United States v. Susan Rodriguez ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50213
Plaintiff-Appellee,
D.C. No.
v. 8:11-cr-00148-
JVS-24
SUSAN JEANETTE RODRIGUEZ, AKA
Suzie Rodriguez,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted February 5, 2020
Pasadena, California
Filed August 20, 2020
Before: Sidney R. Thomas, Chief Judge, and Kim McLane
Wardlaw and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Nguyen
2 UNITED STATES V. RODRIGUEZ
SUMMARY *
Criminal Law
The panel affirmed a defendant’s convictions, for
conspiracy in violation of the Racketeer Influenced and
Corrupt Organizations (RICO) Act and conspiracy in
violation of the Violent Crimes in Aid of Racketeering
Activity (VICAR), arising out of the defendant’s role as
“secretary” to a high-ranking member of the Mexican Mafia
(La Eme).
Rejecting Rodriguez’s challenges to the VICAR
conviction, the panel held that the district court correctly
gave a “substantial purpose” rather than “but-for-cause”
instruction for the membership-purpose element, and that the
evidence was sufficient to support the membership-purpose
requirement.
The panel rejected the defendant’s challenges to the
district court’s jury instructions on the RICO count and its
special mid-trial instruction about the selection and
admission of evidence. The panel wrote that even if the
defendant’s view of the jury instructions is correct—i.e., that
the district court supplanted the requirement that the
government prove her “agreement” that a participant would
commit racketeering acts with the weaker requirement that
the government need only prove her “knowledge” or
“contemplation”—the district court used the defendant’s
preferred formulation where it mattered, in laying out the
*
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. RODRIGUEZ 3
elements of the offense. The panel also held that if there
were error, it would be harmless. Rejecting the defendant’s
contention that the instructions erroneously broadened the
basis for conviction beyond the scope of the RICO statute,
the panel wrote that the defendant does not present a
compelling reason to depart from the weight of authority
upholding RICO convictions premised on attempts and
conspiracies as predicate racketeering acts. The panel held
that the district court did not abuse its discretion in giving a
mid-trial instruction about the selection of recordings
introduced into evidence by the prosecution.
The panel held that the district court’s instructions
regarding the dual-role opinion testimony offered by two law
enforcement witnesses were not plainly erroneous. The
panel nevertheless emphasized that trial courts should
endeavor to explain clearly the differences between lay
percipient testimony, lay opinion testimony (as governed by
Fed. R. Evid. 701), and expert opinion testimony (as
governed by Fed. R. Evid. 702) in settings where all three
arise.
Regarding the defendant’s argument that the district
court erred in admitting the testimony of two officers about
the meaning of intercepted phone calls, the panel held that
the district court misapplied the Rules of Evidence when it
uniformly treated all of their interpretive testimony as expert
opinion, irrespective of the specific foundation for any
individual statement. The panel reiterated that Rule 702
requires district courts to assure that an expert’s methods for
interpreting new terminology are both reliable and
adequately explained. The panel wrote that while the
officers established the requisite personal knowledge to
support some of their lay opinions, they failed to do so in
numerous instances, and those portions of their testimony
4 UNITED STATES V. RODRIGUEZ
were erroneously admitted. Upon consideration of the
totality of the record, the panel held that the erroneously
admitted testimony was harmless.
The panel held that the district court did not abuse its
discretion in excluding proffered testimony by the
defendant’s sister. The panel wrote that the district court
reasonably concluded that the only proffered testimony with
meaningful probative value went to an unreserved duress
defense—and that all other testimony in the proffer carried
minimal probative force, substantially outweighed by the
risk of unfair prejudice. The panel found that cumulative
error does not provide a basis for reversal.
COUNSEL
Davina T. Chen (argued), Sentencing Resource Counsel,
Federal Public Community Defenders, Los Angeles,
California, for Defendant-Appellant.
Robert J. Keenan (argued) and Joseph T. McNally, Assistant
United States Attorneys; L. Ashley Aull, Chief Criminal
Appeals Section; Nicola T. Hanna, United States Attorney;
United States Attorney’s Office, Santa Ana, California; for
Plaintiff-Appellee.
UNITED STATES V. RODRIGUEZ 5
OPINION
NGUYEN, Circuit Judge:
Susan Rodriguez appeals her convictions and sentence
arising out of her role as “secretary” to a high-ranking
member of the Mexican Mafia (“La Eme”). In 2011, as part
of a large-scale prosecution, Rodriguez was indicted along
with many other individuals for conspiring to conduct the
affairs of the Orange County branch of the Mexican Mafia
(“OCMM”) through a pattern of racketeering activity
including extortion, drug trafficking, and conspiracies and
attempts to commit murder.
For approximately three years, Rodriguez served as
“secretary” for Peter Ojeda, the leader of the OCMM, and
for her ex-husband, Tommy Rodriguez. In that capacity,
Rodriguez delivered messages among Eme members and
their mesas (i.e. leadership teams), collected and disbursed
“tax” money earned from extortion, and, ultimately,
conspired to murder gang members who were deemed a
threat to Ojeda’s leadership.
