United States v. Donnie Bryant , 357 F. App'x 945 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 16 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10348
Plaintiff - Appellee, D.C. No. 2:06-CR-234-PMP-GWF
v.
MEMORANDUM *
DONNIE BRYANT,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted December 2, 2009
San Francisco, California
Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.
Donnie Bryant was convicted on several counts under the Violent Crimes in
Aid of Racketeering Activity (“VICAR”) statute, 18 U.S.C. § 1959(a), and for
using a firearm during and in relation to a crime of violence under 18 U.S.C.
§ 924(c). On appeal, Bryant argues: (1) that the evidence was insufficient to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
support his convictions under VICAR; and (2) that several of his VICAR and
§ 924(c) convictions were multiplicitous and violated the Double Jeopardy clause.
We affirm in part, remand with instructions to vacate in part, and dismiss in part.
Because the parties are familiar with the factual and procedural history of this case,
we will not recount it here.
I
Bryant did not renew his Rule 29 motion for acquittal at the conclusion of all
the evidence. Thus, the panel reviews the sufficiency of the evidence to support
the VICAR convictions for “plain error.” United States v. Alarcon-Simi, 300 F.3d
1172, 1176 (9th Cir. 2002). Under a plain error review, the panel reviews the
evidence to determine whether there has been: (1) error, (2) that was plain, (3) that
affected substantial rights, and (4) that seriously affected the fairness, integrity, or
public reputation of the judicial proceedings. United States v. Recio, 371 F.3d
1093, 1100 (9th Cir. 2004) (citations omitted). “In reviewing the sufficiency of the
evidence, we must determine whether ‘viewing the evidence in the light most
favorable to the government, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” United States v.
Barragan, 263 F.3d 919, 922 (9th Cir. 2001) (quoting United States v. Symington,
195 F.3d 1080, 1088–89 (9th Cir. 1999)).
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A. To be convicted under VICAR, one must be engaged in an enterprise “the
activities of which affect, interstate or foreign commerce.” 18 U.S.C. § 1959(b)(2).
Under the plain error standard, sufficient evidence supports this element of
Bryant’s conviction. The government presented witness testimony that: (1) Bryant
was a member of Squad Up; (2) Squad Up was a gang; and (3) Squad Up was
involved in the interstate drug trade. Involvement in the interstate drug trade
certainly has an effect on interstate commerce. Accord United States v. Shryock,
342 F.3d 948, 985 (9th Cir. 2003)) (finding that “the jurisdiction requirement [in
the RICO context] is met if the enterprise or its activities engaged in or involved
interstate or international drug trafficking, use of interstate communication devices,
or possession or use of weapons which traveled in interstate commerce”)
(quotation marks omitted). Thus, the government presented evidence, from which
a reasonable juror could conclude that Bryant’s activities affected interstate
commerce.
B. VICAR requires that the defendant’s crime be “for the purpose of gaining
entrance to or maintaining or increasing position in an enterprise engaged in
racketeering.” 18 U.S.C. § 1959(a). Under the plain error standard, sufficient
evidence supports this element of Bryant’s conviction. The jury heard evidence
that Squad Up required its members to “put in” work in order to move up within
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the gang’s ranks. The jury heard evidence that a Squad Up member could put in
work by shooting rival gang members or protecting the gang’s territory.
Moreover, the jury heard evidence that Bryant was a “gunslinger.” Finally, the
jury heard evidence that the shooting victims were threatened by Squad Up
members for selling drugs in Squad Up territory. Thus, the jury had ample
evidence, upon which to conclude that Bryant’s purpose in committing the murder
was to “maintain[] or increas[e] position in [Squad Up].”
C. Bryant argues that the district court gave erroneous jury instructions on the
“purpose” element of VICAR. We disagree. “In reviewing jury instructions, the
relevant inquiry is whether the instructions as a whole are misleading or inadequate
to guide the jury’s deliberation.” United States v. Frega, 179 F.3d 793, 807 n.16
(9th Cir. 1999). Read as a whole, the jury instructions, though not perfect, were
not misleading.1
1
Though we uphold the jury instruction in this case, the court’s jury
instruction could benefit from more precise phrasing. See United States v. Smith,
520 F.3d 1097, 1104 n.3 (9th Cir. 2008). Accordingly, we request that the Ninth
Circuit Jury Instructions Committee examine this matter and clarify proper jury
instructions for future reference. Specifically, we direct the Committee’s attention
to this Court’s articulation of the controlling legal standard for the “purpose”
element of VICAR in United States v. Banks, 514 F.3d 959 (9th Cir. 2008).
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II
“Where a defendant fails to raise the issue of multiplicity of convictions and
sentences before the district court, [the court] review[s] the district court’s decision
for plain error.” United States v. Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007).
A. Bryant argues, and the government concedes, that the jury convicting Bryant
on four charges of 18 U.S.C. § 1959(a)(5) (VICAR-attempted murder) and on four
charges of 18 U.S.C. § 1959(a)(3) (VICAR-assault with a dangerous weapon) was
multiplicitous and violated the Double Jeopardy clause. We agree. Accordingly,
we remand back to the district court with instructions to vacate the § 1959(a)(5)
conviction for each pair, without prejudice, subject to re-imposition upon
government motion should Bryant succeed in having the § 1959(a)(3) counts
vacated in appellate or post-conviction proceedings.2
18 U.S.C. § 924(c) creates an additional punishment for using a firearm
“during and in relation to any crime of violence.” Consequently, a § 924(c)
conviction must correspond to some underlying violent crime. Bryant was indicted
on twelve counts of violating § 924(c) and convicted on all but two of those
counts. However, three of those counts, 32–34, corresponded with Bryant’s 18
2
Bryant’s count 4 conviction under 18 U.S.C. § 1959 (a)(5) (VICAR-
conspiracy to commit murder) was not multiplictious. Bryant conceded this at oral
argument, and we affirm it here.
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U.S.C. § 1959(a)(5) (VICAR-attempted murder) convictions, which are now being
vacated. Thus, we remand Bryant’s § 924(c) convictions under counts 32–34 with
instructions to vacate, without prejudice, subject to re-imposition upon government
motion should Bryant succeed in having the § 1959(a)(3) counts vacated in
appellate or post-conviction proceedings.
B. The jury also returned a guilty verdict under § 924(c) on count 36. This
count incorporated by reference count 16, for which Bryant was never charged.
Therefore, it was error for the jury to return a guilty verdict on this count.
Accordingly, we dismiss Bryant’s count 36 conviction.
AFFIRMED IN PART, REMANDED WITH INSTRUCTIONS TO
VACATE IN PART, AND DISMISSED IN PART.
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