a divisible
statute, the district court properly concluded that the
conviction was for selling a controlled substance offense
under the career offender guideline.
The government conceded that the district court erred in
calculating Gutierrez’s sentence as a career offender because
his conviction in this case was not for a crime of violence or
a controlled substance. The panel agreed, vacating
Gutierrez’s sentence and remanding for resentencing on an
open record.
The panel held that in finding certain RICO conspiracy
predicate acts attributable to each defendant pursuant to
U.S.S.G. § 2E1.1, the district court (1) was permitted to
attribute to a defendant predicate acts that the jury verdicts
did not so attribute and/or of which a defendant was
acquitted or not formally charged; and (2) was permitted to
6 UNITED STATES V. BARRAGAN
find facts relating to the extent of the conspiracy by a
preponderance of the evidence.
COUNSEL
John C. Lemon (argued), San Diego, California, for
Defendant-Appellant Jesus Barragan.
Knut S. Johnson (argued) and Emerson Wheat, San Diego,
California, for Defendant-Appellant Hector Fernandez.
Sanjay Sobti (argued), U.S. Law Center, Corona, California,
for Defendant-Appellant Francisco Gutierrez.
Gary P. Gurcham, Burcham & Zugman, San Diego,
California, for Defendant-Appellant Pablo Franco.
Helen H. Hong (argued), Assistant United States Attorney,
Chief, Appellate Section, Criminal Division, United States
Attorney’s Office, San Diego, California, for Plaintiff-
Appellee.
OPINION
HURWITZ, Circuit Judge:
Jesus Barragan, Pablo Franco, Francisco Gutierrez, and
Hector Fernandez were convicted of conspiracy in violation
of the Racketeer Influenced and Corrupt Organizations Act
(“RICO”); Barragan was also convicted of drug crimes.
They appeal their convictions and sentences. Although we
find a portion of the prosecutor’s closing argument
improper, we conclude that prejudice has not been shown
UNITED STATES V. BARRAGAN 7
and affirm the convictions. We affirm the sentences of
Barragan, Franco, and Fernandez, but vacate Gutierrez’s
sentence and remand for resentencing.
I. BACKGROUND
A. Investigation and Indictment
In 2010, a joint federal and state task force undertook an
investigation of extortion and drug trafficking by the
Mexican Mafia (“Mafia”) 1 and local street gangs in San
Diego County. In January 2012, an indictment was filed
charging forty alleged Mafia members and associates with
engaging in an racketeering conspiracy in violation of RICO,
18 U.S.C. § 1962(d).
The indictment alleged that the Mafia imposed a “tax”
on Southern California gangs in return for allowing them to
sell drugs and conduct other illegal activities. If a gang
failed to pay the tax, the Mafia announced a “green light”
authorizing violence toward gang members, both in prison
and on the streets, until the tax was paid. Because the Mafia
had only 125 official members, it relied on associates—
usually members of local Hispanic gangs—to collect taxes.
Low-level associates were known as “surenos,” higher-level
associates as “camaradas,” and official Mafia members as
“carnales.” The leader of each local gang was responsible
1
We have described the history and activities of the Mexican Mafia,
also known as “La Eme,” on several occasions. See, e.g., United States
v. Rodriguez, 851 F.3d 931, 936 (9th Cir. 2017); United States v.
Martinez, 657 F.3d 811, 815 (9th Cir. 2011); United States v. Fernandez,
388 F.3d 1199, 1215–16 (9th Cir. 2004); United States v. Shryock,
342 F.3d 948, 961 (9th Cir. 2003).
8 UNITED STATES V. BARRAGAN
for ensuring payment of taxes. Gangs raised tax money by
selling drugs and robbing other drug dealers.
After some of the indicted defendants entered guilty
pleas, two superseding indictments were filed charging some
of the remaining defendants with additional crimes. Eight
defendants, including Barragan, Franco, Gutierrez, and
Fernandez, eventually opted for trial.
B. Trial
The trial of appellants and four co-defendants lasted six
weeks. The government called over seventy witnesses and
introduced tapes of hundreds of intercepted phone
conversations, among other evidence. We summarize the
evidence against each appellant below.
1. Evidence against Barragan
Local gang members and drug dealers testified that
Barragan was the leader of the West Side gang, responsible
for collecting Mafia taxes. Barragan’s statements in phone
conversations confirmed his association with the Mafia. 2
West Side gang member Everst Cruz testified that Barragan
instructed the gang to raise tax money by selling drugs and
robbing other drug dealers, and that Barragan gave him a
handgun “to collect the money and for whatever popped up.”
Cruz testified that he regularly sold drugs and gave the
proceeds to Barragan. Intercepted phone conversations and
text messages revealed that Barragan supplied drugs to West
2
For example, Barragan told Gutierrez “I’m a camarada like you”
and “I am working for” a Mafia member.
UNITED STATES V. BARRAGAN 9
Side members. On two occasions, members of the task force
observed Barragan selling drugs.
Cruz also testified that he and other West Side members
robbed local drug dealers and gave the money to Barragan.
In phone conversations, Barragan told gang members whom
to rob. Cruz recounted one occasion where Barragan went
to a drug dealer’s house, “slapped him around,” and took
drugs and money. In a subsequent phone call, the drug
dealer lamented that Barragan had robbed him.
Cruz also testified that after members of a rival gang, the
Diablos, beat up and stabbed West Side members, Barragan
said “something needed to be done” and “he didn’t care what
we had to do.” Cruz then shot a Diablos member with the
handgun Barragan had given him.
2. Evidence against Franco
Franco was a high-ranking member of the Varrio
Fallbrook Locos gang and an associate of the Mafia,
according to intercepted phone conversations and his
tattoos. 3 Before the task force investigation began, Franco
was in custody at the Vista detention facility. While there,
his statements in phone conversations indicated that he used
his sister to smuggle drugs into the facility and to deliver
money to the Mafia. 4
3
For example, Gutierrez stated that Franco is a “camarada” and “we
give him our support.” Franco’s tattoos stated, among other things,
“gang related,” “sureño,” and “Old Town Fallbrook.”
4
For example, in a recorded call, Franco told his sister that “the
presents will be all wrapped up” and instructed her to “hand it off” to an
inmate who checked himself into the facility on weekends. The inmate
10 UNITED STATES V. BARRAGAN
During the task force investigation, Franco was
incarcerated in state prison. A fellow inmate, Alfonso Mata,
testified that he helped Franco collect taxes from drug-
dealing inmates on behalf of the Mafia. At Franco’s
direction, Mata sent tax proceeds to Franco’s mother, who
then forwarded the money to a Mafia member. Receipts
confirmed that Mata sent money to Franco’s mother.
Intercepted phone calls, taped conversations, and a bank
statement confirmed that Franco’s mother and sister then
forwarded the money to a Mafia member. 5
Despite his incarceration, Franco declared in a letter that
the town of Fallbrook belongs to him and that his “amigo”
in charge on the outside “has all our support.” Mata also
testified that Franco mentioned that his friend “Bullet” was
dealing drugs “out in the neighborhood.”
3. Evidence against Gutierrez
Intercepted phone conversations revealed that “Bullet”
was Gutierrez. Like Franco, Gutierrez belonged to the
Varrio Fallbrook Locos gang and was a Mafia associate, as
demonstrated by phone conversations, his tattoos, and
markings on his property. 6
was later found to have drugs and a hypodermic needle in a package in
his rectum. In another recorded call, Franco told his sister to deliver
money to a Mafia member.
5
For example, Franco’s mother stated in an intercepted conversation
that Franco’s sister had $600 for a Mafia member. A bank statement
showed a $600 deposit in the Mafia member’s account the next day.
6
For example, Gutierrez referred to himself as “the homey” at the
Vista detention facility, and Barragan replied “I’m a camarada like you.”
Gutierrez’s tattoos stated, among other things, “Fallbrook Locotis.”
UNITED STATES V. BARRAGAN 11
When the task force investigation began, Gutierrez was
in custody at the Vista detention facility. While Gutierrez
was there, the Mafia announced a green light against West
Side members in the facility. Two inmates then assaulted
Cruz. Cruz testified that an inmate told him that Gutierrez
ordered the assault. Three weeks after the assault, Gutierrez
told an inmate in a recorded conversation that the green light
was lifted.
Once released, Gutierrez took orders from Franco.
Recorded phone conversations indicated that Gutierrez
helped smuggle drugs into the Vista detention facility,
collected tax money from inmates, and delivered that money
to Franco. 7 In one call, Gutierrez instructed an inmate to
silence another inmate who was starting to talk to law
enforcement.
4. Evidence against Fernandez
Fernandez conceded that he belonged to the Diablos
gang. A former Diablos leader testified that in the fall of
2010, a Mafia member convened a meeting of Diablos
members, instructing them to collect money from local drug
dealers, using violence if necessary.
In an April 2011 phone conversation, Fernandez
scheduled a meeting with the Diablos leader (Miguel
Markings on his notepad stated “FLS” and “13,” signifying Fallbrook
Locos and the thirteenth letter of the alphabet, M, for the Mafia.
7
For example, in a recorded call, an inmate asked Gutierrez for “a
card”; four days later, heroin was found in a greeting card sent to that
inmate. Gutierrez also gave inmates his address and specified how much
money to send. In a text message, Gutierrez told Franco’s sister “I have
80 for your bro from Vista.”