Prior to trial, Rodriguez reached a favorable “package-
deal” plea agreement with the government, but it fell through
when Ojeda, who was included in the plea agreement,
declined to allocute. After weeks of heated testimony and
advocacy, the jury returned a guilty verdict against
Rodriguez on two counts: (i) conspiracy in violation of the
Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1962, and (ii) conspiracy in violation
of the Violent Crimes in Aid of Racketeering Activity
(“VICAR”) statute, 18 U.S.C. § 1959. Rodriguez was
sentenced to 78 months imprisonment.
6 UNITED STATES V. RODRIGUEZ
On appeal, Rodriguez raises numerous challenges to the
trial court’s jury instructions, its evidentiary rulings, and the
sufficiency of the evidence. 1 We have jurisdiction pursuant
to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
I. VICAR Membership Purpose
Rodriguez challenges her VICAR conviction on the
grounds that the district court failed to properly instruct the
jury on the membership-purpose element, and that the
evidence of a membership purpose was insufficient to
support her conviction.
A. Jury Instruction
To support a VICAR conviction, the government must
show: “(1) that the criminal organization exists; (2) that the
organization is a racketeering enterprise; (3) that the
defendants committed [or attempted or conspired to commit]
a violent crime; and (4) that they acted for the purpose of
promoting their position in [or gaining entrance to] the
racketeering enterprise.” United States v. Bracy, 67 F.3d
1421, 1429 (9th Cir. 1995); see 18 U.S.C. § 1959. The
parties agree on this general framework but dispute what
exactly the fourth element, the membership-purpose
element, requires. Rodriguez argues that the government
must prove that a membership purpose—gaining entrance
to, or maintaining or increasing her position in, the
OCMM—was the but-for cause of her conduct. The
government argued for, and the district court applied, a
1
Rodriguez also appeals her sentence, which we address in a
memorandum disposition filed concurrently with this opinion.
UNITED STATES V. RODRIGUEZ 7
lesser “substantial purpose” standard. 2 We hold that the
district court properly instructed the jury on the elements of
a VICAR conspiracy.
We held in United States v. Banks, 514 F.3d 959, 970
(9th Cir. 2008), that the VICAR statute is limited “to those
cases in which the jury finds that one of the defendant’s
general purposes or dominant purposes was to enhance his
status or that the violent act was committed ‘as an integral
aspect’ of gang membership.” Recognizing that “[p]eople
often act with mixed motives,” we rejected a more stringent
reading of VICAR that would require the gang or
racketeering enterprise purpose to be the “only purpose” or
the “main purpose” behind the violent conduct. Id. at 969;
see also id. at 968 (concluding “that the purpose element
does not require the Government 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 organization”). We emphasized that
“[i]t would make little sense to provide a safe-harbor . . . for
gang members who can offer a plausible alternative
motivation for their acts.” Id. at 967. However, we
2
The court gave the following jury instruction:
With respect to the fourth element of Count Two, it is
not necessary for the government to prove that the
required motive was the sole purpose, or even the
primary purpose of the defendant in conspiring to
commit the charged crime. You need only find that
enhancing the defendant’s status in the alleged
enterprise was a substantial purpose of the defendant
or that the defendant conspired to commit the one or
both of the alleged crimes of violence (i.e., murder or
assault resulting in serious bodily injury) as an integral
aspect of membership in the enterprise.
8 UNITED STATES V. RODRIGUEZ
explained, the membership purpose “does have to be a
substantial purpose.” Id. at 969.
Rodriguez acknowledges Banks but contends that the
Supreme Court’s intervening decisions in Burrage v. United
States, 571 U.S. 204 (2014), and Husted v. A. Philip
Randolph Institute, 138 S. Ct. 1833 (2018), 3 mandate “[a]
minimum of but-for causation.” We disagree.
In Burrage, the Supreme Court evaluated the level of
causation required to trigger the Controlled Substances Act’s
20-year mandatory minimum sentence for drug distribution
offenses when “death or serious bodily injury results from
the use of such substance.” 571 U.S. at 206 (quoting
21 U.S.C. § 841(a)(1), (b)(1)(A)–(C)). Burrage held that the
“results from” language in the Controlled Substances Act
established a but-for causation requirement. Id. at 218–19.
It explained that the phrase “results from” imposes “a
requirement of actual causality,” and that a “but-for
requirement is part of the common understanding of cause.”
Id. at 211. It added that courts have routinely interpreted
similar language—including “because of,” “based on,” and
“by reason of”—to require a but-for causal relationship. Id.at 212–14.
Burrage, however, is not clearly irreconcilable with our
decision in Banks, so Banks remains binding precedent in
this circuit. See Miller v. Gammie, 335 F.3d 889, 893 (9th
Cir. 2003) (en banc). The two cases grappled with entirely
3
We fail to see the relevance of Husted, so we center our discussion
on Burrage instead. Husted held that the phrase “by reason of” in the
National Voter Registration Act’s (“NVRA”) Failure-to-Vote Clause
imported a “sole causation” standard. 138 S. Ct. at 1843. But the
Supreme Court’s decision hinged almost entirely on statutory context,
tailored specifically to the NVRA. Id. at 1842–43.
