United States v. Henry Mendoza ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50092
Plaintiff-Appellee,
D.C. No.
v. 2:16-cr-00390-
PA-19
HENRY MENDOZA, AKA Hank,
AKA Pelon, AKA Spanks, AKA
Spanky, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted December 6, 2021
Pasadena, California
Filed February 8, 2022
Before: Marsha S. Berzon, Carlos T. Bea, and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Bea
2 UNITED STATES V. MENDOZA
SUMMARY *
Criminal Law
The panel vacated convictions for conspiracy to
distribute methamphetamine under 21 U.S.C. § 846, RICO
conspiracy under 18 U.S.C. § 1962(d), and carrying a
firearm “during and in relation to” or “in furtherance of” a
crime of violence or drug-trafficking crime under 18 U.S.C.
§ 924(c)(1)(A); and remanded to the district court to grant a
judgment of acquittal on those charges and to resentence the
defendant, who was a member of the Canta Ranas
Organization.
The panel held that there was insufficient evidence to
support the defendant’s conviction for conspiracy to
distribute methamphetamine. Explaining that it must
distinguish between a mere drug buyer and a participant in a
drug-distribution conspiracy, the panel wrote that even after
making all reasonable inferences in the prosecution’s favor,
the government did not establish the “prolonged and actively
pursued course of drug sales” for which the court looks when
deciding, in the absence of direct evidence of an agreement,
if there is sufficient evidence of an agreement to distribute
drugs. The panel therefore concluded that no reasonable jury
could determine beyond a reasonable doubt that the
defendant was part of a conspiracy to distribute
methamphetamine.
Because the government’s RICO conspiracy case turns
on the same element of proof and the same evidence as did
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. MENDOZA 3
its drug conspiracy case, the panel held that there is likewise
insufficient evidence to support the defendant’s conviction
for RICO conspiracy.
The panel held that the defendant’s conviction under
§ 924(c) for possessing a gun in relation to or in furtherance
of a drug-trafficking crime or crime of violence is
unsupported by sufficient evidence. The jury acquitted the
defendant of possession of methamphetamine with intent to
distribute, so that charge cannot serve as an underlying crime
supporting the § 924(c) conviction. And because the
government failed to prove the drug-trafficking conspiracy
and RICO conspiracy charges beyond a reasonable doubt,
the government failed to prove that the defendant
“committed” either conspiracy offense. As a result, neither
conspiracy to distribute methamphetamine nor RICO
conspiracy can serve as the underlying crime for the
defendant’s conviction under § 924(c).
Given its conclusion that sufficient evidence did not
support the defendant’s convictions for drug-trafficking
conspiracy, RICO conspiracy, and possession of a firearm in
furtherance of or in relation to a violent or drug-trafficking
offense, the panel did not address the defendant’s other
arguments.
4 UNITED STATES V. MENDOZA
COUNSEL
Ethan A. Balogh (argued) and Narai Sugino, Balogh & Co.
APC, San Francisco, California, for Defendant-Appellant.
Lindsay M. Bailey (argued), Assistant United States
Attorney, International Narcotics, Money Laundering &
Racketeering Section; Bram M. Alden, Acting Chief,
Criminal Appeals Section; Tracy L. Wilkison, Acting United
States Attorney; United States Attorney’s Office, Los
Angeles, California; for Plaintiff-Appellee.
OPINION
BEA, Circuit Judge:
Every parent knows that teenagers make mistakes. A
fifteen-year-old Henry Mendoza was no exception, though
his error was far more serious than most. At that young age,
Mendoza joined the Canta Ranas Organization (“CRO”), a
Californian gang known for violent extortion and drug
distribution. Mendoza was a member of the CRO for at least
eight years and served under the leadership of two of his
childhood friends, the gang’s heads. All agree so far. But
after this point, Mendoza’s path becomes less clear.
The government alleges that Mendoza continued as an
active gang member until 2016, when he was arrested as part
of federal law enforcement’s wide-ranging takedown of the
CRO. As its key evidence, the government cites two
incidents in June 2013 and December 2016 when law
enforcement caught Mendoza with a handgun and
methamphetamine (16.2 grams in 2013; 3.3 grams in 2016)
and a handful of phone and text message conversations
UNITED STATES V. MENDOZA 5
between Mendoza and CRO members, at least two of which
involve Mendoza asking for methamphetamine.