12 UNITED STATES V. BARRAGAN
Grado), the leader of the Varrio San Marcos gang (Ivan
Dunayevich), and a Varrio San Marcos member who was a
government informant. The informant secretly audio-
recorded the meeting. During the meeting, Fernandez and
Grado informed Dunayevich that a drug dealer was using his
name to avoid paying taxes. Dunayevich expressed surprise,
stating that the drug dealer had only sent him payment
“maybe one time.” Fernandez then suggested: “Let’s touch
him up.” In a phone call seven days later, Grado told
Barragan to rob the drug dealer and to “tell that fool that he’s
gonna start paying us.” Later that day, the drug dealer stated
in a phone call that Barragan had robbed him.
In May 2011, the informant secretly audio-recorded a
meeting in which Fernandez sold him heroin. After handing
over the drugs, Fernandez told the informant that he will
have more heroin later and that he also has “crystal.” In June
2011, the informant secretly audio- and video-recorded a
meeting in which Grado sold him methamphetamine.
Although Fernandez cannot be seen on the video, a detective
testified that he can be heard saying “What’s up man” as the
informant enters the room. In July 2011, Fernandez told a
fellow gang member in a recorded call that he wanted to
“try” some methamphetamine and asked how much it would
cost.
Five witnesses testified that in June 2011, a group of
masked men who called themselves “Diablos” robbed them
with a bat. The men fled after police were called. In a photo
lineup, four of the witnesses failed to identify Fernandez as
one of the attackers, but the fifth witness said she was
“almost positive” that Fernandez was there. Intercepted
UNITED STATES V. BARRAGAN 13
calls from Fernandez’s phone that night indicated that he
participated in the robbery. 8
C. Convictions and Sentences
Barragan was convicted of the RICO conspiracy,
conspiracy to distribute methamphetamine and cocaine, and
two counts of distributing methamphetamine, but acquitted
of assault, attempted murder, and discharge of a firearm in
relation to a crime of violence. Franco and Gutierrez were
convicted of the RICO conspiracy, the only charge against
them. Fernandez was convicted of the RICO conspiracy, but
acquitted of conspiracy to distribute methamphetamine. 9
The district court sentenced Barragan to 320 months in
prison, Franco to 240 months, Gutierrez to 240 months, and
Fernandez to 151 months. This timely appeal followed.
II. CONVICTION ISSUES
A. Wiretap Evidence
During the task force investigation, the district court
authorized a wiretap of seven phones, including one used by
Gutierrez. The wiretap application was supported by the
affidavit of FBI agent Mathew Zeman, which described the
suspected conspiracy, identified the investigative techniques
8
For example, Fernandez asked a fellow Diablos member for a ride
and stated “they’re already callin’ the cops”; he then asked another
Diablos member whether he grabbed “the beater.”
9
One of the four other defendants tried with the appellants pleaded
guilty during trial; two were convicted on some counts but acquitted on
others; and one was convicted on all counts.
14 UNITED STATES V. BARRAGAN
the task force had used to date, and explained the limitations
of these and other potential techniques.
Gutierrez moved to suppress the wiretap evidence and
for a hearing pursuant to Franks v. Delaware, 438 U.S. 154
(1978), on whether Zeman’s affidavit was materially
misleading. The district court denied both motions.
Gutierrez argues that (1) suppression was required because
the affidavit failed to show that a wiretap was necessary, and
(2) a Franks hearing was required because the affidavit
contained false information.
1. Necessity of wiretap
“The government must show that every wiretap it seeks
is necessary.” United States v. Christie, 825 F.3d 1048, 1066
(9th Cir. 2016). An affidavit in support of a wiretap
application must contain “a full and complete statement as
to whether or not other investigative procedures have been
tried and failed or why they reasonably appear to be unlikely
to succeed if tried or to be too dangerous.” 18 U.S.C.
§ 2518(1)(c). The district court may authorize a wiretap
only after determining that “normal investigative procedures
have been tried and have failed or reasonably appear to be
unlikely to succeed if tried or to be too dangerous.” Id.
§ 2518(3)(c).
We review de novo whether an affidavit satisfies
§ 2518(1)(c). Christie, 825 F.3d at 1066. If the affidavit
complies, we review for abuse of discretion a district judge’s
finding of necessity under § 2518(3)(c) and decision to
authorize the wiretap. Id.
UNITED STATES V. BARRAGAN 15
a. Full and complete statement
Zeman’s affidavit was sufficient under § 2518(1)(c).
Twenty-four pages of the affidavit detailed the evidence the
task force had uncovered during seven months of
investigation. 10 Another sixteen pages described the
techniques used to date—including three confidential
informants, two undercover officers, physical surveillance
of suspects, review of recorded jail calls, pen registers,
vehicle tracking devices, grand jury subpoenas, and mail
covers—and explained why further use of these techniques
would not reveal the full conspiracy.
Gutierrez argues that Zeman’s affidavit merely gave
boilerplate excuses for not using certain techniques. See
United States v. Blackmon, 273 F.3d 1204, 1210 (9th Cir.
2001) (affidavit must describe more than “inherent
limitations of normal investigative procedures”). But
Zeman’s reasons were largely case-specific. For example,
the affidavit stated that the spouse of one confidential
informant was exposed as a government source, and the
introduction of another informant caused conspirators to
scale back their interactions with a third informant.
Informants also faced the Mafia’s penchant for violence; the
affidavit recounted evidence that the Mafia (and Gutierrez)
had recently arranged the stabbing of an informant in a
different case. Suspects were justifiably afraid to talk to
police; an inmate identified as a possible source of
information refused to cooperate with prosecutors after an
10
This evidence included calls from a local jail to Gutierrez, in
which Gutierrez discussed drug smuggling and Mafia activities in code.
Thus, contrary to Gutierrez’s suggestion, there was probable cause to
believe that Gutierrez was violating the law and that a wiretap would
intercept relevant communications. See 18 U.S.C. § 2518(3)(a), (b).
16 UNITED STATES V. BARRAGAN
assault by Mafia associates. Although undercover officers
were able to buy drugs from conspirators, they could not
infiltrate the Mafia because its members do not trust
outsiders. Investigators conducted physical surveillance of
conspirators, but could not get close enough to hear
conversations, and the conspirators took counter-
surveillance precautions such as meeting in enclosed spaces
and making U-turns while driving. Pen registers revealed
phone numbers the conspirators called, but many numbers
were registered to false names.
To be sure, the Zeman affidavit also contained some
boilerplate. “Some boilerplate language, however, is not
fatal as we evaluate ‘the level of detail in the affidavit as a
whole.’” United States v. Rodriguez, 851 F.3d 931, 942 (9th
Cir. 2017) (quoting Christie, 825 F.3d at 1068). Overall, the
Zeman affidavit explained “in reasonable detail” why
traditional investigative procedures had reached their limit.
Id. at 943 (quoting United States v. Rivera, 527 F.3d 891,
899 (9th Cir. 2008)).
Gutierrez also argues that many of the investigatory
techniques used by the task force were not utilized against
him in particular. But no such requirement exists. It was
sufficient for Zeman to explain “why certain techniques
would be unproductive or too dangerous in regard to all of
the target subjects . . . due to alleged associations with the
Mexican Mafia.” Id. at 940.
Gutierrez also attacks Zeman’s affidavit because it did
not mention that Gutierrez was monitored as a condition of
his parole. But the fact that Gutierrez knew that he was being
monitored suggests, if anything, that he would have been
more discreet in communicating with conspirators,
reinforcing the need for a wiretap. Zeman’s omission of the
monitoring was not “fatal to the affidavit as a whole” given
UNITED STATES V. BARRAGAN 17
its “detailed discussion of most of the other investigative
techniques.” Rivera, 527 F.3d at 901.
b. Finding of necessity
We accord district judges “considerable discretion in
finding necessity, particularly when the case involves the
investigation of a conspiracy.” Rodriguez, 851 F.3d at 944
(quoting United States v. Reed, 575 F.3d 900, 909 (9th Cir.
2009)). The district court did not abuse that discretion here.
Zeman’s affidavit showed that the government used a “range
of traditional techniques” and explained why continuing to
do so “would be unproductive or dangerous given specific
facts about the Mexican Mafia and the particular case.” Id.
The fact that the task force had “some degree of success”
without a wiretap did not “extinguish the need for a wiretap.”
Id. at 943 (quoting United States v. Bennett, 219 F.3d 1117,
1122 (9th Cir. 2000)).
2. Franks hearing
To obtain a Franks hearing, Gutierrez was required to
make a substantial preliminary showing that (1) Zeman’s
affidavit deliberately or recklessly included a false
statement, and (2) the statement was material to the necessity
finding. Christie, 825 F.3d at 1069. We review the denial
of a Franks hearing de novo. Id.
Gutierrez did not show that Zeman’s affidavit included a
material false statement. Contrary to Gutierrez’s assertions,
Zeman’s affidavit made clear that the target phone belonged
to someone other than Gutierrez and that calls from the local
jail were recorded. Although the affidavit omitted the fact
that Gutierrez was subject to monitoring as a condition of his
parole, “the district court would still have been reasonable to
find the wiretap necessary” had this fact been included. See
18 UNITED STATES V. BARRAGAN
United States v. Shryock, 342 F.3d 948, 977 (9th Cir. 2003).
And, Gutierrez does not challenge the district court’s finding
that he failed to show that the omission was deliberate or
reckless.
B. Joint Trial
The district court denied Fernandez’s motions to try him
separately from his co-defendants. On appeal, Fernandez
argues that the joint trial prejudiced him because most of the
evidence implicated his co-defendants, not him.