UNITED STATES V. RODRIGUEZ 9
distinct statutes, in an analytic exercise that is heavily
dependent on context. Our detailed analysis of the structure,
context, and purpose of the VICAR statute is in no way
undermined by the Supreme Court’s evaluation of the
Controlled Substances Act in Burrage. In addition, the
“results from” language evaluated in Burrage differs
materially from the “for the purpose of” language assessed
in Banks. The latter phrase concerns motive whereas the
former concerns causation, such that the causation-oriented
reasoning of Burrage does not readily extend to the VICAR
purpose requirement. Reinforcing the conclusion that Banks
remains intact, we reiterated its holding in United States v.
Smith, 831 F.3d 1207, 1217–18 (9th Cir. 2016), which was
decided more than two years after Burrage. 4
The substantial purpose instruction given by the district
court closely tracks our framing from Banks and Smith. See
Smith, 831 F.3d at 1218 (“As we made clear in Banks, in the
gang or racketeering area, when a person has two criminal
purposes neither has to dominate (be the main purpose), but
then neither can be ‘merely incidental’ either. More simply
put, perhaps, both purposes must be substantial.”); Banks,
514 F.3d at 969 (explaining that “the gang or racketeering
enterprise purpose does not have to be the only purpose or
the main purpose of the murder or assault[,] [b]ut it does
have to be a substantial purpose”); id. at 970 (holding that
the VICAR purpose element is also satisfied where “the
violent act was committed ‘as an integral aspect’ of gang
membership”). Because Banks and Smith remain good law,
the district court correctly gave a “substantial purpose”
4
We also note that the Sixth Circuit agreed with Banks’ formulation
of the VICAR purpose requirement, in a decision that issued seven
months after Burrage. United States v. Hackett, 762 F.3d 493, 500 (6th
Cir. 2014).
10 UNITED STATES V. RODRIGUEZ
rather than “but-for cause” instruction for the VICAR
purpose element.
B. Sufficiency of the Evidence
Rodriguez also contends that the evidence was
insufficient to satisfy VICAR’s membership-purpose
requirement. She argues that the government failed to prove
she acted with any membership purpose at all, and, in the
alternative, that the government failed to prove a
membership purpose was the but-for cause of her conduct. 5
We review sufficiency of the evidence de novo. United
States v. Bennett, 621 F.3d 1131, 1135 (9th Cir. 2010). “A
claim of insufficient evidence fails if ‘after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’” Id. (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Although
the government’s evidence as to a membership purpose was
not overwhelming, Rodriguez falls short of meeting the high
standard applicable on sufficiency-of-the-evidence review.
To satisfy the VICAR statute, the government did not
need to prove that Rodriguez was considered an official
member of the Mexican Mafia. The VICAR statute speaks
of maintaining or increasing one’s “position” within the
enterprise—a broad term that encompasses the ringleader of
an Eme faction as well as the less formalized role of his
“secretary.” Accord United States v. Brady, 26 F.3d 282,
289–90 (2d Cir. 1994) (rejecting the defendant’s argument
5
Because we reject Rodriguez’s proposed but-for cause
requirement, we assess her sufficiency-of-the-evidence challenge
instead through the substantial-purpose framework discussed in the
preceding section.
UNITED STATES V. RODRIGUEZ 11
that his VICAR conviction should be reversed because he
was a mere associate, rather than a “made member,” of a
crime family). We further note that the enterprise charged
in the indictment broadly encompassed the organization’s
“leadership, membership, and associates.” The indictment’s
framing reinforces that official Eme membership was not a
prerequisite to a VICAR conviction here. Accord id. at 290(upholding the VICAR conviction of an “associate” of a
crime family, where the enterprise charged in the indictment
included both “members and associates” of the crime
family).
The government presented sufficient expert and
percipient testimony, as well as recorded conversations and
seized correspondence, to establish that Rodriguez served as
an Eme secretary and facilitated acts of violence as a part of
that role. The conduct at the center of the VICAR count is
inextricably tied to Rodriguez’s position as secretary—
principally, her dissemination of communications to direct
the activities of Ojeda’s mesa, including instructions to
murder or otherwise inflict violence upon those who
threatened Ojeda or the people loyal to him.
Although Rodriguez offers a more innocuous alternative
explanation for her conduct, we must view the evidence in
the light most favorable to the government and presume the
jury resolved all conflicts against her. See United States v.
Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc).
The jury could have accepted Rodriguez’s version of events,
but the evidence did not mandate that it do so. And notably,
Rodriguez’s proffered narrative, i.e., that she acted out of a
desire to protect herself and her family, is not inconsistent
with a VICAR membership purpose. This VICAR element
focuses not on the defendant’s purpose for gang affiliation,
but rather on whether that gang affiliation motivated the
12 UNITED STATES V. RODRIGUEZ
relevant conduct. For these reasons, we find that sufficient
evidence supports Rodriguez’s VICAR conviction.
