United States v. Banks ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10053
Plaintiff-Appellee, D.C. No.
v. CR-04-00052-KJD
LELAND DEVINE BANKS, ORDER
Defendant-Appellant. AMENDING
OPINION AND
GRANTING IN
 PART
APPELLANT’S
MOTION FOR
CLARIFICATION
OR, IN THE
ALTERNATIVE,
FOR REHEARING
AND AMENDED
 OPINION
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted
October 18, 2006—San Francisco, California
Filed October 25, 2007
Amended January 29, 2008
Before: J. Clifford Wallace, Andrew J. Kleinfeld, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
1349
UNITED STATES v. BANKS 1353
COUNSEL
Richard F. Cornell, Law Office of Richard F. Cornell, Reno,
Nevada, for appellant Leland Devine Banks.
Russell E. Marsh, Assistant United States Attorney, United
States Attorney’s Office, Las Vegas, Nevada, for the appellee.
ORDER
The opinion, filed on October 25, 2007, slip opinion 14183,
and appearing at 506 F.3d 756 (9th Cir. 2007), is amended as
follows:
1. At slip op. 14187, second full paragraph; 506 F.3d at
759, second full paragraph, replace:
“We have jurisdiction under 28 U.S.C. § 1291, and we
REVERSE his VICAR convictions and sentences on the basis
that the district court’s instructions to the jury were erroneous.
We AFFIRM the district court in all other respects.”
with
“We have jurisdiction under 28 U.S.C. § 1291, and we
REVERSE his VICAR convictions and sentences on the basis
that the district court’s instructions to the jury were erroneous.
1354 UNITED STATES v. BANKS
We REVERSE his convictions for use of a firearm in further-
ance of a crime of violence because his VICAR convictions
were essential elements of those crimes. We AFFIRM the dis-
trict court in all other respects.”
2. At slip op. 14213, second full paragraph; 506 F.3d at
773, fourth full paragraph, replace:
“Because the district court erred by instructing the jury that
it could convict Banks under the VICAR statute if it found
that any element of his motivation, no matter how incidental,
in assaulting Gilmore was to maintain his membership in the
Rolling 60s, we REVERSE his conviction and sentence as to
the two VICAR counts and REMAND for further proceed-
ings. We AFFIRM the district court in all other respects.”
with
“Because the district court erred by instructing the jury that
it could convict Banks under the VICAR statute if it found
that any element of his motivation, no matter how incidental,
in assaulting Gilmore was to maintain his membership in the
Rolling 60s, we REVERSE his conviction and sentence as to
the two VICAR counts and REVERSE his conviction and
sentence as to the two use of firearm counts, which were pred-
icated on his VICAR convictions. See United States v. Ritter,
989 F.2d 318, 322 (9th Cir. 1993). We REMAND for further
proceedings and AFFIRM the district court in all other
respects.”
With these amendments, the panel has voted to grant in part
appellant’s Motion for Clarification or, in the alternative, for
Rehearing. Appellant’s Motion for Clarification or, in the
alternative, for Rehearing has been considered, and it is
GRANTED IN PART. No further petitions for rehearing may
be filed.
UNITED STATES v. BANKS 1355
OPINION
BYBEE, Circuit Judge:
Leland Devine Banks was convicted of violence in aid of
a racketeering enterprise (“VICAR”), use of a firearm in a
crime of violence, and possession of a firearm by a convicted
felon. He was sentenced to a total of 450 months in prison.
Banks appeals his conviction and sentence, raising five
alleged errors by the district court. First, he argues that the
district court gave erroneous instructions for the VICAR
counts. Second, he argues that the evidence was insufficient
to convict him on the VICAR and use of firearm counts.
Third, he argues that the district court erred in giving a “de
facto Allen charge.” Fourth, he argues that the district court
erred in admitting into evidence the underlying facts of a prior
felony conviction. Finally, he argues that cumulative error
produced a miscarriage of justice.
We have jurisdiction under 28 U.S.C. § 1291, and we
REVERSE his VICAR convictions and sentences on the basis
that the district court’s instructions to the jury were erroneous.
We REVERSE his convictions for use of a firearm in further-
ance of a crime of violence because his VICAR convictions
were essential elements of those crimes. We AFFIRM the dis-
trict court in all other respects.
I
A. Factual Background
Leland Banks had issues with Kenny Gilmore. For starters,
they belonged to rival Crips gangs in Las Vegas: Banks was
a member of the Rolling 60s, and Gilmore belonged to the
Valley View Crips. But Banks also had, or thought he had, a
personal score to settle with Gilmore. Banks had once over-
heard Gilmore’s girlfriend use the word “crab,” apparently
one of the most disrespectful names a Crips member can be
1356 UNITED STATES v. BANKS
called, and thought she was referring to him. Banks told Gil-
more to “check his bitch,” but Gilmore only retorted, “my
baby’s mama ain’t no bitch.”1 Banks, perhaps hoping to
restore his honor, challenged Gilmore to a fight, but Gilmore
declined.
Banks then initiated what he described as an “ongoing bat-
tle” with Gilmore. Banks launched the first disastrous salvo
a couple of weeks after the perceived insult. Banks, high on
PCP, saw Gilmore playing dice. Banks pulled his gun, but
somebody, apparently a friend of Gilmore’s, approached
Banks from behind and pistol-whipped him, sending him into
a coma.
Banks, however, was not easily deterred. Shortly after
being discharged from the hospital, Banks tried shooting Gil-
more again but missed. Banks then sought reinforcements,
enlisting his “little homies” to beat and shoot at Gilmore. This
rather one-sided battle finally culminated on January 6, 2004,
when Banks saw Gilmore in the neighborhood, grabbed his
broken-stocked .22 caliber rifle, and climbed to the rooftop of
the Kimberly Place Apartments, which offered him a clear
line of sight to Gilmore, who was standing across the street
in front of a 7-Eleven. Banks fired several shots at Gilmore
but again missed his target. Gilmore and the store clerk fled
into the store, where they stayed hidden with several custom-
ers until the police arrived.
Banks remained on the rooftop where he was discovered by
Officer Garness of the Las Vegas Metropolitan Police Depart-
ment (“LVMPD”), who was flying overhead in a police heli-
copter. The police ordered Banks off the roof; after placing
something near the air conditioner, he complied and was
arrested. The police found the .22 caliber rifle hidden on the
roof near the air conditioner.
1
As it happens, Gilmore had good reason not to comply with Banks’s
order—Gilmore’s girlfriend had in fact been referring to Gilmore when
she used the word “crab.”