“The district court’s denial of a motion to sever is
reviewed for an abuse of discretion.” United States v.
Fernandez, 388 F.3d 1199, 1241 (9th Cir. 2004). “The test
for abuse of discretion by the district court is whether a joint
trial was so manifestly prejudicial as to require the trial judge
to exercise his discretion in but one way, by ordering a
separate trial.” Id. (quoting United States v. Baker, 10 F.3d
1374, 1386 (9th Cir. 1993)).
This trial was not manifestly prejudicial. A “joint trial is
particularly appropriate where the co-defendants are charged
with conspiracy.” Id. at 1242. The district court instructed
the jury to consider each defendant separately, reducing the
possibility of prejudice. Id. at 1243. And the jury partially
acquitted several defendants, including Fernandez,
demonstrating its ability to compartmentalize. Id. at 1242–
43. 11
11
Fernandez also asserts, without citation to the record, that he was
prejudiced by the “misbehavior” of co-defendant Jeremiah Figueroa
during trial. A co-defendant’s misbehavior “usually will not compel a
separate trial,” unless the movant “can demonstrate the existence of some
UNITED STATES V. BARRAGAN 19
C. Testimony of Former Mafia Member
Before trial, the government moved in limine to allow
former Mafia member Rene Enriquez to testify about the
organization’s structure and operation. The defense
objected, arguing that Enriquez’s testimony about the
Mafia’s violent history would be unfairly prejudicial. The
district court overruled the objection. 12
At trial, Enriquez recounted his rise through the Mafia
hierarchy, explaining how members communicated with
each other and enforced their rules through violence. He
described several crimes he committed for the Mafia,
including murder. On cross-examination, defense counsel
elicited details of Enriquez’s crimes. During closing
argument, Fernandez’s counsel asserted that the government
had called Enriquez in order to “scare” the jury into
convicting. In rebuttal, the prosecutor pointed out that it was
the defense that focused on Enriquez’s violent past. 13
On appeal, Barragan, Franco, and Fernandez argue that
Enriquez’s testimony was irrelevant and unfairly prejudicial.
Fernandez also argues that the prosecutor committed
special prejudice.” United States v. Pierro, 32 F.3d 611, 616 (1st Cir.
1994) (collecting cases). Fernandez has not made that showing.
12
The court did, however, prohibit Enriquez from testifying that the
Mafia is a “terrorist organization.”
13
The prosecutor said: “Yes, we brought out that [Enriquez] had
been convicted multiple times and he’d done crimes. For the two-and-
a-half hours that he was subject to cross-examination by defense counsel,
it was all their questions that kept bringing out these points.”
20 UNITED STATES V. BARRAGAN
misconduct when, in rebuttal, he blamed the defense for
eliciting the testimony.
1. Unfair prejudice
Evidence is relevant if it “has any tendency to make a
fact more or less probable than it would be without the
evidence” and “the fact is of consequence in determining the
action.” Fed. R. Evid. 401. But, a district court may exclude
relevant evidence “if its probative value is substantially
outweighed by . . . unfair prejudice.” Fed. R. Evid. 403. We
review a district court’s application of Rule 403 with
“considerable deference.” United States v. Fleming,
215 F.3d 930, 938 (9th Cir. 2000) (quoting United States v.
Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000)).
The district court did not abuse its discretion in allowing
Enriquez to testify on direct examination about his past
crimes. The testimony was relevant because it laid the
foundation for his knowledge of the Mafia and helped
explain how the Mafia was able to enforce its taxation
scheme: As he put it, “you pay or you die.” Nor did the
court abuse its discretion in finding that the probative value
of the evidence was not substantially outweighed by any
prejudice. The testimony was not “dragged in by the heels
for the sake of its prejudicial effect.” United States v.
Plascencia-Orozco, 852 F.3d 910, 926 (9th Cir. 2017)
(quoting United States v. Haischer, 780 F.3d 1277, 1282 (9th
Cir. 2015)).
Franco argues that the prosecution spent most of its
direct examination eliciting inflammatory testimony about
Enriquez’s violent past. In fact, however, most of the gory
details were elicited on cross. In any event, the prosecution
was entitled to draw the sting from this anticipated attack.
UNITED STATES V. BARRAGAN 21
See United States v. Feldman, 788 F.2d 544, 555 (9th Cir.
1986). 14
2. Prosecutorial misconduct
A prosecutor may not express his or her own opinion of
the defendant’s guilt or “denigrate the defense as a sham.”
United States v. Hermanek, 289 F.3d 1076, 1098 (9th Cir.
2002). Fernandez argues that the prosecutor improperly
denigrated the defense when, in rebuttal, he blamed the
defense for bringing up Enriquez’s violent past. Because
Fernandez did not raise this argument below, we review for
plain error. United States v. Tucker, 641 F.3d 1110, 1120
(9th Cir. 2011).
We find no error, plain or otherwise. By pointing out
that the defense brought up Enriquez’s past, the prosecutor
merely answered the defense charge that the government
called Enriquez to “scare” the jury. “Criticism of defense
theories and tactics is a proper subject of closing argument.”
United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir.
1997).
D. Testimony of Investigating Agents
Before trial, the government moved to admit both expert
and lay testimony from case agents about the meaning of
code words used by the conspirators. The defense objected
to the agents wearing “two hats”—as both expert and lay
14
Franco also argues that Enriquez’s testimony was improper
propensity evidence because it suggested that Franco might have
committed similar crimes. This argument misapplies the rule against
using a defendant’s own crimes as propensity evidence. See United
States v. Hodges, 770 F.2d 1475, 1479 (9th Cir. 1985). Enriquez did not
testify about crimes committed by Franco.
22 UNITED STATES V. BARRAGAN
witnesses. The district court granted the motion to admit
expert testimony, and granted the motion to admit lay
testimony “as long as it’s based on personal observation and
experience in listening in on the conversations of the case.”
At the beginning of trial, the government clarified that it
did not intend to offer the agents as experts, but would
instead elicit their interpretations of code words as “lay
opinion testimony based on their perceptions during the
course of the investigation.” Throughout trial, the agents
testified as to the meaning of words and phrases in the
defendants’ text messages and phone calls. 15 The agents
made clear that their interpretations were based on their
review of hundreds of calls and text messages during the
investigation. The defense objected that the agents were
giving expert opinions and that an instruction was necessary
to distinguish between their lay and expert testimony. The
district court held that the agents’ interpretations were lay
opinions under Federal Rule of Evidence 701, and
periodically instructed the jury that the opinions were based
on the agents’ own involvement in the investigation.
On appeal, Barragan and Gutierrez argue that the district
court mistakenly classified the agents as lay witnesses and
failed to differentiate the agents’ “two hats.” Similarly,
15
For example, Barragan’s statement that a gang member “don’t
want to chip in” was interpreted to mean “not paying taxes.” Franco’s
statement to his sister that “the presents will be all wrapped up” was
interpreted to mean “the drugs will be packaged and ready to go.”
Gutierrez’s statement to an inmate that he would “send the right
scriptures to you guys” was interpreted to mean sending “drugs.”
Fernandez’s statement that he had “crystal” was interpreted to mean
“methamphetamine.”
UNITED STATES V. BARRAGAN 23
Franco argues that the district court failed to instruct the jury
as to the agents’ “dual roles.”
“The admissibility of lay opinion testimony under Rule
701 is committed to the sound discretion of the trial judge
and his decision will be overturned only if it constitutes a
clear abuse of discretion.” United States v. Gadson,
763 F.3d 1189, 1209 (9th Cir. 2014) (quoting Nationwide
Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1058
(9th Cir. 2008)). The district court did not abuse its
discretion in admitting the agents’ testimony as lay opinion.
An agent’s “interpretations of ambiguous conversations
based upon his direct knowledge of the investigation” are
“lay testimony.” United States v. Freeman, 498 F.3d 893,
904–05 (9th Cir. 2007); accord Gadson, 763 F.3d at 1206–
09. 16
Barragan argues that the district court should have
treated the agents’ testimony as expert opinion because the
agents were interpreting “drug jargon,” not simply
“ambiguous conversations.” Freeman, 498 F.3d at 901–02.
But the line between lay and expert opinion depends on the
basis of the opinion, not its subject matter. See id. at 902
(distinguishing between testimony based on “specialized
knowledge” and testimony based on “general knowledge of
the investigation”); Fed. R. Evid. 701(c) (lay testimony is
“not based on . . . specialized knowledge”). Here, the agents
16
Barragan contends that Freeman was incorrectly decided. See
Gadson, 763 F.3d at 1223 (Berzon, J., concurring and dissenting)
(“Freeman, in my view, goes much too far in allowing lay officer
testimony concerning recorded conversations.”). But a “three judge
panel of this court cannot overrule a prior decision of this court.” In re
Complaint of Ross Island Sand & Gravel, 226 F.3d 1015, 1018 (9th Cir.
2000) (per curiam).