Mendoza admits to a long-standing methamphetamine
addiction but denies membership in the CRO. As he tells it,
he left the CRO after eight years in its membership, and is
now an addict, not a dealer. He argues that the
methamphetamine with which he was found in 2013 and
2016 was for his own consumption, not for re-sale, and that
the contacts between him and CRO members were sporadic
attempts to purchase drugs from childhood friends rather
than evidence of committed gang membership.
The jury, for its part, appears to have believed both
Mendoza and the government, which also means that it fully
believed neither. As to Mendoza’s drug possession in June
2013, the jury acquitted him of possession of
methamphetamine with intent to distribute and convicted
him only of simple possession. But as to Mendoza’s
relationship with the CRO, and despite its apparent view of
the evidence from the June 2013 incident, the jury convicted
Mendoza of conspiracy to distribute methamphetamine,
RICO conspiracy, and possession of a firearm during and in
relation to or in furtherance of a crime of violence or drug-
trafficking offense. 1
Mendoza appeals the two conspiracy convictions and the
firearm possession conviction, challenging both the
sufficiency of the evidence underlying them and several jury
instructions and decisions by the district court. With
jurisdiction under 28 U.S.C. § 1291, we vacate these three
1
The jury also convicted Mendoza of being a felon in possession of
a firearm, a conviction that Mendoza does not challenge.
6 UNITED STATES V. MENDOZA
challenged convictions for insufficient evidence and remand
with instructions to resentence Mendoza accordingly.
I. BACKGROUND
A. Factual Background
The Canta Ranas Organization (again, the “CRO”) was
a street gang active in Santa Fe Springs, California. The
CRO was managed on the street by Jose Loza and David
Gaitan, engaged in extortion and drug trafficking, among
other crimes, and at its peak had dozens of members.
Mendoza joined the CRO at age fifteen, and since
childhood he has been close personal friends with CRO
leaders Loza and Gaitan. Mendoza testified at trial,
however, that he left the gang around eight years after he
joined and subsequently moved away from the gang’s
territory, taking with him only a lifelong addiction to
methamphetamine and a series of gang-related tattoos. (The
government disputes that Mendoza left the gang.) Mendoza
also introduced testimony that in the years after he claims he
left the CRO, he worked a regular job and supported his
ongoing methamphetamine addiction with that job’s
earnings.
In the 2010s, the federal government began a sustained
investigation of the CRO; this investigation yielded the
government’s evidence against Mendoza. As part of the
investigation, law enforcement surveilled CRO leader
Gaitan’s home, the “central hub for all of the gang’s drugs
and guns,” and wiretapped Gaitan’s phone. Over a seven-
month period in 2013, the police intercepted about 21,000
calls and texts. Of the 21,000, Mendoza participated in
UNITED STATES V. MENDOZA 7
four. 2 Separately, the police also later found one text
message conversation between Mendoza and a CRO
member.
Two of the four calls that included Mendoza were from
June 2013. In the first, Mendoza called Gaitan to ask if he
could purchase methamphetamine; in the second, Gaitan
called Mendoza’s house the next day to tell Mendoza that
the drugs were ready. That evening, the police intercepted
Mendoza in his car, and upon searching him and the car,
found $31 in cash, a phone, a handgun, a police scanner, and
about 16.2 grams of pure meth. The police found no
evidence of drug selling, packaging, or cutting (i.e., diluting
it with another substance) but also no needles or pipes that
Mendoza could use to consume the drug.
Several weeks later, the police intercepted two calls
between CRO members that were about Mendoza. One was
between CRO head Loza and CRO member Robert McAfee;
the other was between Loza and CRO head Gaitan. In both,
Loza and the other member (McAfee or Gaitan) discussed
their unsuccessful efforts to contact Mendoza. And a day or
two later came a third call involving Mendoza. This time,
Mendoza called Jose Loza and the two discussed Loza’s
efforts to contact Mendoza. 3
Three years later, in April and May 2016, came the text
conversation involving Mendoza. In it, Mendoza asked a
2
Mendoza puts this number at three but apparently omits one call.
3
The fourth call involving Mendoza was from May 2013. In it,
Mendoza called CRO leader Gaitan and the two spoke briefly about an
upcoming gathering in Gaitan’s backyard. The government did not cite
this call in its briefing as evidence for any incriminating proposition
about Mendoza.