UNITED STATES v. BANKS 1357
B. Trial
Banks was ultimately tried on five counts: (1) attempted
murder in violation of 18 U.S.C. § 1959(a)(5) (violent crime
in aid of racketeering (VICAR)); (2) use of a firearm in rela-
tion to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1); (3) assault with a dangerous weapon in violation
of 18 U.S.C. § 1959(a)(3) (VICAR); (4) another count involv-
ing use of a firearm in relation to a crime of violence in viola-
tion of 18 U.S.C. § 924(c)(1); and (5) being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
& (a)(2).
Prior to trial, Banks moved to sever the felon-in-possession
count, but the prosecution offered to stipulate to the fact of the
prior felony conviction, and the district court therefore denied
the motion as moot. Also prior to trial, the government gave
notice that it intended to present evidence of Banks’s prior
criminal acts for three reasons: (1) to establish his gang mem-
bership; (2) to show his motive for attempting to kill Gilmore;
and (3) to establish that Banks’s gang was a criminal enter-
prise for purposes of the VICAR statute. Banks did not move
to preclude any of this evidence.
Trial began in October 2004. One of the prior criminal acts
introduced by the government was the conduct that resulted
in Banks’s prior felony conviction: his stabbing of another
individual, a man identified in the record only as Mr. Lindsey,
in response to a perceived slight. Banks objected to introduc-
tion of this evidence but provided no basis for his objection
other than that he had already stipulated to the fact of the prior
conviction. After admonishing the prosecution to “stay away
from the conviction,” the district court admitted the evidence
of the underlying act.
Jury deliberations began two days later. After some diffi-
culty in reaching a verdict, followed by additional instructions
from the court (described in greater detail below), the jury
1358 UNITED STATES v. BANKS
convicted Banks on all five counts. The district court sen-
tenced Banks to a total of 450 months in prison: 120 months
as to count one (the first VICAR count), 210 months as to
count three (the second VICAR count), and 120 months as to
count five (the felon-in-possession charge), all to run concur-
rently; 120 months each on counts two and four (the two use-
of-a-firearm charges), running concurrently to each other, but
consecutively to the sentences on counts one, three, and five;
and 120 months as a criminal gang enhancement, to run con-
secutively to the other sentences. Banks timely filed this
appeal.
II
On appeal, Banks raises five challenges to his convictions
and sentence. Of these, we reject all but the first.
A. VICAR Jury Instruction
[1] The VICAR statute provides that “[w]hoever, . . . for
the purpose of gaining entrance to or maintaining or increas-
ing position in an enterprise engaged in racketeering activity,
murders [or] . . . assaults with a dangerous weapon . . . in vio-
lation of the laws of any State or the United States, or
attempts or conspires so to do, shall be punished.” 18 U.S.C.
§ 1959(a) (emphasis added). In our prior decisions we have
identified four elements required for a conviction under this
statute: “(1) that the criminal organization exists; (2) that the
organization is a racketeering enterprise; (3) that the defen-
dant[ ] committed a violent crime; and (4) that [the defendant]
acted for the purpose of promoting [his] position in a racke-
teering enterprise.” United States v. Bracy, 67 F.3d 1421,
1429 (9th Cir. 1995); see also United States v. Fernandez,
388 F.3d 1199, 1220 (9th Cir. 2004). Banks contends that the
district court’s instructions to the jury on the VICAR counts
misstated the purpose element of the charged offense. We
review the district court’s instructions de novo. See United
States v. Phillips, 367 F.3d 846, 854 (9th Cir. 2004).
UNITED STATES v. BANKS 1359
The district court instructed the jury that the purpose ele-
ment could be satisfied if “at least one of the defendant’s pur-
poses in committing [the violent crime] was to gain entrance
or maintain or increase his position in the enterprise, the Roll-
ing 60s Crips.” Thus, the Government need not “prove that
this motive was the sole purpose, or even the primary purpose
of the Defendant in committing the charged crime”; rather,
the jury “need only find that it was one of his purposes.” The
court further instructed the jury that the fourth element could
be satisfied “if the Defendant committed the charged violent
crime at least in part because he knew it was expected of him
by reason of his membership in the enterprise or that he com-
mitted it in furtherance of that membership.”
Banks objects that these instructions misstate the law
because they permit the jury to convict him of a VICAR vio-
lation even if his primary motive was personal revenge and he
was only incidentally motivated by the desire to regain the
respect of fellow gang members. This, he contends, plainly
contravenes the language of the statute, which requires that
the violent act be committed “for the purpose of . . . maintain-
ing or increasing [his] position” in the Rolling 60s. 18 U.S.C.
§ 1959(a) (emphasis added).
[2] This question—whether VICAR requires the defendant
to have committed the violent act for the primary or sole pur-
pose of maintaining or enhancing his purpose in the criminal
enterprise, or whether it is sufficient that he was motivated
only in part by such purpose—is one of first impression in
this circuit. However, at least five of our sister circuits have
addressed this question, and all of them have concluded that
VICAR’s purpose element is satisfied even if the maintenance
or enhancement of his position in the criminal enterprise was
not the defendant’s sole or principal purpose. In the first of
these cases, the Second Circuit “reject[ed] any suggestion that
the ‘for the purpose of’ element requires the government to
prove that maintaining or increasing position in the RICO
enterprise was the defendant’s sole or principal motive.”
1360 UNITED STATES v. BANKS
United States v. Concepcion, 983 F.2d 369, 381 (2d Cir.
1992). Instead, it held that § 1959(a) simply required that the
defendant’s “general purpose in [committing an act of vio-
lence] was to maintain or increase his position in the enter-
prise.” Id. Thus, the purpose element is met if “the jury could
properly infer that the defendant committed his violent crime
because he knew it was expected of him by reason of his
membership in the enterprise or that he committed it in fur-
therance of that membership.” United States v. Pimentel, 346
F.3d 285, 295-96 (2d Cir. 2003) (quoting Concepcion, 983
F.2d at 381). See also United States v. Smith, 413 F.3d 1253,
1277-78 (10th Cir. 2005) (adopting Second Circuit’s interpre-
tation of purpose requirement); United States v. Tse, 135 F.3d
200, 206 (1st Cir. 1998) (agreeing with Second and Fourth
Circuits that government need not prove “that the crime was
solely motivated by a desire to maintain or increase a particu-
lar position within the enterprise”); United States v. Wilson,
116 F.3d 1066, 1078 (5th Cir. 1997) (stating that “[s]elf-
promotion need not be the defendant’s sole or primary con-
cern” so long as acts are committed “as an integral aspect of
membership in such enterprises”) (internal quotation marks
omitted), vacated in part by United States v. Wilson, 1997
U.S. App. LEXIS 29843 (5th Cir. September 9, 1997) (stating
that panel opinion as to all but one defendant’s conviction
remained intact); United States v. Fiel, 35 F.3d 997, 1004 (4th
Cir. 1994) (“violent crimes committed as an integral aspect of
membership in such enterprises”) (internal quotation marks
omitted).