II. RICO Jury Instructions and Mid-Trial Instruction
We next address Rodriguez’s challenges to the district
court’s jury instructions on the RICO count and its special
mid-trial instruction about the selection and admission of
evidence.
We review de novo whether a jury instruction misstates
the law. United States v. Cortes, 757 F.3d 850, 857 (9th Cir.
2014). However, we review the “language and formulation”
of a jury instruction for abuse of discretion. Id. Jury
instructions must be evaluated “as a whole, and in context,”
rather than in piecemeal. United States v. Stapleton,
293 F.3d 1111, 1114 (9th Cir. 2002). A preserved
instructional error warrants reversal unless it is harmless
beyond a reasonable doubt. United States v. Montoya-
Gaxiola, 796 F.3d 1118, 1124 (9th Cir. 2015). An
unpreserved objection is subject to plain error review.
United States v. Murphy, 824 F.3d 1197, 1204 (9th Cir.
2016).
A. Instructions Regarding Agreement
Rodriguez does not dispute that the district court gave an
accurate jury instruction listing the elements of Count 1, the
RICO charge. That instruction, Jury Instruction 32, required
the government to prove five elements to sustain a RICO
conviction, with the fifth element that Rodriguez “agreed
that one or more participants in the conspiracy . . . would
commit at least two racketeering acts.” Rodriguez contends,
however, that the court twice supplanted the requirement
that the government prove her “agreement” that a participant
would commit racketeering acts with the weaker
UNITED STATES V. RODRIGUEZ 13
requirement that the government need only prove her
“knowledge” or “contemplation” that a participant would
commit racketeering acts. Specifically, Jury Instruction 42
elaborated, in relevant part, as follows:
Now that I have instructed you on the various
types of racketeering, I will return to the fifth
element of Count 1: the defendant agreed that
one or more participants in the conspiracy,
not necessarily the defendant, would commit
at least two racketeering acts.
You must all agree beyond a reasonable
doubt as to which type or types of
racketeering activity you find that the
defendant knew or contemplated would be
committed by one or more members of the
conspiracy.
The court also gave a similar admonition earlier; in one of
its racketeering instructions, the court directed the jurors that
they “must all agree beyond a reasonable doubt as to which
type or types of racketeering activity you find that the
defendant knew or contemplated would be committed by one
or more members of the conspiracy.”
Even if Rodriguez’s view of the jury instructions is
correct, her argument nevertheless fails. The district court
used Rodriguez’s preferred formulation where it mattered,
i.e., in laying out the elements of the offense. Rodriguez’s
challenge arises from subsidiary language in the court’s
unanimity charge—which bore only on juror unanimity as to
the types of racketeering activity involved in the RICO
conspiracy. Therefore, even accepting the premise of
Rodriguez’s argument as true, we find no reversible error
14 UNITED STATES V. RODRIGUEZ
when the jury instructions are considered “as a whole, and in
context.” 6 Stapleton, 293 F.3d at 1114.
Finally, we note that, if there were error, it would be
harmless. The collectivity of the jury instructions
communicated clear guidance about the agreement required
to support a RICO conviction, mitigating any potential
confusion from stray remarks by the court. See Estelle v.
McGuire, 502 U.S. 62, 72 (1991) (“It is well established that
[a jury] instruction may not be judged in artificial isolation,
but must be considered in the context of the instructions as a
whole and the trial record.” (internal quotation marks and
citation omitted)); United States v. Garcia, 729 F.3d 1171,
1178 (9th Cir. 2013) (explaining that harmless error includes
the consideration of “whether the element at issue is
sufficiently explained, given the totality of the
instructions”). The district court undisputedly gave a proper
agreement instruction when delineating the elements of the
offense and, in its conspiracy instructions, further clarified
that mere association with or knowledge of a conspiracy
does not equate with co-conspirator status. Moreover, there
was significant evidence presented at trial that implicated
Rodriguez in an active role in multiple predicate acts. For
these reasons, we find no basis for reversal on the claimed
instructional error.
B. Instructions Regarding Attempt and Conspiracy as
Predicate Acts
The district court, over Rodriguez’s objection, instructed
the jury on predicate racketeering acts encompassing
6
We also note that the district court gave general jury instructions
on conspiracy that correctly explained that mere association with or
knowledge of a conspiracy does not make someone a conspirator.
UNITED STATES V. RODRIGUEZ 15
attempts and conspiracies to commit murder, extortion, and
drug trafficking. Rodriguez contends that these jury
instructions erroneously broadened the basis for conviction
beyond the scope of the RICO statute, because attempts and
conspiracies do not qualify as predicate racketeering acts.
The RICO statute defines racketeering activity to include
“any act or threat involving murder, . . . [or] extortion, . . .
which is chargeable under State law and punishable by
imprisonment for more than one year”; and “any offense
involving . . . the felonious manufacture, importation,
receiving, concealment, buying, selling, or otherwise
dealing in a controlled substance . . . , punishable under any
law of the United States.” 18 U.S.C. § 1961(1)(A), (1)(D).