24 UNITED STATES V. BARRAGAN
regularly tied their interpretations to their familiarity with
the investigation. The district court thus had “ample grounds
to conclude” that the agents based their interpretations on
“personal knowledge of facts [they] learned during the
investigation.” Gadson, 763 F.3d at 1209–10. 17
E. Out-of-Court Statements of an Informant
At trial, the government sought to introduce tapes of
conversations between a confidential informant and alleged
conspirators, including Fernandez. Fernandez objected,
arguing that the informant’s statements were hearsay and
their admission would violate the Confrontation Clause. The
government asserted that the informant’s statements were
not being offered for their truth, but only to give context to
other statements on the tapes. The district court overruled
the objection “as long as the informant is talking to someone
who’s a co-conspirator,” because “it doesn’t make sense” to
“play conversations and take one side out of it.” At the close
of trial, the court instructed the jury not to consider the
informant’s statements as evidence:
Throughout the course of the trial, you have
heard recordings that included statements
made by government informants. It is the
statements of those speaking to the
government informants that is to be
considered by you as evidence. Such
statements should be considered by you in
17
Franco asserts that the agents also gave expert opinions, but cites
only one example: On cross-examination, when asked whether the
Varrio San Marcos gang was associated with the Mafia before 2011, an
agent said yes, based on past investigations. This testimony was not
elicited by the government, and Franco does not explain how it
prejudiced him.
UNITED STATES V. BARRAGAN 25
relation to all the other instructions I provide,
and you may give such statements as much
weight as you think they deserve. Statements
of government informants are not to be
considered for their truth, but only to put the
statements of those with whom they were
talking into context.
On appeal, Fernandez renews his hearsay and Confrontation
Clause arguments.
1. Hearsay
“Whether the district court correctly construed the
hearsay rule is a question of law reviewable de novo.
However, district courts are granted broad discretion in
admitting evidence, and their rulings are reviewed only for
an abuse of discretion.” United States v. Collicott, 92 F.3d
973, 978 (9th Cir. 1996) (citation omitted).
The district court did not abuse its discretion in admitting
the tapes. The co-conspirators’ statements on the tapes were
not hearsay. Fed. R. Evid. 801(d)(2)(E). And the
informant’s statements on the tapes were not hearsay
because, as the court instructed the jury, they were offered
only for context, not for “the truth of the matter asserted.”
Fed. R. Evid. 801(c)(2); see United States v. Valerio,
441 F.3d 837, 844 (9th Cir. 2006) (district court did not
abuse discretion in admitting recorded conversation between
informant and defendant and instructing jury not to consider
informant’s statements for their truth).
In particular, Fernandez attacks a statement made by the
informant in a recorded call that Fernandez wanted to set up
26 UNITED STATES V. BARRAGAN
a meeting between two local gangs. 18 But the court’s
instruction prohibited the jury from considering the
statement for its truth. See Valerio, 441 F.3d at 844
(“Nothing the undercover informant said would be
considered by the jury for its truth, but only to give context
to what [the defendant] said, under the admonition.”). And
other evidence independently demonstrated Fernandez’s
role in setting up the meeting: In a subsequent recorded call,
Fernandez set the meeting time and specified how many
gang members would attend. See id. (noting that, although
informant’s statement could not be considered for its truth,
other testimony could be used to prove the same
proposition).
2. Confrontation Clause
“We review de novo claimed violations of the
Confrontation Clause.” United States v. Nielsen, 371 F.3d
574, 581 (9th Cir. 2004). The Clause “does not bar the use
of testimonial statements for purposes other than
establishing the truth of the matter asserted.” Crawford v.
Washington, 541 U.S. 36, 59 n.9 (2004). The informant’s
statements were not admitted for their truth, and “the
admission of such context evidence does not offend the
Confrontation Clause.” United States v. Tolliver, 454 F.3d
660, 666 (7th Cir. 2006).
18
A government agent also testified on direct examination that the
informant told him that Fernandez wanted to set up the meeting. But
Fernandez did not object to this testimony. And when Fernandez
objected to similar testimony on cross-examination, the district court
ultimately sustained the objection.
UNITED STATES V. BARRAGAN 27
F. Sufficiency of Evidence against Fernandez
Fernandez argues that the government failed to present
sufficient evidence of his participation in the RICO
conspiracy. “Where a defendant moves for acquittal at the
close of the government’s evidence, we review de novo
whether sufficient evidence exists to support a guilty
verdict.” United States v. Stewart, 420 F.3d 1007, 1014 (9th
Cir. 2005). In so doing, “we assess the evidence ‘in the light
most favorable to the prosecution,’ determining whether
‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Id. at
1014–15 (quoting United States v. Orozco-Santillan,
903 F.2d 1262, 1264 (9th Cir. 1990)).
The government presented sufficient evidence to sustain
Fernandez’s conviction. The jury heard testimony that a
Mafia member instructed the Diablos gang (to which
Fernandez belonged) to collect money from local drug
dealers using violence if necessary. The jury heard taped
conversations in which Fernandez subsequently scheduled a
meeting with gang leaders at which he suggested “touching
up” a recalcitrant drug dealer, who was robbed days later.
The jury also heard taped conversations implicating
Fernandez in at least one drug sale and a robbery. A rational
juror therefore could have concluded that Fernandez
“adopt[ed] the goal of furthering or facilitating” the Mafia’s
racketeering scheme. United States v. Fernandez, 388 F.3d
1199, 1229 (9th Cir. 2004) (quoting Salinas v. United States,
522 U.S. 52, 65 (1997)).
G. Prosecutor’s Remarks in Closing Argument
Before closing arguments, the district court instructed
the jury that, among other things, they must decide the case
28 UNITED STATES V. BARRAGAN
solely on the evidence and the lawyers’ statements are not
evidence. The prosecutor then began his closing as follows:
It’s been about five weeks since we first
started. The Mexican Mafia started years and
years ago, and it’s going to keep going years
and years from now. What brings us into this
courthouse here today isn’t some overblown,
overinflated, or overtried attempt to try to end
the Mexican Mafia for good. That’s
ridiculous.
But for these defendants, for what they did to
the community in 2010 and 2011, it’s finally
the chance to stand up and say no more. No
more robbery. No more dealing and pedaling
your meth to raise your money to buy your
guns. No more committing extortion. No
more beating the people of this community
and firing guns down the street. No more.
No more passing funds. No more meeting up
and coordinating who’s going to be able to
tax who in what territory, so that you can then
coordinate who gets the guns, who goes to the
hotels and the 7-Elevens, who goes up to the
AM/PM in the middle of the day to jack a
drug dealer as he sits there with his one-year-
old, but not a drug dealer. There’s just no
more, and it’s the only reason that we are here
today.
The defense objected, citing United States v. Sanchez,
659 F.3d 1252 (9th Cir. 2011); the court overruled the
objection. The prosecutor then spent hours recounting the
evidence against each defendant, occasionally making
UNITED STATES V. BARRAGAN 29
remarks such as “no more,” “it is time to put an end to that,”
and “enough is enough”; the court continued to overrule
defense objections.
After the argument, the defense moved for a mistrial,
arguing that the prosecutor improperly encouraged the jury
to send a message of deterrence. The court denied the
motion and declined to give a specific curative instruction,
but reminded the jury that lawyers’ statements are not
evidence and that “you are to decide this case solely on the
facts as you find them . . . and you’re not to base your
decision on anything else.”
Counsel for several defendants then responded to the
prosecutor’s remarks in their closing arguments. For
example, Fernandez’s lawyer argued:
And the government, the government, you’ll
recall, argued yesterday the only reason we
are here, and they had some emotional reason
for us to be here having to do with gangs or
communities, but that’s not true. That’s
false. The only reason we are here is to see if
the government can prove the facts, every
element of every offense, beyond a
reasonable doubt. That’s the reason we’re
here.
The government’s argument yesterday was to
ask you to convict because of prejudice and
fear, and I’m here to tell you that you took an
oath not to do that . . . .
To be clear, the government wants to
prejudice you. Question, how do you convict
someone without enough proof? And by
30 UNITED STATES V. BARRAGAN
proof, I don’t mean emotionally. By proof, I
mean facts. The answer is, you inflame the
jury. You scare them. . . .
Remember, these are some of the things the
government argued to inflame you. The
Mexican Mafia will endure. This is a chance
to say no more. This is the only reason we
are here, which had to do with protecting the
community. It’s time to say no more. It’s
time to put an end to it. Enough is enough.
This is about people who are touching this
community with brutality. It’s time to say no
more. It only happens by you. And all of that
is to distract you from the lack of facts tying
Hector Fernandez to any conspiracy. . . .
Why are they trying to scare you? They’re
hoping you’ll ignore the lack of facts
presented, and it’s an old prosecutor’s trick.
In fact, those arguments are a reason to doubt
the government’s case against Hector
Fernandez. Stooping to those arguments is a
reason to say the government hasn’t proved
it. 19
19
Similarly, Barragan’s lawyer argued:
And contrary to what the government lawyer was
saying yesterday, you don’t have a responsibility to
send a message to the Mexican Mafia. You don’t have
a responsibility to send a message to Jesus Barragan.
You don’t have a responsibility to send a message to
anybody in this case. You have a responsibility to
UNITED STATES V. BARRAGAN 31
On appeal, all appellants argue that the prosecutor’s
remarks warrant reversal. “When the defendant objects to
alleged prosecutorial misconduct, the standard of review is
abuse of discretion.” United States v. Nobari, 574 F.3d
1065, 1073 (9th Cir. 2009) (quoting United States v. Steele,
298 F.3d 906, 910 (9th Cir. 2002)). “Analysis of a claim of
prosecutorial misconduct focuses on its asserted impropriety
and substantial prejudicial effect.” United States v.
Weatherspoon, 410 F.3d 1142, 1145 (9th Cir. 2005).
1. Impropriety
The prosecutor’s remarks crossed the line.