Banks argues that we should adopt a narrower construction
of VICAR’s purpose element than that adopted by our sister
circuits. In so arguing, he points to the text of the statute, the
principle that criminal statutes should be construed narrowly,
and the rule of lenity. Our reading of the statute, however,
convinces us that our sister circuits have correctly interpreted
the purpose element.
We start, as does Banks, with the language of the statute.
Cf. Navajo Nation v. HHS, 325 F.3d 1133, 1136 (9th Cir.
UNITED STATES v. BANKS 1361
2003) (“We begin, as always, with the language of the stat-
ute” (internal quotations omitted).). As noted above, VICAR
punishes certain violent acts committed by a defendant “for
the purpose of gaining entrance to or maintaining or increas-
ing position in an enterprise engaged in racketeering activity
. . . .” 18 U.S.C. § 1959(a). Banks places great emphasis on
the phrase “the purpose,” insisting that we must interpret the
definite article as expressing Congress’s intention to criminal-
ize only those acts where the defendant acted primarily—or
even exclusively—for a gang-related purpose. Banks argues
that Congress’s use of the definite article is conclusive: If
Congress had intended for VICAR to apply to defendants who
did not act with the sole purpose of entering or maintaining
their status within a criminal enterprise, it would have used
the indefinite article and the statute would read “[w]hoever,
. . . for a purpose of gaining entrance to or maintaining or
increasing position in an enterprise . . . .”
[3] Neither the “text, context, [nor] purpose” of this provi-
sion support this reading. United States v. Hughes, 282 F.3d
1228, 1231 (9th Cir. 2002). First, an unforced, natural reading
of the plain text provides no support for the interpretation
Banks proposes. See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)
(stating that courts look to “ordinary or natural meaning”
(internal quotations omitted)). The provision itself contains no
reference to the defendant’s “sole” or “exclusive” or “prima-
ry” purpose. See Concepcion, 983 F.2d at 381 (noting that
nothing in the text of the statute limited its application to
cases where the defendant’s sole or primary purpose was to
maintain gang membership). Moreover, the language Banks
proposes that Congress could have used if it had intended
VICAR to apply to defendants acting from multiple motives
—“for a purpose”—does violence to ordinary usage, and the
awkwardness of his proposed revision demonstrates the
implausibility of his argument. A more natural reading would
recognize that “[i]n ordinary usage, doing X ‘for the purpose
of’ Y does not imply that Y is the exclusive purpose.”
Hughes, 282 F.3d at 1231. Indeed, if Congress had meant for
1362 UNITED STATES v. BANKS
VICAR to apply only to defendants acting solely (or primar-
ily) for the purpose of entering a gang or maintaining or
enhancing their position within it, it could easily—and much
more naturally—have adopted language referring to “the sole
(or exclusive, or primary) purpose” of the defendant. In sum,
“the use of the word ‘the’ does not bear the weight that
[Banks] gives it.”2 Id.
The above analysis alone would justify our rejection of
Banks’s interpretation, but the context and purpose of the
VICAR statute also confirms this reading. See Hughes, 282
F.3d at 1231 (looking to context and purpose of provision in
addition to plain text); United States v. Davidson, 246 F.3d
1240, 1246 (9th Cir. 2001) (stating that we “consider[ ] not
2
Cases interpreting the Mann Act as it existed prior to 1986 support this
reading. In its pre-1986 incarnation, the Mann Act prohibited the knowing
transport in interstate commerce of “any woman or girl for the purpose of
prostitution or debauchery, or for any other immoral purpose.” 18 U.S.C.
§ 2421 (emphasis added). We held on at least two occasions that it was not
necessary that the defendant act solely, or even primarily, for the pro-
scribed immoral purpose. See United States v. Fox, 425 F.2d 996, 999 (9th
Cir. 1970) (upholding jury instructions that required the jury to find only
that the immoral purpose was one of the defendant’s dominant purposes
and that specifically stated it need not be the defendant’s sole or single
purpose); Bush v. United States, 267 F.2d 483, 485 (9th Cir. 1959) (“It is
not necessary that such intent be the sole and single purpose of the trans-
portation, if such purpose and intent was one of the reasons for the trans-
portation.”). Other circuits interpreted the Act’s purpose element similarly,
consistently holding that the Act did not require “that the sole and single
purpose of the transportation of a female in interstate commerce was such
immoral practices.” Dunn v. United States, 190 F.2d 496, 497 (10th Cir.
1951); see also Forrest v. United States, 363 F.2d 348, 349-50 (5th Cir.
1966); United States v. Salter, 346 F.2d 509, 511 (6th Cir. 1965) (holding
that Mann Act requires only that the defendant’s immoral purpose is “only
one of the dominant purposes”); Dingess v. United States, 315 F.2d 238,
240 n.2 (4th Cir. 1963) (stating that a conviction under the Mann Act
might be proper even if the defendant had acted with “a concurrent pur-
pose, [such as] enjoyment of scenery, a visit with a relative or investiga-
tion of legitimate employment opportunities”). Banks has pointed to
nothing in the text of the VICAR statute that demands a different interpre-
tation of its very similar purpose element.
UNITED STATES v. BANKS 1363
only the bare meaning of the word but also its placement and
purpose in the statutory scheme” (internal quotation marks
omitted)). As the Second Circuit noted in Concepcion, Con-
gress enacted VICAR to complement RICO, and it intended
VICAR, like RICO, “to ‘be liberally construed to effectuate
its remedial purposes.’ ” Concepcion, 983 F.2d at 380-81
(quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 497-98
(1985)); see also Odom v. Microsoft Corp., 486 F.3d 541, 547
(9th Cir. 2007) (en banc) (noting that both Congress and the
Supreme Court have instructed that RICO be liberally con-
strued and therefore declining to construe the statute nar-
rowly). Banks objects that a liberal construction of VICAR is
inappropriate because it is penal and not remedial in nature.
Although we agree that criminal statutes should generally be
construed narrowly, this principle does not operate as a flat
prohibition on statutes that are drafted to apply to a broad
range of conduct. We therefore see no reason to apply this
principle where the provision is part of a larger remedial
framework. Within this remedial context, we do not believe
that Congress intended for courts to busy themselves with
“rank[ing] the reasons that a defendant had for committing the
offense.” Hughes, 282 F.3d at 1231.