Rodriguez argues that our recent decision in United States v.
Franklin, 904 F.3d 793 (9th Cir. 2018), and the Supreme
Court’s decision in Scheidler v. National Organization for
Women, Inc., 537 U.S. 393 (2003), counsel a narrow
interpretation of the term “involving” that does not extend to
attempts and conspiracies.
We have long adhered to the principle that “[a] series of
conspiracies and failed attempts constitutes a ‘pattern of
racketeering activity’ within the meaning of 18 U.S.C.
§ 1961(5), even if no racketeering offense is completed.”
United States v. Brooklier, 685 F.2d 1208, 1216 (9th Cir.
1982) (per curiam); see also United States v. Fernandez,
388 F.3d 1199, 1259 (9th Cir. 2004), modified, 425 F.3d
1248 (9th Cir. 2005) (“It is a well-established principle of
RICO law that a murder conspiracy can be a predicate
racketeering act under § 1962(c), and that predicate
racketeering acts that are themselves conspiracies may form
the basis for a charge and eventual conviction of conspiracy
under § 1962(d).” (internal citations omitted)).
Accordingly, we have repeatedly upheld RICO convictions
16 UNITED STATES V. RODRIGUEZ
premised on attempts and conspiracies as predicate
racketeering acts. E.g., United States v. Houston, 648 F.3d
806, 810–12 (9th Cir. 2011) (affirming RICO convictions
based on predicate racketeering acts of conspiracy to commit
murder, murder, and attempted murder); United States v.
Scott, 642 F.3d 791, 794, 801 (9th Cir. 2011) (per curiam)
(affirming RICO conviction based on predicate racketeering
acts of conspiracy to commit murder); United States v.
Shryock, 342 F.3d 948, 962–70 (9th Cir. 2003) (affirming
RICO convictions based on predicate racketeering acts of
conspiracy to commit murder, murder, attempted murder,
conspiracy to aid and abet narcotics distribution, and
conspiracy to extort). Moreover, our approach toward
attempts and conspiracies aligns with that of the other
circuits to have addressed the issue. See, e.g., United States
v. Marino, 277 F.3d 11, 28–31 (1st Cir. 2002); United States
v. Warneke, 310 F.3d 542, 546 (7th Cir. 2002), as amended
on denial of reh’g and reh’g en banc (Jan. 10, 2003); United
States v. Pungitore, 910 F.2d 1084, 1134–35 (3d Cir. 1990);
United States v. Manzella, 782 F.2d 533, 537–38 (5th Cir.
1986); United States v. Licavoli, 725 F.2d 1040, 1044–45
(6th Cir. 1984); United States v. Ruggiero, 726 F.2d 913,
918–19 (2d Cir. 1984), abrogated on other grounds by
Salinas v. United States, 522 U.S. 52, 61–63 (1997).
Rodriguez does not present a compelling reason to depart
from the weight of this authority. Rodriguez relies on the
Supreme Court’s statutory interpretation in Scheidler to
support her narrow construction of the RICO statute, but that
case does little to advance her position. In Scheidler, the
Supreme Court assessed whether the petitioners could be
found liable for extortion within the meaning of the Hobbs
Act and/or the RICO statute, where they had interfered with,
disrupted access to, and sometimes fully shut down abortion
clinics run by the respondents. 537 U.S. at 397–98, 404–05.
UNITED STATES V. RODRIGUEZ 17
The Supreme Court held that the petitioners’ actions fell
outside the bounds of extortionate conduct under either
statute, because even though they deprived or sought to
deprive the respondents of their property rights, they did not
obtain or attempt to obtain any property from the
respondents. Id. at 404–10. The Supreme Court explained
that extortion fundamentally requires that property be
obtained from another, and the mere interference with or
deprivation of another’s property (as the petitioners had
done) constituted a different offense entirely. Id. at 404–06.
Contrary to Rodriguez’s contention, Scheidler did not
address the completed-offense/inchoate-crime distinction at
issue here. 7
Rodriguez latches onto Scheidler’s language that “for a
state offense to be an ‘act or threat involving . . . extortion,
. . . which is chargeable under State law,’ as RICO requires,
the conduct must be capable of being generically classified
as extortionate,” id. at 409 (citation omitted), but inchoate
variants of extortion are “extortionate.” What the Supreme
Court carved out from RICO’s ambit was an entirely distinct
offense (coercion), which bore some resemblance to
extortion but lacked one of extortion’s core defining
elements.
Rodriguez next relies on our decision in Franklin, but
again her reliance is misplaced. In Franklin, we evaluated
7
If anything, Scheidler supports the district court’s instructions by
implying that attempted extortion and conspiracy to extort could qualify
as RICO predicates, so long as the underlying conduct satisfies the
fundamental requirements of an extortion offense. See 537 U.S. at 410(explaining that claims of extortion, attempted extortion, and conspiracy
to extort could not sustain a RICO conviction solely “[b]ecause
petitioners did not obtain or attempt to obtain respondents’ property”
(emphasis added)).