“[P]rosecutors may not urge jurors to convict a criminal
defendant in order to protect community values, preserve
civil order, or deter future lawbreaking. The evil lurking in
such prosecutorial appeals is that the defendant will be
convicted for reasons wholly irrelevant to his own guilt or
innocence.” Sanchez, 659 F.3d at 1256 (quoting Nobari,
574 F.3d at 1076); see also ABA Standards for Criminal
Justice 3-6.8(c) (4th ed. 2015) (“The prosecutor should not
make arguments calculated to appeal to improper prejudices
of the trier of fact. The prosecutor should make only those
arguments that are consistent with the trier’s duty to decide
the case on the evidence, and should not seek to divert the
evaluate the evidence dispassionately, but to arrive at
a just verdict and to follow the law.
And counsel for co-defendant Hector Garcia argued:
The facts are overblown, and it is a case where the
government has overtried and overtried, and they’ve
done so with an absolutely cunning, calculating plan
to scare you to death so you’ll convict on nothing more
than your fear.
32 UNITED STATES V. BARRAGAN
trier from that duty.”). Here, the prosecutor emphasized the
violent nature of the defendants’ crimes and repeatedly
urged the jury to say “no more.” Although the government
argues that these remarks simply asked the jury to hold the
defendants accountable for their actions, we disagree.
Rather, statements like “No more beating the people of this
community and firing guns down the street” invited the jury
to convict for a non-evidentiary reason: to protect the
community against future violence. “While commentary on
a defendant’s future dangerousness may be proper in the
context of sentencing, it is highly improper during the guilt
phase of a trial.” N. Mariana Islands v. Mendiola, 976 F.2d
475, 487 (9th Cir. 1992), overruled on other grounds by
George v. Camacho, 119 F.3d 1393, 1394 (9th Cir. 1997)
(en banc).
2. Prejudice
“Inappropriate prosecutorial comments, standing alone,
would not justify a reviewing court to reverse a criminal
conviction obtained in an otherwise fair proceeding.”
United States v. Young, 470 U.S. 1, 11 (1985). We “must
consider the probable effect the prosecutor’s [comments]
would have on the jury’s ability to judge the evidence
fairly,” “within the context of the trial.” Id. at 12. 20
20
We have described this standard in various ways. See, e.g., United
States v. Alcantara-Castillo, 788 F.3d 1186, 1190 (9th Cir. 2015)
(improper remarks warrant reversal only if “it appears more probable
than not that [they] materially affected the fairness of the trial” (quoting
United States v. Ruiz, 710 F.3d 1077, 1082 (9th Cir. 2013))); United
States v. Del Toro-Barboza, 673 F.3d 1136, 1150 (9th Cir. 2012)
(improper remarks warrant reversal only if “they are so gross as probably
to prejudice the defendant” (quoting United States v. Navarro, 608 F.3d
529, 535–36 (9th Cir. 2010))); United States v. Tucker, 641 F.3d 1110,
UNITED STATES V. BARRAGAN 33
a. Barragan, Franco, and Gutierrez
An “important factor contributing to the prejudicial
effect of improper statements is the strength of the case
against a defendant.” Sanchez, 659 F.3d at 1260 (quoting
Weatherspoon, 410 F.3d at 1151). The evidence against
Barragan, Franco, and Gutierrez was overwhelming, and
they do not argue otherwise. Thus, we conclude that the
prosecutor’s remarks did not prejudice them. See Nobari,
574 F.3d at 1082 (holding that prosecutor’s remarks were
harmless in light of “overwhelming” evidence against
defendants).
b. Fernandez
The evidence against Fernandez was not as
overwhelming. Nonetheless, we conclude that it is not
probable that the prosecutor’s remarks prejudiced him. The
evidence of his participation in the RICO conspiracy was
quite substantial: Fernandez belonged to a gang which the
Mafia had instructed to collect money from drug dealers, and
he scheduled a meeting with gang leaders at which he
suggested robbing a recalcitrant drug dealer. See United
States v. Koon, 34 F.3d 1416, 1446 (9th Cir. 1994)
(“[U]nlike cases in which there is little evidence on which
the jurors could base a conviction, in this case there was
substantial independent evidence to support a finding of
1120 (9th Cir. 2011) (improper remarks warrant reversal only if “it is
more probable than not that [they] materially affected the verdict”
(quoting United States v. Tam, 240 F.3d 797, 802 (9th Cir. 2001))). But,
the basic inquiry is whether prejudice is probable, not just possible. See
United States v. Valle-Valdez, 554 F.2d 911, 916 (9th Cir. 1977)
(improper remarks by counsel are generally “nonconstitutional” error
and therefore “measured against the more-probable-than-not standard”).
34 UNITED STATES V. BARRAGAN
guilt.”), rev’d in part on other grounds sub nom. Koon v.
United States, 518 U.S. 81 (1996).
We also consider “the substance of any curative
instructions.” Sanchez, 659 F.3d at 1257. A curative
instruction can neutralize the harm of a prosecutor’s
improper statements if it is given “immediately after the
damage [is] done” and mentions “the specific statements.”
Id. at 1258 (quoting Weatherspoon, 410 F.3d at 1151). Here,
the district court’s cautionary instruction—that lawyers’
statements are not evidence and that the jury must decide the
case solely on the facts—did not immediately follow or
mention the challenged remarks, and therefore did not
suffice by itself to neutralize any harm. Id. But, the
instruction did come directly after the prosecutor’s initial
argument and reminded the jury of its proper role, thus
reducing the risk that the jury would convict out of a concern
for safety. See United States v. Wright, 625 F.3d 583, 613
(9th Cir. 2010) (general instruction that lawyers’ statements
are not evidence, given before and after closing argument,
“mitigated” prosecutor’s improper remarks), superseded by
statute on other grounds as recognized by United States v.
Brown, 785 F.3d 1337, 1351 (9th Cir. 2015).
Moreover, the prosecutor’s remarks were less egregious
than in cases where we have reversed. In Sanchez,
Weatherspoon, and Mendiola, the prosecutor’s appeal to
non-evidentiary considerations was explicit and
unmistakable. See Sanchez, 659 F.3d at 1256, 1259
(prosecutor argued that siding with the defendant would
“send a memo to all drug traffickers” enabling their crimes;
we described that as “a fully developed argument”);
Weatherspoon, 410 F.3d at 1149 (prosecutor repeatedly
argued that a conviction “is gonna make you comfortable
knowing there’s not convicted felons on the street with
UNITED STATES V. BARRAGAN 35
loaded handguns”; we described that as an “entire line of
argument, made even more indefensible by its repetition”);
Mendiola, 976 F.2d at 486–87 (prosecutor argued “[t]hat gun
is still out there. If you say not guilty, he walks out right out
the door, right behind you”; we described that as “a far cry
from a few unwise comments”). Here, the prosecutor’s “no
more” mantra impliedly invited the jury to consider
community safety, but did not expressly urge them to do so.
Cf. United States v. de Cruz, 82 F.3d 856, 862 (9th Cir. 1996)
(holding that prosecutor’s statement that crime “shouldn’t go
on” was “simply a way of saying that defendant had engaged
in criminal conduct and should not be permitted to continue
that criminal conduct”).
In addition, the vast majority of the prosecutor’s
argument focused on the evidence. See Koon, 34 F.3d at
1445 (noting that “appellants have drawn a few sentences
from a trial that lasted over a month and from detailed
closing arguments that lasted many hours”). Fernandez’s
lawyer thoroughly responded to the improper remarks in his
own closing. Compare Wright, 625 F.3d at 613 (improper
comment “was mitigated by defense counsel’s excellent
rebuttal”), with Sanchez, 659 F.3d at 1261 (improper
comment was “the last argument the jury heard before going
to the jury room to deliberate”). And the jury acquitted
Fernandez of one of the two charges against him, indicating
that they reviewed the evidence objectively. See Young,
470 U.S. at 18 n.15 (partial acquittal “reinforces our
conclusion that the prosecutor’s remarks did not undermine
the jury’s ability to view the evidence independently and
fairly”); Wright, 625 F.3d at 613 (same); de Cruz, 82 F.3d at
863 (same); Koon, 34 F.3d at 1446 (same).
In these circumstances, we conclude that the
prosecutor’s remarks, while improper, did not have a
36 UNITED STATES V. BARRAGAN
“probable effect” on the jury’s ability to judge the evidence
fairly. Young, 470 U.S. at 12. Like the Second Circuit,
“[w]e share the frustration voiced by commentators at the
inability of some federal prosecutors to abide by well-
established rules limiting the types of comments permissible
in summation.” United States v. Modica, 663 F.2d 1173,
1183–84 (2d Cir. 1981) (per curiam). But, like our sister
circuit, “we disagree that the solution lies in reversing valid
convictions.” Id. at 1184. Although we find no reversible
error here, we urge the government, trial judges, and
professional licensing authorities to take seriously their
responsibility to ensure that closing arguments in criminal
cases focus on the evidence, not on broader considerations
such as community safety. See id. at 1184–86 (describing
remedies for prosecutorial misconduct, including reprimand,
contempt penalties, disciplinary proceedings, and
suspension).
We recognize—and lament—that in the absence of a
reversal, some prosecutors may infer from today’s opinion
that whatever works is permissible. That would be the
wrong conclusion; we today only conclude that the
prosecutor’s improper argument was limited in nature,
addressed by the district court, and did not have a probable
effect on the jury’s verdict in light of the entire record. But
forewarned is forearmed. On a different record, we will not
hesitate to reverse or even suggest sanctions. See, e.g.,
Sanchez, 659 F.3d at 1261 (reversing and remanding for new
trial based on prosecutor’s improper remarks).