In fact, ranking the defendant’s reasons in such a fashion
would run directly contrary to VICAR’s purposes. In addition
to the general remedial purposes of the RICO regime to which
VICAR belongs, the statute targets violent crimes that are
integrally related to criminal organizations or membership
therein. Concepcion, 983 F.2d at 381 (noting that the purpose
requirement “was included as a means of proscribing murder
and other violent crimes committed ‘as an integral aspect of
membership’ in such enterprises” (quoting S. Rep. No. 98-
225, at 304-07 (1983) (“S. Rep. No. 98-225”)). We think it
obvious that these remedial purposes would be ill served by
requiring the government to prove that the defendant acted
primarily or solely for the purpose of enhancing or maintain-
ing his position within the organization. It would make little
sense to provide a safe-harbor from VICAR for gang mem-
1364 UNITED STATES v. BANKS
bers who can offer a plausible alternative motivation for their
acts. We do not believe Congress thought the range of human
motivations can be so easily catalogued and prioritized.
Banks also invokes the rule of lenity, arguing that the scope
of the VICAR purpose element is ambiguous and should be
construed in his favor. However, the rule of lenity applies
only when the statutory language contains “grievous ambigu-
ity or uncertainty” and “when, after seizing everything from
which aid can be derived, we can make no more than a guess
as to what Congress intended.” United States v. Wyatt, 408
F.3d 1257, 1262 (9th Cir. 2005) (quoting United States v.
Phillips, 367 F.3d 846, 857 n.39 (9th Cir. 2004)) (internal
quotations omitted); United States v. Pearson, 312 F.3d 1287,
1289 (9th Cir. 2002). Although Banks has shown that “it is
possible to articulate a construction more narrow than that
urged by the Government,” such a showing does not, without
more, justify a finding of ambiguity. Lisbey v. Gonzales, 420
F.3d 930, 933 (9th Cir. 2005); see also Pearson, 312 F.3d at
1289 (“Lenity cannot be invoked merely because a different
reading of the statute is possible.”). We have declared statutes
ambiguous and applied the rule of lenity only when “ ‘a rea-
sonable doubt persists about a statute’s intended scope even
after resort to the language and structure, legislative history,
and motivating policies of the statute.’ ” Lisbey, 420 F.3d at
933 (quoting Moskal v. United States, 498 U.S. 103, 108
(1990)). As the foregoing analysis demonstrates, an examina-
tion of the text, context, and purpose of the VICAR statute
leaves no reasonable doubt that the purpose element is satis-
fied “whether [the defendant’s gang-related purpose] be pri-
mary or secondary.” Hughes, 282 F.3d at 1231; see also
Concepcion, 983 F.2d at 380 (declining to apply rule of lenity
to VICAR’s purpose element because the statute was not
ambiguous).
[4] Because the text of the statute is clear and conforms
with both its context and purpose, we join our sister circuits
and hold that the purpose element does not require the Gov-
UNITED STATES v. BANKS 1365
ernment to show that the defendant was solely, exclusively, or
even primarily motivated by a desire to gain entry into, or
maintain or increase his status within, the criminal organiza-
tion. See, e.g., United States v. Concepcion, 983 F.2d 369.
We do not mean to say, however, that a defendant falls
within the scope of VICAR if his desire to enhance or main-
tain his status in the organization had any role, no matter how
incidental, in his decision to commit a violent act. To adopt
such a broad interpretation would risk extending VICAR to
any violent behavior by a gang member under the presump-
tion that such individuals are always motivated, at least in
part, by their desire to maintain their status within the gang;
if the reach of this element were not cabined in some way,
prosecutors might attempt to turn every spontaneous act or
threat of violence by a gang member into a VICAR offense.
The VICAR statute itself contains no indication that Congress
intended it to make gang membership a status offense such
that mere membership plus proof of a criminal act would be
sufficient to prove a VICAR violation. Otherwise, every traf-
fic altercation or act of domestic violence, when committed
by a gang member, could be prosecuted under VICAR as
well.
[5] Though our sister circuits have rejected the proposition
that the defendant’s purpose to maintain or enhance his status
must be his sole or primary purpose, they have not addressed
the question from the other side—whether the purpose ele-
ment is met if it is simply one of several purposes, regardless
of how incidental the gang-related motivation was in his com-
mission of the violent act. However, the language in these
cases suggests that a limit does exist. Concepcion, for exam-
ple, speaks of the defendant’s “general purpose” and seized
upon language in the legislative history suggesting that the
violent act must be committed “ ‘as an integral aspect of
membership’ ” in the gang. 983 F.2d at 381 (quoting S. Rep.
No. 98-225, at 304). Other circuits have employed the “gen-
eral purpose” or “integral aspect” formulation. See Smith, 413
1366 UNITED STATES v. BANKS
F.3d at 1277 (describing the purpose element as relating to
defendant’s “general purpose”); Tse, 135 F.3d at 206 (affirm-
ing a district court’s instruction that purpose element went to
the question of the defendant’s “general motive”); Wilson,
116 F.3d at 1078 (describing the purpose element as involving
acts that are committed “as an integral aspect of membership
in [criminal] enterprises”); Fiel, 35 F.3d at 1003-04 (describ-
ing the purpose element in terms of “violent crimes commit-
ted as an integral aspect of membership in [criminal]
enterprises” (internal quotation marks omitted)). Together,
these cases suggest that, although the law does not require
that the defendant’s gang-related purpose be his primary or
sole purpose, it does require that his purpose be more than
merely incidental: It must be within his “general” purpose, or,
in the alternative, the violence committed must be in some
way “integral” to the defendant’s membership in the gang.3
[6] Although we think the question is a close one, we con-
clude that the instructions given by the district court here were
erroneous because they permitted the jury to convict Banks on
the VICAR counts even if it found that his battle with Gil-
more was generally motivated by personal animosity and by
a desire to regain the respect and affection of his girlfriend,
so long as the jury also found some incidental purpose to
maintain his position in the gang. By permitting the jury to
find only that Banks’s desire to maintain or enhance his status
in the gang was “one of” or “at least one of” his purposes or
3
The Mann Act cases cited above also took this approach, limiting
application of the Act to those situations where the immoral purpose was
“one of the [defendant’s] dominant purposes.” Salter, 346 F.2d at 511; see
also Fox, 425 F.2d at 999. In other words, “[t]he illicit purpose denounced
by the Act may have coexisted with other purpose or purposes, but it must
have been an efficient and compelling purpose.” Dunn, 190 F.2d at 497;
see also Mellor v. United States, 160 F.2d 757, 764 (8th Cir. 1947)
(upholding a jury instruction stating that the government had to prove that
the immoral purpose was “not a mere incident but rather an efficient pur-
pose prompting and impelling the defendants to the transportation of the
girls”).