18 UNITED STATES V. RODRIGUEZ
the meaning of the term “involving,” as used in the Armed
Career Criminal Act. 904 F.3d at 800–02. We observed that
“‘[i]nvolving’ does not have a single, uniform meaning, but
it usually signifies something narrower than ‘relating to.’”
Id. at 801. We added that, “[s]pecifically, ‘involving’ often
connotes ‘includ[ing] (something) as a necessary part or
result.’” Id. (quoting New Oxford American Dictionary 915
(3d ed. 2010)). We provided an example: “a crime ‘involves
use of explosives’ where it actually constitutes the use of
explosives; a crime somewhat like the use of explosives, or
a crime relating to the use of explosives, does not necessarily
‘involve[ ] use of explosives.’” Id. at 802. Rodriguez
extrapolates from this discussion to argue that conspiracies
and attempts to murder, extort, or traffic drugs cannot be
considered acts “involving” the core offenses, because
“[c]onspiracies and attempts to murder, extort, or deal in
controlled substances do not include murder, extortion, or
dealing in controlled substances ‘as a necessary part or
result.’” But Rodriguez takes the language of Franklin well
beyond its context. Both Franklin and the cases on which it
rests focus on how to assess offenses that have similar but
not coextensive elements. They do not address the wholly
separate relationship between completed offenses and their
inchoate counterparts, and isolated quotes extracted from
one context do not readily transfer to the other.
Franklin further noted, and Rodriguez emphasizes, that
Scheidler taught that “the only crime that ‘involv[es]
extortion’ is generic extortion; the word ‘involving’ does
nothing to broaden the scope of that generic crime.” Id.
at 801. But that proposition, again, does not implicate the
distinction Rodriguez seeks to address. All it dictates is that
the “involving” language does not cast a broader net than
conduct that satisfies the core elements of extortion; while it
UNITED STATES V. RODRIGUEZ 19
precludes a distinct offense like coercion, it does not bar
inchoate variants of extortion.
C. Mid-Trial Instruction
Rodriguez contends that the district court, over her
objection, gave an erroneous mid-trial jury instruction about
the selection of the recordings introduced into evidence by
the prosecution, thereby tilting the scales against her. The
court gave the challenged instruction at the request of the
government, which had argued that defense counsel’s
aggressive objections and cross-examination “improperly
suggested that Officer Gallardo and perhaps other members
of the Santa Ana Gang Task Force intentionally withheld
relevant evidence from the government’s counsel, defense
counsel, and now the jury.”
The court instructed the jury as follows: 8
[Y]ou heard testimony with regard to how the
recorded passages you heard were selected.
You also heard that the government did not
prepare the complete transcripts for some
recordings.
8
Part of the instruction, not excerpted here, dealt with the
government’s ability to engage in stealth and deception, including the
use of jailhouse informants. Rodriguez briefly asserts in a footnote that
this part of the instruction constituted improper “vouching for a
notorious jailhouse informant, without any balancing instruction that
such testimony should be viewed with caution” and therefore “was also
problematic.” This passing reference, without any meaningful
supporting argument, is insufficient to raise this as an issue on appeal.
United States v. Stoterau, 524 F.3d 988, 1003 n.7 (9th Cir. 2008).
20 UNITED STATES V. RODRIGUEZ
Once the government produced a recording,
any party was free to make its own
transcription. An opposing party is free to
request the Court to order additional portions
of a recording be played where necessary to
place the portions played in context or to
avoid any misleading impression resulting
from just the portions played.
Rodriguez contends that the court’s mid-trial instruction
misstated the law, bolstered the government’s case,
undermined the defense, and shifted the burden of proof, by
suggesting that “both parties had equal ability to introduce
recordings” even though she faced hearsay constraints that
the government did not. She asserts that “the instruction
suggested either that defendants had been dilatory in failing
to request recordings be played, or that the court had already
determined the selection of recordings was not, in fact,
misleading”—and that, in either case, the court was
inappropriately vouching for the government. She adds that
it was a wholly permissible defense tactic to challenge the
investigation as biased, and the court was wrong to undercut
that approach.
The district court has “substantial latitude” in
formulating jury instructions, United States v. Hicks,
217 F.3d 1038, 1045 (9th Cir. 2000), as amended on denial
of reh’g (July 31, 2000), and we conclude that the court did
not abuse its wide discretion in giving the curative
instruction. First, the instruction aligned with the substance
of Rule 106 and thus did not constitute legal error. See Fed.
R. Evid. 106 (“If a party introduces all or part of a writing or
recorded statement, an adverse party may require the
introduction, at that time, of any other part—or any other
writing or recorded statement—that in fairness ought to be
UNITED STATES V. RODRIGUEZ 21
considered at the same time.”). Second, informing the jury
that any party could seek to present certain evidence is
distinct from telling the jury a party was required to do so—
and the remaining jury instructions eliminated any possible
doubt as to the burden of proof. The jury was otherwise
instructed that the defense did not need to present any
evidence, and that the government bore the burden of
proving every element of the charges beyond a reasonable
doubt.