H. Requested Jury Instructions
The district court gave the jury twenty-two pages of
instructions on the RICO charge. On appeal, Fernandez
argues that the court erred in refusing to give certain
instructions he requested.
UNITED STATES V. BARRAGAN 37
A defendant is entitled to an instruction on a defense
theory that (1) has some foundation in the evidence
presented, (2) is supported by law, and (3) is not adequately
covered by other instructions. United States v. Thomas,
612 F.3d 1107, 1120 (9th Cir. 2010). We review for abuse
of discretion whether an instruction is grounded in the
evidence, and de novo whether an instruction is supported
by law or adequately covered by other instructions. Id. at
1120–22.
1. Conspiracy with informant
Relying on United States v. Escobar de Bright, 742 F.2d
1196 (9th Cir. 1984), Fernandez requested an instruction that
he could not be convicted of conspiring with a government
informant:
A defendant in a criminal case can never be
convicted of conspiring with a government
agent or informant. Thus, I instruct you that
you may not find that any defendant
conspired with government informant Hector
Cruz, aka “Troy.”
This instruction misstates the law. Escobar de Bright held
that a defendant who conspires “only with a government
agent” is not guilty of conspiracy. 742 F.2d at 1197
(emphasis added). If at least one co-conspirator is not a
government agent, a conspiracy conviction is permitted. See
United States v. Ching Tang Lo, 447 F.3d 1212, 1225–26
(9th Cir. 2006). The district court did not abuse its discretion
in finding that the evidence did not suggest Fernandez’s
involvement in the RICO conspiracy was limited to a
conspiracy with a government informant. For example,
Fernandez proposed “touching up” a drug dealer at a
38 UNITED STATES V. BARRAGAN
meeting with two gang leaders, neither of whom was an
informant.
2. Buyer-seller relationships
Relying on United States v. Lennick, 18 F.3d 814, 819
(9th Cir. 1994), and cases from other circuits, 21 Fernandez
requested an instruction that his mere purchase of drugs did
not establish participation in a conspiracy:
The government has attempted to prove that
on July 11, 2011 Hector Fernandez purchased
narcotics. That transaction, if proved beyond
a reasonable doubt, is insufficient to support
a conspiracy charge if the evidence proves
only that Mr. Fernandez purchased narcotics
to use.
Similarly, relying on United States v. Mincoff, 574 F.3d 1186
(9th Cir. 2009), Fernandez requested an instruction that his
mere sale of drugs did not establish participation in a
conspiracy:
The government has introduced evidence that
Hector Fernandez sold heroin to government
informant Hector Cruz, aka Troy on May 3,
2011. The sale of narcotics, standing alone,
does not establish a conspiracy to distribute
narcotics; rather, the government must
establish beyond a reasonable doubt that the
buyer and seller in a narcotics transaction had
21
United States v. Donnell, 596 F.3d 913, 924–25 (8th Cir. 2010);
United States v. Bacon, 598 F.3d 772, 777 (11th Cir. 2010) (per curiam);
United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010); United
States v. Deitz, 577 F.3d 672, 680 (6th Cir. 2009).
UNITED STATES V. BARRAGAN 39
an agreement to further distribute the
narcotics in question or that the sale was
made pursuant to a different conspiracy.
These instructions seem intended as a defense against the
charge of conspiracy to distribute methamphetamine.
Because Fernandez was acquitted of that charge, the failure
to give these instructions did not prejudice him on that score.
To the extent the instructions were aimed at the RICO
charge, the district court did not abuse its discretion in
finding that the evidence did not suggest Fernandez’s
involvement in the conspiracy was limited to a mere
purchase or sale of drugs. Moreover, a drug sale can be a
predicate act supporting a RICO charge. See 18 U.S.C.
§ 1961(1). And the district court’s detailed jury instructions,
including the requirement that Fernandez “agreed that either
[he] or a co-conspirator would conduct or participate, either
directly or indirectly, in the conduct of the affairs of the
[Mafia] enterprise through a pattern of racketeering
activity,” allayed any risk that the jury concluded that a mere
drug purchase or sale was sufficient.
3. Victim of extortion
Relying on Gebardi v. United States, 287 U.S. 112
(1932), and cases from other circuits, 22 Fernandez requested
an instruction that the government prove he was not a victim
of extortion:
In general, a victim of extortion is not a
participant (co-conspirator or aider and
22
United States v. Brock, 501 F.3d 762 (6th Cir. 2007); United
States v. Spitler, 800 F.2d 1267 (4th Cir. 1986).
40 UNITED STATES V. BARRAGAN
abettor) in the extortion, even though
payment may facilitate the activities of a
RICO organization. Thus, the government
must prove beyond a reasonable doubt any
defendant charged in this case was not a
victim of extortion.
This instruction was not supported by law. No case cited by
Fernandez suggests that a low-level member of a RICO
conspiracy can escape conviction simply because higher-ups
exacted payment from him. See Gebardi, 287 U.S. at 119–
23 (holding that a woman’s consent to be transported for
prostitution does not amount to a conspiracy with her
transporter to violate the Mann Act); United States v. Brock,
501 F.3d 762, 766–71 (6th Cir. 2007) (holding that bribing
a public official does not amount to a conspiracy with that
official to extort the briber under the Hobbs Act); United
States v. Spitler, 800 F.2d 1267, 1274–75, 1278 (4th Cir.
1986) (affirming conviction for aiding and abetting extortion
under Hobbs Act where defendant was not “mere victim”).
Moreover, the district court did not abuse its discretion in
finding that the evidence did not suggest Fernandez was a
mere victim of the racketeering scheme.
I. Unrequested “Anonymous Jury” Instruction
Before trial, the government moved to empanel an
anonymous jury to ensure that the defendants would not
harm or intimidate jurors. The district court held that jurors
would be referred to in court by numbers only, but that the
attorneys would be given the names of all prospective jurors
in advance to do background checks, without divulging
those names to their clients. Each prospective juror filled
out a questionnaire that stated:
UNITED STATES V. BARRAGAN 41
All of the information in this questionnaire
will be kept confidential. It will be reviewed
only by the court and by the attorneys on each
side. Neither your identities nor your
answers will be released to the general public
or the media.
During voir dire, the judge asked prospective jurors to hold
up their numbers when speaking, explaining “I don’t know
your names. I only know your number.” The judge excused
Juror 3 on voir dire because she said she had a strong opinion
against the Mafia, had a heart condition, and felt a little
scared.
On the second day of trial, Juror 31 gave the judge a note:
“I’m concerned that my child that attends San Marcos High
. . . might be connected to me. If family members of the
defendants see me pick him up at school, they may target
him.” In a private conversation with the judge, Juror 31
expressed doubt that he could be impartial but said he did
not tell other jurors about his concerns. The judge excused
Juror 31, telling the other jurors that he had “a conflict.”
On the tenth day of trial, Juror 51 said he was concerned
that people in the audience were texting, and Juror 13 said
she feared that the trial was being recorded because she saw
a phone sticking out of someone’s shirt pocket. In response,
the judge explained to the jury that “everyone in the audience
knows and they have been admonished that they cannot
record” and that the audience is allowed to “look at their e-
mails and text as long as there is no abuse.”
On appeal, Barragan and Franco argue that the district
court’s failure to give the jurors an explanation for their
anonymity requires a new trial. Because this argument was
42 UNITED STATES V. BARRAGAN
not raised below, we review for plain error. United States v.
Fuchs, 218 F.3d 957, 961–62 (9th Cir. 2000).
We find no plain error. The risk in using an anonymous
jury is that jurors “may infer that the dangerousness of those
on trial required their anonymity, thereby implicating
defendants’ Fifth Amendment right to a presumption of
innocence.” United States v. Shryock, 342 F.3d 948, 971
(9th Cir. 2003). The district court must adopt reasonable
safeguards to minimize this risk, such as telling the jury that
the reason for their anonymity is to protect their privacy, or
that anonymity is common in federal court. Id. at 972–73.
Here, the district court took some precautions. The
questionnaire stated that jurors’ information would be
reviewed “by the court and by the attorneys” but not
“released to the general public or the media,” suggesting that
the reason for anonymity was publicity-related. The court
did not state that jurors’ identities were being withheld from
the defendants or that juror anonymity was unique to this
case. The court repeatedly instructed the jury to presume
innocence. Every time a juror expressed fear, the court
either excused the juror or gave an explanatory instruction.
We know of no case requiring more. See United States v.
Olano, 507 U.S. 725, 734 (1993) (plain error must be “clear
under current law”).
III. SENTENCING ISSUES
A. Career Offender Enhancement
The district court sentenced Barragan and Gutierrez as
career offenders. An adult defendant is a career offender
under the sentencing guidelines if (1) “the instant offense of
conviction is a felony that is either a crime of violence or a
controlled substance offense,” and (2) “the defendant has at
UNITED STATES V. BARRAGAN 43
least two prior felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G.
§ 4B1.1(a). We review a career offender finding de novo.
United States v. Mitchell, 624 F.3d 1023, 1026 (9th Cir.
2010).