UNITED STATES v. BANKS 1367
“at least in part” due to his membership in the gang, the dis-
trict court ran the risk that the jury would focus not on
Banks’s general purpose in committing these crimes and its
relationship to his status in the gang, but merely on his status
as a gang member. Given that status, the jury could easily
infer that he acted “at least in part” to enhance his member-
ship and status within the gang.
We are persuaded that VICAR requires more than this.
People often act with mixed motives, so the gang or racke-
teering enterprise purpose does not have to be the only pur-
pose or the main purpose of the murder or assault. But it does
have to be a substantial purpose. Murder while a gang mem-
ber is not necessarily a murder for the purpose of maintaining
or increasing position in a gang, even if it would have the
effect of maintaining or increasing position in a gang.4 By
limiting the statute’s scope to those cases in which the jury
finds that one of the defendant’s general purposes or domi-
nant purposes was to enhance his status or that the violent act
was committed “as an integral aspect” of gang membership,
we ensure that the statute is given its full scope, without
allowing it to be used to turn every criminal act by a gang
member into a federal crime.
B. Sufficiency of the Evidence
Banks next argues that the evidence to convict him on the
VICAR counts was insufficient because the government’s
evidence failed to establish that his actions were motivated by
anything more than a desire for personal revenge.5 We review
4
The Supreme Court has expressed similar concerns in the context of a
provision excluding aliens entering for the purpose of prostitution: “Peo-
ple not of good moral character like others, travel from place to place and
change their residence. But to say that because they indulge in illegal or
immoral acts, they travel for that purpose, is to emphasize that which is
incidental and ignore what is of primary significance.” Hansen v. Haff,
291 U.S. 559, 562-63 (1934).
5
We reach this claim despite our reversal of Banks’s VICAR convic-
tions based on the jury instructions because “if the evidence is insufficient
1368 UNITED STATES v. BANKS
claims of insufficient evidence de novo. United States v.
Odom, 329 F.3d 1032, 1034 (9th Cir. 2003). “Evidence is
insufficient to support a conviction if, when viewed in the
light most favorable to the prosecution, no rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Daas, 198 F.3d
1167, 1174 (9th Cir. 1999) (internal quotation marks omitted).
As noted above, evidence is sufficient to convict under the
purpose element of the VICAR statute if his general purpose
was to maintain or enhance his position within the gang or if
the violent act was committed as an integral aspect of his
membership within the gang. See Smith, 413 F.3d at 1277;
Wilson, 116 F.3d at 1078.
For defendants in some criminal organizations, proving the
purpose element is straightforward. Such organizations often
have clearly delineated rules for establishing, maintaining,
and improving one’s position within the organization, and the
formality of the group’s structure makes it a simple matter to
determine the relationship between the defendant’s actions
and his status within the organization. See, e.g., Bracy, 67
F.3d at 1424-25 (describing structure of criminal organiza-
tion); Concepcion, 983 F.2d at 375 (same). However, formal
recognition by an organization’s hierarchy has never been
required to establish the purpose element of the VICAR stat-
ute. In Fernandez, for example, we held that the government
need not prove that the defendants, who were members of the
Mexican mafia, acted with the purpose of enhancing their
position “in the eyes of the enterprise itself”; rather, it was
sufficient that the motivation was to do so in the eyes of “indi-
viduals or factions within the enterprise.” 388 F.3d at 1232.
[7] In our prior VICAR cases, we have not addressed vio-
lence related to membership in a street gang like that pres-
on any count, the Double Jeopardy Clause would bar retrial on that count.”
United States v. Shipsey, 190 F.3d 1081, 1088 (9th Cir. 1999) (citing
United States v. Aguilar, 80 F.3d 329, 334 (9th Cir. 1996) (en banc)).
UNITED STATES v. BANKS 1369
ented here, but our decision in Fernandez implies that the
evidence is sufficient for a VICAR conviction even if, for
example, the jury could reasonably infer no more than that
Banks acted out of concern for his status in the eyes of his
“little homies” within the gang, or his reputation among other
gang members generally. Our sister circuits have taken a simi-
lar approach. For example, in Smith, the Tenth Circuit upheld
the VICAR conviction of a member of the King Mafia Disci-
ples (“KMD”), a group that had been formed by six individu-
als in juvenile detention in Salt Lake City. Smith, 413 F.3d at
1264. There, the court noted that “acts of violence were a
common part of KMD’s culture and that members were
expected to retaliate against acts of violence committed on
fellow members.” Id. at 1278. Members were expected to live
up to their gang nicknames by committing acts of violence.
Id. The court held that together this evidence was sufficient
to permit the jury to infer that the crime was “committed as
an integral aspect of membership in KMD.” Id. at 1277 (inter-
nal quotation marks and alterations omitted).
Similarly, in Wilson, the Fifth Circuit upheld VICAR con-
victions for members of the Bottoms Boys, a street gang in
Shreveport, Louisiana, based on evidence relating to gang
customs and expectations. 116 F.3d at 1078. Among the evi-
dence presented was the custom of “throwing” rival gang
signs: Gangs would identify themselves with hand gestures,
and one’s response indicated whether he respected or “dissed”
the other’s gang. Id. The evidence showed that members were
expected to retaliate violently when “dissed” by other gang
members. Id. Although the court acknowledged that VICAR
does not criminalize “mere retaliation for ‘dissing’ an individ-
ual or social organization,” the nature of the organization,
which relied on violence to secure its role in drug trafficking,
meant that “a reasonable jury could find that violent retalia-
tion for acts of disrespect promoted the goals of [the] illegal
enterprise.” Id.; see also United States v. Tipton, 90 F.3d 861,
891 (4th Cir. 1996) (holding that the purpose element of
VICAR was satisfied where the enterprise expected affronts
1370 UNITED STATES v. BANKS
to gang members to be met with a violent response); Fiel, 35
F.3d at 1004-05 (holding that the jury could reasonably con-
clude that participation in an inter-gang war was expected of
gang members); United States v. Boyd, 792 F. Supp. 1083,
1102 (N.D. Ill. 1992) (holding that the purpose element is sat-
isfied where aversion to violent acts would “invite trouble”
from other gang members).