The instruction also did not preclude Rodriguez from
arguing that the government’s investigation was biased or
conducted haphazardly. In fact, she repeatedly so argued,
implicitly through cross-examination and explicitly during
closing argument. Unlike the cases Rodriguez cites, the
instruction here did not direct the jury not to consider
potential methodological shortcomings or bias in the
government’s investigation, or to avoid drawing a particular
set of inferences. Indeed, the instruction said nothing about
how the jury should evaluate the evidence before it—except
to remind the jury that, ultimately, “it is for you to determine
the weight to be given any item of evidence.” Therefore, we
find that the district court did not abuse its discretion in
giving its mid-trial instruction. 9
9
As the defense correctly points out, its strategy of attacking the
investigation as biased, including arguing that the agents were biased in
their selection of recordings presented to the jury, is a common one.
Although we find no abuse of discretion here, the mid-trial instruction
was unnecessary and, as formulated, ran the risk of being incomplete or
potentially misleading. While the instruction was consistent with
Federal Rule of Evidence 106, it failed to fully capture the restrictiveness
of the rule of completeness, including the defense’s need to overcome
significant evidentiary hurdles. See, e.g., United States v. Collicott,
92 F.3d 973, 982–83 (9th Cir. 1996) (discussing constraints on seeking
22 UNITED STATES V. RODRIGUEZ
III. Dual Role Opinion Testimony
We now turn to Rodriguez’s challenges to the dual role
opinion testimony offered by two law enforcement witnesses
for the government. Rodriguez contends that the district
court erred both in instructing the jury on such testimony and
in admitting it in the first place.
We review a district court’s admission of expert
testimony or lay opinion testimony for abuse of discretion.
United States v. Gadson, 763 F.3d 1189, 1202, 1209 (9th Cir.
2014). However, we review de novo a district court’s
“construction or interpretation of the Federal Rules of
Evidence.” United States v. Wells, 879 F.3d 900, 914 (9th
Cir. 2018) (citation and ellipsis omitted).
We review de novo whether a jury instruction misstates
the law, although we review the “language and formulation”
of a jury instruction for abuse of discretion. Cortes, 757 F.3d
at 857. Plain error review applies where the defendant failed
to object at the trial level. Murphy, 824 F.3d at 1204.
A. Jury Instructions
Rodriguez contends that the district court did not
properly instruct the jury regarding dual role witnesses. She
argues that the district court failed to distinguish between lay
and expert opinion testimony, lumping all opinion testimony
into a single category. She asserts that the court’s
instructions not only failed to clarify the witnesses’ various
roles for the jury, and the significance of each, but also
the admission of hearsay statements through Rule 106). We thus caution
district courts in the use of jury instructions along the lines of the mid-
trial instruction used in this case.
UNITED STATES V. RODRIGUEZ 23
erroneously “elevated all their opinions to the status of
expert opinions.”
Rodriguez did not object below to the district court’s
dual role instructions, so plain error review applies. 10 The
court’s instructions explained that two government
witnesses, Officers Gonzalo Gallardo and John Feeney, had
been permitted to “testif[y] in a type of dual role: They
testified about facts they saw, heard, or learned as a
percipient witness but also were allowed to express opinions
based on their education, training, and experience.” The
court urged the jury to “pay careful attention as to whether a
witness testified to his personal knowledge as a percipient
witness or testified to an opinion” and explained the caveats
attendant to each role. The court explained that, when
witnesses provided opinion testimony, they might rely on
facts outside their personal knowledge—but such testimony
could not serve as proof of the underlying facts. The court
also admonished the jury that “[t]he fact that these witnesses
were allowed to express those opinions should not cause you
to give those witnesses undue deference to any aspect of
their testimony or otherwise influence your assessment of
the credibility of such witnesses.” The dual role
instructions—including the distinction between fact
testimony, on the one hand, and opinion testimony, on the
other—closely tracked the corresponding Ninth Circuit
model instruction. See Ninth Circuit Manual of Model
10
The only objection voiced by defense counsel was to eliminate
any use of the term “expert” in the court’s provisional instruction and
replace it with the broader label of “opinion witnesses”—which the court
did. Thus, it is defense counsel’s own phrasing of which Rodriguez now
complains.
24 UNITED STATES V. RODRIGUEZ
Criminal Jury Instructions, No. 4.15, Dual Role Testimony
(2019).
We conclude that the jury instructions were not plainly
erroneous. The district court addressed the two main areas
of concern we have identified with respect to dual role
witnesses: (i) that the facts on which an expert opinion is
premised “should not be considered for their truth but only
to assess the strength of his opinions”; and (ii) that the jury
should not give undue deference to the testimony of an
opinion witness, just because he has been permitted to testify
in that capacity. United States v. Vera, 770 F.3d 1232, 1246
(9th Cir. 2014). The court’s decision not to label Gallardo
or Feeney as an “expert” in front of the jury further mitigated
the risk that the jury would attach too much weight to the
officers’ lay testimony based on their dual witness status.