8 UNITED STATES V. MENDOZA
CRO member, Antolin, for meth, and used several CRO-
related phrases and images when making his request. During
the next few weeks, Mendoza haggled with Antolin over the
price of the methamphetamine he requested, and informed
Antolin that if Antolin could not provide the drugs, Mendoza
would purchase them from someone else.
In June 2016, Mendoza was indicted along with around
50 CRO members. Within a few months, the police had
arrested nearly all the indicted individuals, including CRO
leaders Gaitan and Loza. The police were originally not able
to find Mendoza, but eventually arrested him in December
2016. At the time, law enforcement found with him a
handgun, 3.5 grams of methamphetamine, and some cash.
Again, the police found no evidence of drug selling,
packaging, or cutting, but also no needles or pipes that could
be used to consume methamphetamine.
B. Procedural History
At trial, Mendoza was charged with: 1) possession of
methamphetamine with intent to distribute under 21 U.S.C.
§ 841(a)(1) (with simple possession of methamphetamine
under 21 U.S.C. § 844 as a lesser-included offense), 2) being
a felon in possession of a firearm under 18 U.S.C. § 992(g),
3) conspiracy to possess methamphetamine with intent to
distribute it under 21 U.S.C. § 846, 4) RICO conspiracy
under 18 U.S.C. § 1962(d), and 5) carrying a firearm “during
and in relation to” or “in furtherance of” a crime of violence
or drug-trafficking crime under 18 U.S.C. § 924(c)(1)(A).
Mendoza was convicted of the two conspiracy charges and
the two gun-possession charges. He was acquitted, however,
of possession of methamphetamine with the intent to
distribute and convicted of only the lesser-included offense
of simple possession of methamphetamine. Mendoza was
sentenced to a total of 180 months’ imprisonment and he
UNITED STATES V. MENDOZA 9
timely appealed his convictions for conspiracy to distribute
meth, RICO conspiracy, and possession of a firearm in
relation to or in furtherance of a drug-trafficking crime or
crime of violence. 4
II. DISCUSSION
Mendoza’s primary argument on appeal is that the
government offered insufficient evidence to support three
charges of which he was convicted: 1) conspiracy to
distribute methamphetamine 2) RICO conspiracy, and
3) carrying a firearm during and in relation to or in
furtherance of a crime of violence or drug-trafficking crime.
In addition, Mendoza argues: 1) that he was entitled to a sua
sponte jury instruction for his drug conspiracy charge on the
“buyer-seller rule,” which instructs that a “conviction for
conspiracy cannot be based solely on the purchase of an
unlawful substance,” United States v. Moe, 781 F.3d 1120,
1123 (2015); 2) that the trial judge gave erroneous
supplementary jury instructions on the RICO conspiracy
charge that confused the jury; and 3) that the jury may have
convicted him under § 924(c) based on a legally invalid
predicate offense. 5
We discuss below Mendoza’s argument that insufficient
evidence supports his three challenged convictions. As we
agree with Mendoza, we vacate those convictions and
decline to reach Mendoza’s other alleged errors.
4
Mendoza does not appeal his convictions for simple possession of
methamphetamine nor for being a felon in possession of a firearm.
5
Mendoza also originally argued that the judge improperly
instructed the jury on the elements required to convict him under
§ 924(c) but later conceded that argument.
10 UNITED STATES V. MENDOZA
A. Standard of Review
When this Court reviews a challenge to the sufficiency
of the evidence supporting a criminal conviction, we
perform a two-step analysis. First, we “consider the
evidence presented at trial in the light most favorable to the
prosecution.” United States v. Nevils, 598 F.3d 1158, 1164
(9th Cir. 2010) (en banc). In other words, we cannot fashion
an “exculpatory explanation” for admittedly incriminating
evidence but need make only “reasonable inference[s]” in
the prosecution’s favor; we need not heed evidentiary
theories, or affirm jury verdicts, that are based on “mere
speculation.” Id. at 1167. And second, we must determine
whether the evidence, including any “evidence of
innocence” or “lack of evidence of guilt,” “could allow any
rational trier of fact to find the essential elements of the
crime beyond a reasonable doubt.” Id. at 1164–65.
B. Mendoza’s Conviction for Conspiracy to
Distribute Methamphetamine
Mendoza first challenges the evidence supporting his
conviction for conspiracy to distribute methamphetamine.
To prove a conspiracy, the government must prove: “1) an
agreement to accomplish an illegal objective; and 2) the
intent to commit the underlying offense.” United States v.