The evidence presented regarding Banks and the Rolling
60s is arguably less conclusive than that presented in the cases
above, see, e.g., Smith, 413 F.3d at 1278 (noting the “exten-
sive testimony” that “acts of violence were a common part of
[the gang’s] culture”), and we believe that a jury could rea-
sonably have concluded that Banks was motivated primarily,
or even exclusively, by a personal vendetta against Gilmore.
That, however, is not the test for sufficiency of the evidence.
Rather, we must ask whether “no rational trier of fact could
have found the essential elements of the crime beyond a rea-
sonable doubt.” Daas, 198 F.3d at 1174.
The answer to that question is unequivocally “no.” The evi-
dence regarding Banks’s purpose in making multiple attempts
on Gilmore’s life, though not conclusive, would certainly
have been sufficient to permit a properly instructed jury to
infer that he had acted for the purpose of maintaining or
enhancing his position within the Rolling 60s. Several gov-
ernment witnesses testified about customs within the Rolling
60s and about the gang’s expectations of its members. For
example, Detective Bateson described the types of acts that
can cause a member to lose the respect of his comrades and
the consequences of that loss of respect. Another witness, a
former gang member, testified that the Crips would expect a
member of their gang to retaliate violently to the insult of
being called a crab; if a member failed to do so, he would be
considered “a buster and a punk . . . that means nobody’s
gonna respect you.” Furthermore, Banks himself testified that
he had enlisted his “little homies” in the gang to beat up and
shoot at Gilmore on his behalf, implying that what motivated
UNITED STATES v. BANKS 1371
Banks to repeatedly attack Gilmore could have been—or had
become—more than a merely personal vendetta.
In addition to the evidence involving the attempt on Gil-
more’s life, the government also introduced evidence of a
prior attack by Banks on one Mr. Lindsey. Banks had been
previously convicted for stabbing Lindsey in 2000. According
to testimony given by two LVMPD police officers, in 2000,
the two men had gotten into a fistfight, and Banks, in his own
words, “got whooped on.” Banks told the police that when his
girlfriend learned of the fight, she “basically called him a
punk” and said that “being that he’s in a gang, being in the
Rolling 60s, [ ] she [could not] believe that he’s not taking
care of business.” She “became upset[,] began yelling at
him[,] kind of taunting him” for not standing up for himself,
asking “what kind of Crip gang member are you?”
The evidence of the circumstances surrounding this prior
stabbing lends further support to the government’s allegation
that Banks acted with the purpose of maintaining or enhanc-
ing his status within the Rolling 60s. It tends to show that
Banks was concerned with his standing within the Rolling 60s
and was willing to act violently to preserve it. It also demon-
strates that Banks was fully capable of acting with dual pur-
poses.
[8] Given the evidence regarding the expectations that the
Rolling 60s held toward its members, the importance of main-
taining one’s status by responding with violence to perceived
slights, Banks’s own concerns with not appearing weak, his
use of gang members to pursue Gilmore, and his prior attack
on Lindsey, a properly instructed jury could reasonably have
inferred that one of Banks’s general purposes was to maintain
his position in the Rolling 60s. We therefore decline to
reverse the district court’s conviction for insufficient evi-
dence.
1372 UNITED STATES v. BANKS
C. Failure to Declare a Mistrial and Improper Allen
Charge
Banks next argues that the district court handled the jury’s
indication that it was deadlocked improperly and suggests that
the district court should have probed into the likelihood of the
jurors’ reaching a verdict—and perhaps then declared a
mistrial—before issuing what Banks characterizes as a de
facto Allen charge to the jury.6 Three hours after deliberations
began, the court received a note from the foreperson stating
that three jurors believed that the government had not proven
the elements of the VICAR charge beyond a reasonable
doubt. Specifically, they doubted that the government had
proved the purpose element and did “not think they [would]
change their minds.” Banks’s counsel moved for a mistrial,
and the government stated that it did not object. However,
when Banks was brought into the courtroom, he indicated that
he did not agree with the motion for a mistrial.
The government suggested that the court could declare a
mistrial sua sponte. However, after researching the issue over-
night, the district court concluded that declaring a mistrial
based only on the communication to him of the current vote
tally would be unjustified. Instead, the court had decided to
charge the jury not to reveal its vote tally again and to admon-
ish it to continue deliberations. Defense counsel agreed with
this approach. After two more hours of deliberation, the jury
again noted that they were “deadlocked on the verdicts.” The
court suggested bringing the jury into the courtroom to inform
6
The term “Allen charge” refers to a jury instruction at issue in Allen v.
United States, 164 U.S. 492 (1896). In Allen, the trial court had provided
supplemental instructions to the jury after it had spent some time deliber-
ating without having reached unanimity. In these instructions, the court
exhorted the jurors that they should decide the case if possible and keep
an open mind in their deliberations, with a willingness to be convinced,
and that “a dissenting juror should consider whether his doubt was a rea-
sonable one which made no impression upon the minds of so many men,
equally honest, equally intelligent with himself.” Id. at 501.
 UNITED STATES v. BANKS 1373
the jurors that deadlocks usually occurred after a longer
period and to encourage them to continue deliberations. The
government agreed. Defense counsel expressed his concern
that the jury appeared to be convinced in its current position
but also acknowledged that he did “understand it [was] too
early” to declare a mistrial.
The jury was brought into the courtroom at 11:45 am, and
the judge delivered the following statement:
Let me just inform you of the time parameters since
many of you have not served on juries before. Usu-
ally a deadlock occurs after—after many, many
hours of deliberation, sometimes days, and not—not
just a few minutes. And—and from the very begin-
ning of your deliberations, we have received notes
indicating after not too much time spent in the jury
room that you are deadlocked.
Your deliberations have been interrupted several
times while awaiting a response from the Court and
that is because it takes time to contact counsel and
in some cases have counsel appear if they request to
be present while you are instructed.
It is obvious that you have been taking votes; how-
ever, in the Court’s view, the time for discussion has
been short comparatively speaking. It does not
appear to me that you have had enough time to con-
duct the thorough, ongoing discussion that would
proceed [sic] a unanimous verdict. I’m going to ask
you to return to the jury room. I’m going to ask you
to review all of the evidence consisting of the testi-
mony and exhibits admitted by the Court. You need
to discuss all of that very thoroughly to go over it,
evaluate it in the light of reason and common experi-
ence and then use reason and persuasion to arrive at
a verdict.
1374 UNITED STATES v. BANKS
Review the jury instructions which will inform you
of what is required for you to reach a verdict on all
of the counts. You do not have to surrender your
honest convictions to arrive at a verdict; however,
your decision must be based on—and your individ-
ual decisions must be based on logic and a consider-
ation of all the evidence and—and based on a
thorough discussion of—of those jury instructions
and all the evidence that has been presented in the
case.