1. Barragan
Barragan does not contest that he was convicted of a
controlled substance offense in this case. But, he challenges
the district court’s determinations that (1) his prior robbery
conviction under California Penal Code § 211 was for a
crime of violence, and (2) his prior drug trafficking
conviction under California Health and Safety Code § 11379
was for a controlled substance offense.
a. California Penal Code § 211 conviction
Section 211 defines robbery as “the felonious taking of
personal property in the possession of another, from his
person or immediate presence, and against his will,
accomplished by means of force or fear.” In United States
v. Becerril-Lopez, we held that a conviction under this
section was categorically a crime of violence for purposes of
U.S.S.G. § 2L1.2, which imposed an enhancement on aliens
who unlawfully re-entered after committing a crime of
violence. 541 F.3d 881, 889–93 (9th Cir. 2008). We
observed that the commentary to § 2L1.2 defined “crime of
violence” to include several specific offenses, including
“robbery” and “extortion.” Id. at 890. 23 And, we reasoned,
23
Specifically, the commentary stated:
“Crime of violence” means any of the following:
murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, statutory rape, sexual
44 UNITED STATES V. BARRAGAN
a conviction under California Penal Code § 211 necessarily
involves either “robbery” or “extortion,” generically
defined. Id. at 891–92.
The career offender provision in effect at the time of
Barragan’s sentencing is similar to the guidelines provision
at issue in Becerril-Lopez. The career offender provision
defined “crime of violence” to include “extortion,” and its
commentary specified that “robbery” is also included.
U.S.S.G. § 4B1.2(a) & cmt. n.1 (2012). 24 Thus, a conviction
abuse of a minor, robbery, arson, extortion,
extortionate extension of credit, burglary of a
dwelling, or any offense under federal, state, or local
law that has as an element the use, attempted use, or
threatened use of physical force against the person of
another.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2005).
24
Specifically, the text stated:
The term “crime of violence” means any offense under
federal or state law, punishable by imprisonment for a
term exceeding one year, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
U.S.S.G. § 4B1.2(a) (2012). The commentary stated in relevant part:
“Crime of violence” includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses,
UNITED STATES V. BARRAGAN 45
under California Penal Code § 211—which necessarily
involves either generic robbery or generic extortion—was
categorically a “crime of violence” for purposes of the career
offender provision.
Barragan relies on United States v. Dixon, which held
that a conviction under California Penal Code § 211 was not
categorically a “violent felony” for purposes of the Armed
Career Criminal Act. 805 F.3d 1193, 1195–98 (9th Cir.
2015). In Dixon, however, we distinguished Becerril-Lopez
on the ground that the Act did not expressly include both
robbery and extortion in its definition of “violent felony.”
Id. at 1196. That distinction is not applicable here; the
commentary to the career offender provision included both
crimes. U.S.S.G. § 4B1.2 cmt. n.1 (2012).
Barragan also cites United States v. Soto-Rivera, which
declined to rely on the commentary to the career offender
provision in defining “crime of violence.” 811 F.3d 53, 59–
61 (1st Cir. 2016). But the First Circuit reasoned that the
commentary appeared to conflict with the text of the
provision, given the government’s concession that the
residual clause in the text was unconstitutionally vague. Id.
The Supreme Court has since held, however, that the
residual clause of the career offender provision is not
unconstitutionally vague. Beckles v. United States, 137 S.
Ct. 886, 890 (2017). And, the text of the provision now
robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling.
Id. § 4B1.2 cmt. n.1 (2012).
46 UNITED STATES V. BARRAGAN
expressly includes both “robbery” and “extortion.” U.S.S.G.
§ 4B1.2(a) (2016). 25
b. California Health & Safety Code § 11379
conviction
California Health and Safety Code § 11379 prohibits
transporting, importing, selling, furnishing, administering,
or giving away certain drugs (or offering or attempting to do
so). The government concedes that a violation of this section
is not categorically a controlled substance offense. Thus, the
government relies on the “modified categorical approach,”
which “allows courts to look beyond the statutory text to a
limited set of documents to determine the elements of the
state offense of which the defendant was convicted.”
Rendon v. Holder, 764 F.3d 1077, 1083 (9th Cir. 2014).
Courts may use the modified categorical approach “only
25
The current text states:
The term “crime of violence” means any offense under
federal or state law, punishable by imprisonment for a
term exceeding one year, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or
(2) is murder, voluntary manslaughter,
kidnapping, aggravated assault, a forcible sex
offense, robbery, arson, extortion, or the use or
unlawful possession of a firearm described in
26 U.S.C. § 5845(a) or explosive material as
defined in 18 U.S.C. § 841(c).
U.S.S.G. § 4B1.2(a) (2016).
UNITED STATES V. BARRAGAN 47
when a statute is divisible—i.e., ‘lists multiple, alternative
elements, and so effectively creates several different
crimes.’” Id. (alteration omitted) (quoting Descamps v.
United States, 133 S. Ct. 2276, 2285 (2013)).
Barragan argues that § 11379 is not divisible. We
recently rejected an identical argument in United States v.
Martinez-Lopez, holding that an analogous provision of the
California Health and Safety Code, § 11352, is “divisible
with regard to both its controlled substance requirement and
its actus reus requirement.” 864 F.3d 1034, 1044 (9th Cir.
2017) (en banc). Thus, after reviewing the judicially
noticeable records of Barragan’s § 11379 conviction, the
district court properly concluded that the conviction was for
selling methamphetamine, a controlled substance offense.
U.S.S.G. § 4B1.2(b). 26
26
Because Barragan was a career offender, he faced a 360-months-
to-life guidelines range for one of his drug convictions in this case:
distributing more than 50 grams of pure methamphetamine (Count 8).
See U.S.S.G. § 4B1.1(b); 21 U.S.C. § 841(b)(1)(A)(viii); U.S.S.G. ch. 5,
pt. A. The district court correctly calculated this range. The court also
calculated a 360-months-to-life range for his RICO conviction (Count
1), a 360-months-to-life range for his drug conspiracy conviction (Count
6), and a 262-to-367-months range for his other drug distribution
conviction (Count 7), ultimately sentencing him to 320 months on all
counts to run concurrently.
Barragan argues that the district court failed to group his drug
offenses together when calculating guidelines ranges. But, because he
faced a 360-months-to-life range for one of his drug convictions, any
such error was harmless. See United States v. Seljan, 547 F.3d 993, 1007
(9th Cir. 2008) (en banc) (possible grouping error did not require
resentencing because “the result would have been the same either way”).
48 UNITED STATES V. BARRAGAN
2. Gutierrez
The government concedes that the district court erred in
classifying Gutierrez as a career offender because his
conviction in this case was not for a crime of violence or a
controlled substance offense. We agree, vacate Gutierrez’s
sentence, and remand for resentencing on an open record.
See United States v. Matthews, 278 F.3d 880, 885–86 (9th
Cir. 2002) (en banc). 27
B. RICO Conspiracy Sentencing
Through its verdicts of guilt on the RICO charge, the jury
necessarily found that each defendant agreed that he or a co-
conspirator would participate in Mafia affairs through a
“pattern of racketeering activity,” also known as predicate
acts. 18 U.S.C. § 1962(c), (d). Under the sentencing
guidelines, the offense level for a RICO conspiracy
conviction may depend on which predicate acts were
reasonably foreseeable and attributable to a defendant. See
U.S.S.G. § 2E1.1 (setting base offense level for RICO
conviction at either 19 or “the offense level applicable to the
underlying racketeering activity,” whichever is greater);
United States v. Carrozza, 4 F.3d 70, 74–77 (1st Cir. 1993)
(explaining that the term “underlying racketeering activity”
refers to any predicate act that is relevant conduct under
U.S.S.G. § 1B1.3). The indictment in this case alleged many
predicate acts, but the jury verdicts did not specify which
were attributable to any particular defendant. At sentencing,
the district court found certain predicate acts attributable to
We therefore do not treat Gutierrez’s other attacks on his sentence.
27
See United States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir.
2011) (per curiam).
UNITED STATES V. BARRAGAN 49
each defendant, based on a preponderance of the evidence
presented at trial.
1. Findings of predicate acts
Barragan and Franco argue that the district court erred in
attributing to them predicate acts that the jury verdicts did
not. Similarly, Barragan argues that the court erred in
attributing to him predicate acts of which he was acquitted
or which were not formally charged in the indictment. These
arguments fail.
District courts are generally “free to make factual
determinations not made by the jury and may base their
ultimate decisions regarding the length of a convicted
criminal’s sentence on these determinations.” United States
v. Staten, 466 F.3d 708, 719 (9th Cir. 2006). Like our sister
circuits, we have held that district courts may consider
criminal conduct that the jury did not find—indeed, even
conduct for which the jury acquitted—in setting the offense
level for RICO sentences. See United States v. Mercado,
474 F.3d 654, 657 (9th Cir. 2007) (holding that “the district
court could constitutionally consider the acquitted conduct”
in RICO sentencing); 28 Carrozza, 4 F.3d at 77 (holding that
“underlying racketeering activity” in RICO guidelines
includes “any act, whether or not charged against defendant
personally, that qualifies as a RICO predicate act under
18 U.S.C. § 1961(1) and is otherwise relevant conduct under
§ 1B1.3” (footnote omitted)); United States v. Pica, 692 F.3d
79, 88 (2d Cir. 2012) (holding that “district court may treat
28
Barragan contends that Mercado was incorrectly decided. See
Mercado, 474 F.3d at 660 (B. Fletcher, J., dissenting) (“I conclude that
the consideration of acquitted conduct violates the Sixth Amendment.”).
But, we cannot overrule a previous decision of this court. In re
Complaint of Ross Island Sand & Gravel, 226 F.3d at 1018.