Mincoff, 574 F.3d 1186, 1192 (9th Cir. 2009) (quoting
United States v. Barragan, 263 F.3d 919, 922 (9th Cir.
2001)). Circumstantial evidence can suffice to prove a
conspiracy. See id.Here, we must distinguish between a mere drug buyer,
as Mendoza contends he was, and a participant in a drug-
distribution conspiracy, as the government alleges he was.
In cases like this, the buyer-seller rule dictates that “mere
sales to [or purchases from] other individuals do not
UNITED STATES V. MENDOZA 11
establish a conspiracy to distribute or possess with intent to
distribute.” United States v. Lennick, 18 F.3d 814, 819 n.4
(9th Cir. 1994). Rather, the government must show that
Mendoza and the CRO “had an agreement to further
distribute the drug in question”: methamphetamine. Id.We will find such an agreement and “uphold a
conviction for conspiracy between buyer and seller where
there is ‘evidence of a prolonged and actively pursued course
of sales coupled with the seller’s knowledge of and a shared
stake in the buyer’s illegal venture.’” Moe, 781 F.3d at 1125
(quoting United States v. Ramirez, 714 F.3d 1134, 1140 (9th
Cir. 2013)). If we instead see only “a casual sale [or
purchase] of drugs, of a quantity consistent with personal use
on the part of the buyer, with no evidence of any subsequent
(or planned) redistribution of purchased drugs,” the evidence
is generally insufficient to support a conspiracy conviction.
Id. We assess “‘the entire course of dealing’ between
alleged co-conspirators,” and consider whether the “drugs
were sold on credit,” the “frequency” and “quantity” of
sales, and “whether the transactions were standardized,”
among other factors. Id. at 1125, 1126 (quoting Mincoff,
574 F.3d at 1194).
At trial, the government offered the following evidence
of Mendoza’s guilt:
• Mendoza was admittedly a member of the CRO
when he was a teenager, and gang membership is
typically “for life.”
• Mendoza has multiple tattoos with CRO imagery,
one of which commemorates a deceased CRO
member and post-dates when Mendoza claims he left
the gang.
12 UNITED STATES V. MENDOZA
• At Mendoza’s arrest on June 2, 2013, he had with
him 16.2 grams of pure methamphetamine in two
separate bags, a police scanner, and a loaded gun, all
consistent with drug “sales as opposed to personal
use.” Further, Mendoza was not found with either
syringes or pipes that he could use to inject or smoke
meth. 6
• Mendoza purchased the 16.2 grams of
methamphetamine he was caught with in 2013 from
CRO leader Gaitan, and did so on credit rather than
paying in cash.
• Mendoza had several phone or text conversations
with CRO members. Mendoza called Gaitan once in
2013 to ask if he should come to his house, and then
called a few weeks later to request
methamphetamine. The day after the second call,
Mendoza received a call from Gaitan on his mother’s
home phone to tell him that the drugs were ready.
6
Mendoza argues that we cannot consider this evidence when
analyzing the sufficiency of the evidence supporting Mendoza’s
convictions because, when the jury considered Mendoza’s conduct in
June 2013, the jury found him guilty of simple possession of
methamphetamine but acquitted him of possession with intent to
distribute. We rejected an analogous argument in United States v.
Johnson, 804 F.2d 1078 (9th Cir. 1986). There, a jury acquitted the
defendant of bank robbery but found him guilty of possessing stolen
bank property. We held that evidence pertaining to the acquitted count
could be considered in a sufficiency-of-the-evidence analysis of the
guilty count. Id. at 1079–80, 1083. Mendoza argues that Johnson
rejected an approach based on “inconsistent verdicts—rather than an
assessment of all the evidence”—but he misreads the case. See id.
at 1083 (“Therefore, the eyewitness testimony should not have been
excluded from the assessment of the sufficiency of the evidence
supporting Johnson’s conviction under § 2113(c).”).
UNITED STATES V. MENDOZA 13
Mendoza also received a call from Loza on his
mother’s home phone several weeks later in 2013, 7
and in 2016, Mendoza texted Antolin, a CRO foot
soldier, to ask him for methamphetamine and used
several CRO-related images in the conversation. 8
• When Mendoza was arrested in December 2016, he
had a gun and 3.5 grams of methamphetamine in two
baggies.
• The gun that Mendoza had in 2013 had been used to
shoot at a car that was driven by a member of another
gang just over a week before Mendoza was found
with it.