And to just fold your arms and—and refuse to dis-
cuss is—is not what is expected. It is expected that
you will—you will all discuss and point to various
pieces of evidence or lack of evidence, if that is that
case, and—and deliberate very thoroughly in arriv-
ing at your verdict.
Neither the government nor defense counsel added any com-
ments or made any objection. The jury returned a unanimous
guilty verdict at 2:39 pm.
We generally review the district court’s denial of a motion
for a mistrial for abuse of discretion. United States v. Allen,
341 F.3d 870, 891 (9th Cir. 2003); United States v. Green,
962 F.2d 938, 944 (9th Cir. 1992) (“We accord great defer-
ence to a trial judge’s decision whether to declare a mistrial
because of jury deadlock.”). However, when the motion is
withdrawn by the defendant, we review the district court’s
failure to sua sponte declare a mistrial for plain error. See
United States v. Greenbank, 491 F.2d 184, 188 (9th Cir.
1974). We address this issue even though we reverse Appel-
lant’s conviction on the VICAR counts because Banks
appears to argue that the district court should have declared
a mistrial as to all counts, thereby terminating the proceedings
as a whole.
The same standard applies to our review of the district
court’s supplemental instructions to the jury. Although such
UNITED STATES v. BANKS 1375
instructions, including Allen charges, are typically reviewed
for abuse of discretion, see United States v. Steele, 298 F.3d
906, 909 (9th Cir. 2002), Banks did not object to those
instructions at the time they were given. We therefore review
the district court’s instructions for plain error. See United
States v. Olano, 62 F.3d 1180, 1201 (9th Cir. 1995). Under
plain error review, we may reverse a district court’s decision
only when the defendant establishes that (1) the district court
has erred; (2) the error is plain, or “obvious,” under current
law; (3) the error “affect[s] substantial rights” of the defen-
dant; and (4) the error “seriously affect[s] the fairness, integ-
rity or public reputation of judicial proceedings.” United
States v. Olano, 507 U.S. 725, 733-37 (1993) (internal quota-
tions omitted).
[9] Given the district court’s wide discretion in deciding
whether to declare a mistrial sua sponte and the absence of
any coercive element in the instructions, we cannot conclude
that the district court plainly erred. As to the first issue, we
have held that the district court should consider several fac-
tors when determining whether it should sua sponte declare a
mistrial. These factors include “the jury’s collective opinion
that it cannot agree, the length of the trial and complexity of
the issues, the length of time the jury has deliberated, whether
the defendant has objected to a mistrial, and the effects of
exhaustion or coercion on the jury.” United States v.
Hernandez-Guardado, 228 F.3d 1017, 1029 (9th Cir. 2000).
In the proceedings below, only the first of these factors
weighed in favor of declaring a mistrial; aside from the jury’s
apparent belief that it was deadlocked, all of the other factors
weighed against declaring a mistrial.
[10] Our decision in United States v. Changco, 1 F.3d 837
(9th Cir. 1993), is instructive here. In that case, the defendant
moved for a mistrial after the jury foreperson sent a note to
the court stating, “Can’t convince one person. Don’t know
what to do. Set mind before case. She can’t hear well and is
not looking at evidence.” Id. at 842. We held that the district
1376 UNITED STATES v. BANKS
court did not err in denying the motion to declare a mistrial.
Id. at 843. This case is no different—the jury here engaged in
nearly identical behavior, and the judge did not actively seek
out the numerical division of the jury. Moreover, as noted
above, Banks himself withdrew his motion for a mistrial.
Given these factors, sua sponte declaration of a mistrial was
not manifestly necessary.
[11] Likewise, the district court did not commit plain error
by giving supplemental instructions to the jury, even assum-
ing that these instructions somehow amounted to a “de facto
Allen charge,” as Banks contends. Such charges are proper “in
all cases except those where it’s clear from the record that the
charge had an impermissibly coercive effect on the jury.”
United States v. Ajiboye, 961 F.2d 892, 893 (9th Cir. 1992)
(internal quotation marks omitted); see also United States v.
Lorenzo, 43 F.3d 1303, 1307 (9th Cir. 1995). Banks has pro-
vided no evidence that the district court’s instructions had
such an effect.
The instructions the judge gave here are comparable to past
cases in which this Court has held that the instructions given
were not impermissibly coercive. In Changco, for example,
we held that there was no impermissible coercion where the
foreperson had informed the court that one holdout remained,
and the district court responded by directing the jury not to
disclose its numerical division again, urging them to continue
deliberating and to try to reach a verdict, and encouraging “in-
dividual jurors not to surrender their conscientiously-held
beliefs.” Changco, 1 F.3d at 842. Similarly, in Lorenzo, we
held that even where the jury was split 11-1, an Allen charge
given by the judge was not inherently coercive because the
judge did not know the identity of the holdout juror; this, in
turn, meant that it was unlikely that the lone holdout felt
unduly pressured by the judge’s remarks. Lorenzo, 43 F.3d at
1307.
Banks fails to show how the district court’s instructions in
this case materially differ from those at issue in Lorenzo and
UNITED STATES v. BANKS 1377
Changco. First, because the jury’s note stated that three jurors
were holding out and did not provide any information about
the holdouts that would permit the judge to identify them,
there was little possibility that the judge could place pressure
on any given juror. Cf. Lorenzo, 43 F.3d at 1307 (holding that
an Allen charge was not inherently coercive even though jury
was split 11-1 because the judge did not know the identity of
the holdout juror). In fact, the judge here did not give his sup-
plemental instruction immediately after receiving the note
identifying the current vote tally; the jurors continued deliber-
ating for an additional two hours and did not inform the court
of the latest vote tally before the supplemental instructions
were issued. Second, unlike in Changco, there was no evi-
dence of coercion of the holdouts by the other jurors. Third,
the judge here gave the supplemental instructions only once;
the jury continued deliberating at least two hours before
reaching its verdict; and the jury appears to have requested
portions of the evidence to be shown to them again. See id.
(identifying all of these factors as relevant in determining
whether instruction was coercive); United States v. Bonam,
772 F.2d 1449, 1451 (9th Cir. 1985) (stating that announce-
ment of verdict 90 minutes after instruction did not raise sus-
picion of coercion); United States v. Beattie, 613 F.2d 762,
765 (9th Cir. 1980) (noting length of post-instruction deliber-
ation to be relevant in determining whether instruction was
coercive). Finally, the judge emphasized that he was encour-
aging the jurors to engage in discussion and not to “surrender
[their] honest convictions” in the process. See Green, 962
F.2d at 944 (stating that “cautionary statements” made supple-
mental instruction “even less coercive than simply asking the
jury to continue deliberating”).