50 UNITED STATES V. BARRAGAN
acquitted conduct as relevant conduct at sentencing”);
United States v. Massimino, 641 F. App’x 153, 168 (3d Cir.
2016) (non-precedential) (holding that sentencing court “is
permitted to consider evidence of both uncharged acts and
evidence underlying counts on which the defendant has been
acquitted”); United States v. Tocco, 306 F.3d 279, 286 (6th
Cir. 2002) (explaining that “underlying racketeering
activity” in RICO guidelines includes reasonably
foreseeable acts of co-conspirators as determined by district
court); United States v. Darden, 70 F.3d 1507, 1545 (8th Cir.
1995) (noting that “district court may consider uncharged,
relevant conduct” at sentencing (quoting United States v.
Ballew, 40 F.3d 936, 943 (8th Cir. 1994)). 29
Franco cites a footnote from one of our opinions stating
that two other circuits “have suggested that it is the duty of
the government to seek a special verdict when the
information sought is relevant to the sentence to be
imposed.” United States v. Vasquez-Velasco, 15 F.3d 833,
847 n.11 (9th Cir. 1994). But we distinguished those cases
as involving either a “count that charged the violation of
more than one statutory provision” or a “count that charged
the violation of a single conspiracy statute that has more than
one object.” Id. Neither is the case here. 30
29
Although the Sixth Amendment requires that the jury decide any
fact which “increases the penalty for a crime beyond the prescribed
statutory maximum,” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),
or which “increases the mandatory minimum,” Alleyne v. United States,
133 S. Ct. 2151, 2155 (2013), appellants identify no instance in which
the district court usurped this role.
30
RICO conspiracies are “single object” conspiracies. United States
v. Fernandez, 388 F.3d 1199, 1260 n.45 (9th Cir. 2004) (quoting United
States v. Corrado, 227 F.3d 528, 541–42 (6th Cir. 2000)).
UNITED STATES V. BARRAGAN 51
2. Standard of proof
Barragan, Franco, and Fernandez also argue that the
district court was required to find facts beyond a reasonable
doubt. These arguments fail.
“Ordinarily, a district court uses a preponderance of the
evidence standard of proof when finding facts at sentencing
. . . .” United States v. Treadwell, 593 F.3d 990, 1000 (9th
Cir. 2010). Appellants urge us to follow the Eleventh
Circuit, which requires district courts to use a beyond-a-
reasonable-doubt standard when determining predicate acts
after a general verdict. United States v. Nguyen, 255 F.3d
1335, 1340–42 (11th Cir. 2001). Nguyen reached that
conclusion by analogizing to a situation where a defendant
is “convicted of a multi-object conspiracy,” id. at 1341, in
which case a general provision of the guidelines governs:
A conviction on a count charging a
conspiracy to commit more than one offense
shall be treated as if the defendant had been
convicted on a separate count of conspiracy
for each offense that the defendant conspired
to commit.
U.S.S.G. § 1B1.2(d). 31
We decline the invitation; “every other circuit to
consider the question has held that § 1B1.2(d) does not apply
to RICO conspiracies.” United States v. Garcia, 754 F.3d
31
The commentary to § 1B1.2(d) explains that the provision “should
only be applied with respect to an object offense alleged in the
conspiracy count if the court, were it sitting as a trier of fact, would
convict the defendant of conspiring to commit that object offense.”
U.S.S.G. § 1B1.2 cmt. n.4.
52 UNITED STATES V. BARRAGAN
460, 482 (7th Cir. 2014) (citing Carrozza, 4 F.3d at 79–80;
United States v. Massino, 546 F.3d 123, 135 (2d Cir. 2008)
(per curiam); United States v. Corrado, 227 F.3d 528, 541–
42 (6th Cir. 2000)). These circuits correctly reject Nguyen’s
analogy to a multi-object conspiracy because “RICO
conspiracies are of the single-object variety, with the object
being to engage in racketeering. The predicate racketeering
acts are not, in themselves, conspiratorial objects.” Id.
Consistent with that characterization, we have described
RICO conspiracies as “single object” conspiracies. United
States v. Fernandez, 388 F.3d 1199, 1260 n.45 (9th Cir.
2004) (quoting Corrado, 227 F.3d at 541–42); see also
United States v. Zemek, 634 F.2d 1159, 1170 n.15 (9th Cir.
1980) (“The essence of a RICO conspiracy is not an
agreement to commit predicate crimes but an agreement to
conduct or participate in the conduct of the affairs of an
enterprise through a pattern of racketeering.”).
Barragan and Franco argue in the alternative that the
district court was required to find facts by clear and
convincing evidence. “[W]here an extremely
disproportionate sentence results from the application of an
enhancement, the government may have to satisfy a ‘clear
and convincing’ standard.” Treadwell, 593 F.3d at 1000
(quoting United States v. Zolp, 479 F.3d 715, 718 (9th Cir.
2007)). “We impose this requirement to ensure that
legislatures ‘cannot evade [the constitutionally required
standard of proof] by reclassifying an element of a crime as
a sentencing factor,’ thereby depriving a defendant of
important criminal procedural protections.” Id. (alteration in
original) (quoting United States v. Harrison-Philpot,
978 F.2d 1520, 1523 (9th Cir. 1992)). Whether the clear-
and-convincing standard is required depends on the totality
of the circumstances, which include:
UNITED STATES V. BARRAGAN 53
(1) whether the enhanced sentence falls
within the maximum sentence for the crime
alleged in the indictment;
(2) whether the enhanced sentence negates
the presumption of innocence or the
prosecution’s burden of proof for the crime
alleged in the indictment;
(3) whether the facts offered in support of the
enhancement create new offenses requiring
separate punishment;
(4) whether the increase in sentence is based
on the extent of a conspiracy;
(5) whether an increase in the number of
offense levels is less than or equal to four;
and
(6) whether the length of the enhanced
sentence more than doubles the length of the
sentence authorized by the initial sentencing
guideline range in a case where the defendant
would otherwise have received a relatively
short sentence.
Id.
The main hurdle for appellants is the fourth factor. “We
have repeatedly held that sentencing determinations relating
to the extent of a criminal conspiracy need not be established
by clear and convincing evidence.” Id. at 1001. The first
and second factors also weigh against appellants, as their
sentences are less than the maximum and do not negate the
54 UNITED STATES V. BARRAGAN
presumption of innocence or the prosecution’s burden of
proof for the RICO conspiracy.
The third factor arguably favors appellants, because
many of the predicate acts found by the district court could
have been charged as separate offenses. But the court found
only that the acts were attributable to the defendants as part
of the RICO conspiracy, not that the defendants committed
the acts. Moreover, the defendants had the opportunity to
dispute the existence or relevance of these acts, because the
district court’s fact-finding “was based on the evidence
presented at trial on the conspiracy charge.” Id.
The fifth factor favors appellants, especially Franco.
Franco asserts that the district court’s fact-finding increased
his offense level by seventeen; Barragan asserts that the fact-
finding increased his offense level by eight; the government
does not dispute either assertion. The sixth factor also favors
Franco. He asserts, and the government does not dispute,
that his ultimate sentence was four times the initial
guidelines range. 32
In these circumstances, our previous decisions indicate
that the clear-and-convincing standard was not required. In
Treadwell, the defendants were convicted of a Ponzi scheme
and the district court imposed a 22-level enhancement based
on the amount of money it deemed lost, increasing the
Guidelines range from 30–37 months to 324–405 months.
593 F.3d at 994–95 & 1001 n.8. Despite the severity of the
enhancement, we approved the preponderance-of-evidence
standard, explaining: “The loss enhancement is based on a
conspiracy conviction, and [the defendants] had ample
32
Barragan concedes that the sixth factor does not favor him, as his
sentence was not doubled.
UNITED STATES V. BARRAGAN 55
opportunity at trial to challenge the government’s evidence
of the extent of losses caused by the conspiracy. . . . The
enhancement was large, but that alone does not raise the due
process concerns that urge ‘clear and convincing’ proof.” Id.
at 1001–02. Similarly, in Harrison-Philpot, the defendant
was convicted of drug charges and the district court imposed
an 18-level enhancement based on the amount of drugs it
deemed involved, increasing the guidelines range from 41–
51 months to 292–365 months. 978 F.2d at 1522. Again,
we approved the preponderance-of-evidence standard:
“Harrison-Philpot was charged and convicted of conspiracy;
the extent of the conspiracy caused the tremendous increase
in her sentence.” Id. at 1523. Here too, then, the district
court was permitted to find facts relating to the extent of the
conspiracy by a preponderance of evidence. 33
IV. CONCLUSION
We affirm the convictions of all appellants; affirm the
sentences of Barragan, 34 Franco, 35 and Fernandez; and
vacate Gutierrez’s sentence and remand for resentencing on
an open record.
33
Barragan also argues that one of the district court’s findings was
erroneous under the preponderance-of-evidence standard. We disagree.
The district court did not clearly err in determining that, when Barragan
gave a gun to Cruz and told him it was “to collect the money and for
whatever popped up,” an attempted murder was reasonably foreseeable.
34
Barragan’s reply brief cites two recent guidelines amendments. If
Barragan believes these amendments affect his sentence, he may seek
relief from the district court in the first instance. See United States v.
Boykin, 785 F.3d 1352, 1364 n.9 (9th Cir. 2015).
35
We do not consider Franco’s claim of credit for time served in
state custody, which he has informed us is moot.