Mendoza offered innocent interpretations of the above
evidence, but we must ignore them, see Nevils, 598 F.3d
at 1167.
7
The prosecution asserts that these phone calls establish that Loza
collected “taxes” from Mendoza, but fairly read, the calls do not so
establish. The calls do not allude to any obligation or debt that Mendoza
owed Loza. We must make “reasonable inference[s]” in the
prosecution’s favor, Nevils, 598 F.3d at 1167, but we cannot give those
conversations meaning that their words do not bear.
8
The government is incorrect when it asserts that Mendoza
requested “42 grams of methamphetamine in the span of just three
weeks, an amount well in excess of the quantity [Mendoza] claimed he
personally used in a month’s time.” Viewing the texts between Mendoza
and Antolin in the light most favorable to the prosecution, Mendoza
asked for half an ounce (about 14 grams), which would apparently last
him a month, and then asked for another half an ounce three weeks later.
So, Mendoza actually asked for 28 grams in a span of three weeks. In
other words, he twice requested a month’s supply and his two requests
were nearly a month apart.
14 UNITED STATES V. MENDOZA
Mendoza also offered the following as evidence of his
innocence:
• When Mendoza was found with methamphetamine
in June 2013 and in December 2016, he had with him
no materials that could be used to cut (again, to dilute
with another substance), weigh, package, or
otherwise sell drugs.
• Mendoza was absent at the “mandatory” CRO
meeting that the government surveilled and
apparently suffered no consequences as a result.
• CRO members apparently did not speak with him
regularly or even have his phone number.
• Mendoza participated in just four communications
over seven months with CRO members out of the
21,000 gang communications the police intercepted.
• The two consummated or attempted drug sales
between Mendoza and CRO members were ad hoc
rather than standardized transactions. Specifically,
Mendoza negotiated price, and threatened to buy
methamphetamine from another seller (who the
government did not establish was a CRO member) if
Mendoza could not obtain a good price from his
CRO contact.
In our view, the above evidence is insufficient to convict
Mendoza of conspiracy to distribute methamphetamine
beyond a reasonable doubt. True, the government offered
some circumstantial evidence linking Mendoza to the CRO
(for instance, Mendoza’s 2013 tattoo and his conversations
with CRO members) and to objects that are consistent with
drug trafficking more generally (for instance, Mendoza’s
UNITED STATES V. MENDOZA 15
guns and police scanner). 9 And Mendoza did once purchase
methamphetamine from CRO leader Gaitan once without
paying immediately in cash, and he attempted to buy drugs
another time from CRO member Antolin. But even “ample
proof that [Mendoza] possessed and [bought] drugs” is
insufficient on its own for a conspiracy conviction. Ramirez,
714 F.3d at 1140. The government must prove with
sufficient evidence “an agreement” between Mendoza and
CRO co-conspirators under which Mendoza “would ‘further
distribute the drugs’” that he bought from the CRO. Id.
(quoting Lennick, 18 F.3d at 819). When we rely on
circumstantial evidence to establish an agreement, as we do
here, “what we are looking for is evidence of a prolonged
and actively pursued course of sales” and Mendoza’s
“knowledge of” and “shared stake in” the CRO’s drug
operation. Id.Assessed under these criteria, the evidence here of any
agreement or shared stake is lacking compared to what we
have previously found sufficient. Consider our two
decisions in United States v. Mincoff and United States v.
Loveland, 825 F.3d 555 (9th Cir. 2016). In Mincoff, we
found sufficient evidence for a drug conspiracy conviction
because the evidence, including live testimony and multiple
recorded calls outlining the drug buyer’s future plans to re-
9
Again, Mendoza offers plausible explanations for much of this
evidence that do not support the conspiracy and gun possession counts.
For instance, he says the methamphetamine he had in his possession was
for his personal use, argues that he kept the gun only for personal
protection, and contends that Gaitan sold him methamphetamine on
credit due only to their long-time friendship. But we must draw all
“reasonable inference[s]” in the prosecution’s favor, and all this
evidence is susceptible to “reasonable” incriminating inferences, so we
consider it as circumstantial evidence of Mendoza’s guilt. See Nevils,
598 F.3d at 1164.
16 UNITED STATES V. MENDOZA
sell the product to another buyer, “demonstrated an
agreement to further distribute the cocaine, rather than the
‘mere purchase’ of large quantities of drugs.” 574 F.3d at
1194. Here, in contrast, we have no “recorded calls” or
testimony that Mendoza was to “further distribute”
methamphetamine (or actually did), and Mendoza was never
found with typical implements of drug sales like cutting
agents, scales, or numerous small baggies.