[12] In sum, these factors “make[ ] it far from clear” that
the charge given by the judge here—even assuming it was an
Allen charge—had a coercive effect on the jury. See Daas,
198 F.3d at 1180. Consequently, we hold that the district
court did not plainly err (if it erred at all) when it declined to
1378 UNITED STATES v. BANKS
declare a mistrial and instead gave supplemental instructions
that encouraged the jury to continue deliberations.
D. Evidence of Facts Underlying Prior Convictions
Banks also contends that the judge should have excluded
evidence regarding the violent acts underlying his prior felony
conviction, namely his retaliatory stabbing of Lindsey, under
Federal Rule of Evidence 404(b). Although we generally
review the district court’s evidentiary rulings for abuse of dis-
cretion, see Old Chief v. United States, 519 U.S. 172, 174 n.1
(1997); United States v. Lynch, 367 F.3d 1148, 1159 (9th Cir.
2004), we review the district court’s ruling for plain error
when the defendant did not object during trial on the basis he
asserts on appeal. United States v. Sioux, 362 F.3d 1241, 1245
n.5 (9th Cir. 2004). Because Banks objected to admission of
this evidence only on the basis that the parties had already
stipulated to the fact of conviction, and not on the basis of
Rule 404(b), we review the district court’s admission of the
evidence for plain error.
[13] Rule 404(b) provides that the district court may admit
evidence of prior bad acts if it “(1) tends to prove a material
point; (2) is not too remote in time; (3) is based upon suffi-
cient evidence; and, (4) in some cases, is similar to the
offense charged.” United States v. Robertson, 15 F.3d 862,
870 (9th cir. 1994), rev’d on other grounds, 514 U.S. 669
(1995). Even if the proffered evidence satisfies these require-
ments, the district court should decline to admit it “if its pro-
bative value is substantially outweighed by the danger of
unfair prejudice.” Id.; FED. R. EVID. 403.
Prior to trial, Banks moved to sever the felon-in-possession
count, but the government offered in return—and Banks
agreed—to stipulate to the fact of the prior conviction. During
trial, the government sought to introduce the facts underlying
that conviction as evidence of his concern with maintaining
his status in the Rolling 60s, even if it required the use of vio-
UNITED STATES v. BANKS 1379
lence. As discussed above, the evidence established that
Banks had stabbed a man named Lindsey, who had “whupped
up on” Banks. Moreover, the government’s evidence tended
to show that the stabbing occurred after Banks’s girlfriend
had called him a “punk” and accused him of not taking care
of Rolling 60s business by letting Lindsey beat up on him.
Banks objected to admission of this evidence on the
grounds that he had stipulated to the fact of the subsequent
conviction. The government, however, argued that the evi-
dence was relevant to the VICAR counts because it showed
that Banks was concerned about, and willing to retaliate vio-
lently in response to, threats to his status in the gang. The
court admitted the evidence but warned the government to
“[s]tay away from” the already-stipulated-to conviction.
[14] On appeal, Banks argues that the district court’s
admission of this evidence was improper for three reasons.
None have any merit. First, he argues that the evidence was
not relevant to determining Banks’s motive in attempting to
murder Gilmore. However, as discussed in the context of his
sufficiency of the evidence claim, evidence that Banks
attacked Lindsey only after, and in response to, his girl-
friend’s taunts about his status in the Rolling 60s is directly
relevant to proving that Banks was committed to maintaining
his gang status even if he had to engage in violent behavior
to do so. Second, he argues that the Lindsey stabbing predated
his attempted murder of Gilmore, implying that it was too far
removed in time to be admissible under Rule 404(b). But his
attack on Lindsey occurred only four years prior to Banks’s
acts here, which is not remote in time, particularly given the
government’s reason for introducing the evidence—i.e., to
show motive—and Banks’s continued membership in the
Rolling 60s during that entire period. Finally, he argues that
the evidence was prejudicial, in that it helped portray Banks
as a violent individual and thus appealed to the emotions of
the jury. However, there is nothing inherent in this evidence
that would create a risk that he would be convicted “on a
1380 UNITED STATES v. BANKS
ground different from proof specific to the offense charged.”
Old Chief, 519 U.S. at 180; United States v. Gonzalez-Flores,
418 F.3d 1093, 1098 (9th Cir. 2005). Nothing in the facts
would shock the average juror or otherwise render the jury
incapable of weighing the evidence in a disinterested manner.
And even assuming that the evidence had some prejudicial
effect, given the relevance of the evidence to the question of
motive, we cannot say that any prejudice it might have caused
outweighed its significant probative value.
E. Cumulative Error
Banks’s final argument is an omnibus claim that evidence
regarding his “uncharged misconduct,” though not plainly
erroneous on its own, created a “prejudicial cumulative
effect” and creates a “miscarriage of justice.” Because no
objection to the evidence he challenges on appeal was made
during trial, we again review the district court’s evidentiary
rulings for plain error. See United States v. Morris, 827 F.2d
1348, 1350 (9th Cir. 1987). This claim fails because Banks
has not shown that any of the alleged errors were, in fact,
errors.
Banks points to the testimony of two witnesses, both police
officers, as improperly admitted and cumulatively prejudicial.
First, Detective Majewski testified regarding his discovery of
“imitation crack” in Banks’s shoe when he arrested Banks on
an outstanding warrant. Second, Officer Ziel testified that he
found several rocks of cocaine, each wrapped in plastic, under
Banks’s tongue during a search.
[15] As the government points out, this evidence went
directly to showing that Banks engaged in the type of activity
that characterized the Rolling 60s, the organization underlying
the VICAR statute. Because one element of VICAR is mem-
bership in a racketeering organization, this evidence of other
wrongful acts was directly relevant to establishing an element
of the charged offense. As the district court did not err in
UNITED STATES v. BANKS 1381
admitting this evidence, Banks cannot establish that he was
prejudiced by cumulative error.
III
Because the district court erred by instructing the jury that
it could convict Banks under the VICAR statute if it found
that any element of his motivation, no matter how incidental,
in assaulting Gilmore was to maintain his membership in the
Rolling 60s, we REVERSE his conviction and sentence as to
the two VICAR counts and REVERSE his conviction and
sentence as to the two use of firearm counts, which were pred-
icated on his VICAR convictions. See United States v. Ritter,
989 F.2d 318, 322 (9th Cir. 1993). We REMAND for further
proceedings and AFFIRM the district court in all other
respects.
REVERSED and REMANDED in part; AFFIRMED in
part.