In Loveland, we vacated a conspiracy conviction and
held that even evidence of “repeated sales and large
quantities could not sustain a conspiracy conviction” absent
evidence of a defendant’s “involvement” in future drug
sales. 825 F.3d at 560. Here, we have no evidence of
repeated, large-quantity sales and barely any evidence
linking Mendoza to future drug sales. Mendoza was caught
with 16.2 grams of methamphetamine in June 2013 and just
3.5 grams in December 2016; the government’s evidence
proves that Mendoza purchased drugs from the CRO at most
three times in three years. The only evidence even
suggesting that Mendoza might be involved in any future
drug sales is the single time he purchased methamphetamine
from CRO leader Gaitan without immediately paying in
cash. See Moe, 781 F.3d at 1125 & n.1 (recognizing that
drug sales on credit suggests an agreement to further
distribute the drugs). The evidence that Mendoza and the
CRO had the requisite “agreement” to distribute
methamphetamine falls well short of the evidence we found
sufficient in Mincoff, and short as well of the evidence we
found insufficient in Loveland.
While this gap in the government’s case might not be
fatal on its own, Mendoza also presented multiple items of
evidence that affirmatively contradict the government’s
theory. For instance, the government argues that Mendoza
UNITED STATES V. MENDOZA 17
was a “senior foot soldier” in the CRO. But Mendoza missed
a “mandatory” gang meeting and suffered no consequences,
and the CRO’s leaders did not even have his phone number.
In fact, one of the CRO’s leaders, Mendoza’s close friend
from childhood, resorted to messaging Mendoza using a
text-messaging feature on a videogame the two played, and
he often failed to reach Mendoza even through this method
because the two rarely played at the same time. That is not
how co-conspirators usually communicate. Cf. Moe,
781 F.3d at 1126 (finding sufficient evidence to support a
drug conspiracy conviction where the buyer and seller
“communicated closely together and coordinated their
actions”). The government submits that Mendoza was
“required to pay taxes” (i.e., the CRO’s share of drug sale
profits) on drugs he acquired from the CRO and then re-sold
and was then “hounded . . . for repayment.” But the
communications between Mendoza and CRO members the
government cites make no mention of “taxes” or a debt owed
on drugs obtained by Mendoza, and after CRO leader Loza
told Mendoza that he tried to reach him for “seven days
straight,” he did not berate Mendoza for not paying taxes but
instead told him to “take care.” That is hardly “hound[ing],”
and certainly not what one would expect a gang leader to tell
his in-debt inferior. And the government contends that in
May and June 2016, Mendoza “communicated with [a CRO
member] for the purpose of obtaining methamphetamine for
sale on behalf of the CRO.” But Mendoza had to pester that
CRO member for almost a month and then threaten to
purchase drugs from someone else to convince the gang
member to sell to him, and even after Mendoza convinced
the gang member to make a sale, Mendoza haggled over
price and quantity. There was no mention in the
communication of resale. That is not how co-conspirators in
a drug-trafficking operation transact. See Moe, 781 F.3d
at 1126 (recognizing that drug co-conspirators typically
18 UNITED STATES V. MENDOZA
engage in “standardized” transactions). Indeed, we have
held that a buyer-seller relationship (as opposed to
conspiracy) is particularly likely when, as here, the
downstream buyer called the upstream seller (rather than
vice versa) and when the downstream buyer was “free to
shop elsewhere.” Loveland, 825 F.3d at 563; see id. at 562.
We find only more support for our conclusion when we
step back to consider the “entire course of dealing” between
Mendoza and the CRO. Moe, 781 F.3d at 1125 (quoting
Mincoff, 574 F.3d at 1194). That “entire course of dealing”
consisted of four phone calls and one short text conversation
out of 21,000 communications and seven months of
intensive audio surveillance on the CRO, along with one
methamphetamine purchase from a CRO source, a second
attempted purchase, and a later third purchase, 10 spread
across over three years’ time and totaling just 47.5 grams.
That may be more conversations with drug kingpins and
purchases from methamphetamine dealers than most people
who are not addicted to methamphetamine have had in their
lives, but it is still a thin circumstantial basis for a drug
conspiracy conviction, especially for an addict. Compare
Moe, 781 F.3d at 1123, 1126 (finding sufficient evidence to
support a drug conspiracy conviction when a drug buyer was
“not just a casual or occasional buyer” but participated in “at
least seven” transactions together involving 140 grams of
meth, “94 cell phone contacts,” and “51 text messages” with
the seller), with Ramirez, 714 F.3d at 1140 (finding
insufficient evidence to support a drug conspiracy
conviction even with four sales of “large quantities” of
methamphetamine because there was little evidence of an
This assumes the government’s theory that Mendoza obtained
10
from the CRO the methamphetamine that he had with him at his
December 2016 arrest.
UNITED STATES V. MENDOZA 19
“agreement . . . to distribute meth”). Compared to the
evidence in Moe, the “course of dealing” between Mendoza
and the CRO was more of a trickle.
Given all the evidence just discussed, and even after
making all “reasonable inference[s]” in the prosecution’s
favor, Nevils, 598 F.3d at 1167, the government simply did
not establish the “prolonged and actively pursued course of
[drug] sales” for which we look when deciding, in the
absence of direct evidence of an agreement, if there is
“sufficient evidence of an agreement” to distribute drugs.
Loveland, 825 F.3d at 560 (quoting Ramirez, 714 F.3d
at 1140). Even if the evidence of Mendoza’s relationship
with the CRO raises “a reasonable suspicion or probability”
of his guilt, that level of certainty “is not enough.” United
States v. Espinoza-Valdez, 889 F.3d 654, 659 (9th Cir.
2018). “Guilt, according to the basic principles of our
jurisprudence, must be established beyond a reasonable
doubt.” Id. Given this strict standard, no reasonable jury
could determine beyond a reasonable doubt that Mendoza
was part of a conspiracy to distribute methamphetamine.
The evidence the government offered at trial as to the
conspiracy count was insufficient.
C. Mendoza’s Conviction for RICO Conspiracy
Mendoza next challenges the sufficiency of the evidence
supporting his conviction for RICO conspiracy. Of the five
elements of a RICO conspiracy set out in the jury
instructions, Mendoza challenged only one: whether he
actually “became a member of the conspiracy knowing of its
object and intending to help further or facilitate” it. And as
with the drug conspiracy count, we may rely on
circumstantial evidence. See Mincoff, 574 F.3d at 1192.
20 UNITED STATES V. MENDOZA
The government’s theory, at trial and on appeal, is that
Mendoza was a part of the CRO’s racketeering conspiracy
because he sold drugs for the gang—the same theory the
government pursued as to Mendoza’s drug conspiracy
charge. For these parallel theories, the government offered
parallel evidence: the same evidence supported both the drug
conspiracy charge and the RICO conspiracy charge. And
unsurprisingly, Mendoza countered with the same argument
that he used to challenge the drug conspiracy charge—that
he was a mere drug user, not a conspirator in distributing
drugs to others—and with the same counterevidence.
The government’s RICO conspiracy case turns on the
same element of proof and on the same evidence as did its
drug conspiracy case. So, the outcome here is the same as
with the drug conspiracy: insufficient evidence supports
Mendoza’s conviction for RICO conspiracy. Cf. Espinoza-
Valdez, 889 F.3d at 659 (analyzing as a whole the
overlapping evidence for two separate conspiracy
convictions and finding insufficient evidence for either).
D. Mendoza’s Conviction for Possessing a Gun in
Relation to or in Furtherance of a Drug-
Trafficking Crime or Crime of Violence
Last, Mendoza challenges the sufficiency of the evidence
underlying his conviction under 18 U.S.C. § 924(c) for
carrying or possessing a firearm “in relation to” or “in
furtherance” of a drug-trafficking crime or crime of
violence. To obtain a conviction under § 924(c), the
government must prove that the defendant “committed [an]
underlying crime” of violence or drug trafficking, United
States v. Hunter, 887 F.2d 1001, 1003 (9th Cir. 1989) (per
curiam), and also “possessed [a] weapon to promote or
facilitate th[at] underlying crime,” United States v. Krouse,
370 F.3d 965, 967 (9th Cir. 2004). The government must
UNITED STATES V. MENDOZA 21
have sufficient evidence of “all elements of the crime created
by section 924(c)(1).” Hunter, 887 F.3d at 1003.
We focus on the first element of proof: whether Mendoza
committed an “underlying crime” of violence or drug
trafficking. The government suggested at trial that the jury
could find that Mendoza committed any or all of three
possible underlying crimes: 1) possession of
methamphetamine with intent to distribute, which the judge
instructed the jury was a drug-trafficking crime;
2) conspiracy to distribute methamphetamine, which the
judge instructed the jury was a drug-trafficking crime; and
3) RICO conspiracy, which the judge instructed the jury was
“crime of violence.” 11 The jury acquitted Mendoza of
possession of methamphetamine with intent to distribute, so
that charge cannot serve as an underlying crime supporting
Mendoza’s § 924(c) conviction.
This leaves Mendoza’s charges for conspiracy to
distribute methamphetamine and RICO conspiracy. We
concluded above that the government presented insufficient
evidence to justify those two convictions. So, by the same
token, we conclude that the government offered insufficient
evidence to prove that Mendoza committed either of those
two crimes as an “underlying crime” of drug trafficking or
violence for the purposes of § 924(c). Hunter, 887 F.2d
at 1003. Of course, the government need not “separately
11
We note that the Supreme Court recently held in United States v.
Davis, 139 S. Ct. 2319 (2019), that § 924(c)(3)(B) is unconstitutionally
vague, see id. at 2324, causing some courts to conclude that “RICO
conspiracy is not a crime of violence” and can no longer support a
conviction under § 924(c). E.g., United States v. Capers, 20 F.4th 105,
120 (2d Cir. 2021). This Court has yet to publish an opinion that follows
Davis and reaches the same conclusion as Capers, and we need not take
that step here.
22 UNITED STATES V. MENDOZA
charge[] . . . and convict[]” a defendant charged under
§ 924(c) “of the underlying offense,” id., so whether or not
Mendoza is convicted of either conspiracy is irrelevant. But
because the government failed to prove the conspiracy
charges beyond a reasonable doubt, the government failed to
prove that Mendoza “committed” either conspiracy offense.
As a result, neither conspiracy to distribute
methamphetamine nor RICO conspiracy can serve as the
underlying crime for Mendoza’s conviction under § 924(c).
The government thus failed to prove an essential element of
Mendoza’s § 924(c) offense, leaving that conviction
unsupported by sufficient evidence.
***
Given our conclusion that sufficient evidence did not
support Mendoza’s convictions for drug-trafficking
conspiracy, RICO conspiracy, and possession of a firearm in
furtherance of or in relation to a violent or drug-trafficking
offense, we need not address Mendoza’s other arguments. 12
12
Mendoza’s argument that he was entitled to a sua sponte
instruction on the “buyer-seller rule” provides one explanation for the
apparently inconsistent jury verdicts below. Without that instruction, the
jury may have believed that it could convict Mendoza of conspiracy to
distribute methamphetamine and of RICO conspiracy based only on an
agreement to purchase methamphetamine from CRO members. If the
jury so believed, but did not believe that Mendoza had any agreement
with the CRO to re-sell or otherwise distribute the methamphetamine for
the gang’s profit, then the jury could reasonably have reached the
ostensibly inconsistent verdict below: not guilty of possession with intent
to distribute but guilty of both simple possession and conspiracy to
distribute. Still, we need not address the buyer-seller rule issue, even
though it might give us a chance to reconcile the jury’s verdicts. We
conclude above that the evidence adduced was insufficient to support the
three convictions that Mendoza challenges, incorporating into our
UNITED STATES V. MENDOZA 23
III. CONCLUSION
We thus VACATE Henry Mendoza’s convictions for
conspiracy to distribute drugs under 21 U.S.C. § 846, RICO
conspiracy under 18 U.S.C. § 1962(d), and carrying a
firearm “during and in relation to” or “in furtherance of” a
crime of violence or drug-trafficking crime under 18 U.S.C.
§ 924(c)(1)(A), and we REMAND to the district court to
grant a judgment of acquittal on those charges and to
resentence Mendoza accordingly.
analysis the buyer-seller rule that evidence of a buyer-seller relationship
alone is not sufficient evidence of conspiracy. This appraisal resolves
Mendoza’s appeal and dispenses with any need to address his other
arguments, including whether Mendoza was entitled to a sua sponte
instruction on the buyer-seller rule. We note that any such instructional
error would entitle Mendoza only to a retrial, a lesser remedy than the
vacation, remand, and resentencing that Mendoza’s insufficiency of
evidence arguments have merited him.