Although we find no plain error in the district court’s
instructions, we emphasize that trial courts should endeavor
to explain clearly the differences between lay percipient
testimony, lay opinion testimony (as governed by Rule 701),
and expert opinion testimony (as governed by Rule 702) in
settings where all three arise. In many cases, designating an
umbrella category of “opinion testimony” may fail to
provide an appropriate level of nuance to guide the jury’s
evaluation of dual role testimony.
B. Admission of Opinion Testimony of Officers Gallardo
and Feeney
Rodriguez also argues that the district court erred in
admitting the testimony of Officers Gallardo and Feeney, to
the extent they testified about the meaning of the intercepted
UNITED STATES V. RODRIGUEZ 25
phone calls played at trial. 11 Rodriguez contends that the
court erroneously admitted the officers’ opinions as expert
testimony, although they testified to terms without fixed
meanings and without a reliable methodology of
interpretation. Rodriguez further contends that the
testimony would not be admissible as lay opinion testimony
either—and that its admission “infected the entire trial” and
prejudiced her defense.
We agree with Rodriguez that the district court erred in
admitting some of the opinions of Gallardo and Feeney as
expert testimony. The district court appeared to
misapprehend the parameters of expert testimony in the gang
expert context, assuming that the officers’ general
qualifications sufficed to support the full range of opinion
testimony they might give. But as we have explained, to
provide interpretive testimony concerning terms or phrases
without fixed meanings, “an officer’s qualifications,
including his experience with [gang] investigations and
intercepted communications, are relevant but not alone
sufficient to satisfy Federal Rule of Evidence 702.” Vera,
770 F.3d at 1241. “Rather, Rule 702 requires district courts
to assure that an expert’s methods for interpreting the new
terminology are both reliable and adequately explained.” Id.
Of course, some of the testimony offered by Gallardo
and Feeney indeed passes muster under Rule 702. The
officers’ appropriate expert testimony included their
opinions about the structure and operation of the OCMM, as
well as their opinions concerning the meanings of terms with
fixed meanings like “taxes,” “green lights,” or “hard candy
11
Rodriguez does not challenge “the portions of the witnesses’
testimony relating to the Mexican Mafia’s organization, structure,
methods of operations, roles, and members.”
26 UNITED STATES V. RODRIGUEZ
lists.” See id. (“Officers may testify about their
interpretations of ‘commonly used . . . jargon’ based solely
on their training and experience.” (citation omitted)); United
States v. Hankey, 203 F.3d 1160, 1167–70 (9th Cir. 2000)
(permitting police gang expert testimony where the officer
had acquired relevant expertise through “street
intelligence”).
But when the officers began to opine about uncommon
terms or phrases that they encountered for the first time in
this investigation, the basis for their expert testimony in
numerous instances grew thin. And when this occurred, the
officers generally did not offer an explanation for how they
arrived at their interpretations, nor did the court require them
to provide one. At times when the officers did provide an
explanation, some of those explanations failed to evince
indicia of reliability or methodological rigor.
The district court uniformly treated all the officers’
interpretive testimony as expert opinion, irrespective of the
specific foundation for any individual interpretive statement.
In so doing, the court misapplied the Rules of Evidence to
the testimony before it.
As the government argues, some of the proffered expert
testimony was appropriate for admission as lay opinion
testimony based on the officers’ firsthand experience with
the investigation. But because the district court did not view
any of the officers’ interpretive testimony as lay opinion
testimony, it did not require the officers to establish the
requisite foundation for each such opinion. See Vera,
770 F.3d at 1243 (“[L]aw enforcement officers may offer lay
and expert opinions about the meaning of intercepted phone
calls, but the foundation laid for those opinions must satisfy
Rules 701 and 702, respectively.”). Therefore, while
Gallardo and Feeney established the requisite personal
UNITED STATES V. RODRIGUEZ 27
knowledge to support some of their lay opinions, they failed
to do so in numerous instances, and those portions of their
testimony were erroneously admitted.
We note that the district court’s struggle to be a “vigilant
gatekeep[er]” of the line between the two roles, United
States v. Freeman, 498 F.3d 893, 904 (9th Cir. 2007), was
compounded by its failure to bifurcate or otherwise clearly
mark the distinctions in the officers’ testimony as lay and
expert witnesses. District courts should be cognizant of the
“dangers” and confusion associated with allowing officers to
give both lay and expert opinion testimony. United States v.
Torralba-Mendia, 784 F.3d 652, 658 (9th Cir. 2015); Vera,
770 F.3d at 1242; United States v. Anchrum, 590 F.3d 795,
803 (9th Cir. 2009); Freeman, 498 F.3d at 903–04. To
ameliorate this concern, we encourage district courts to
“clearly separate the case agent’s testimony between lay
observations and expert testimony.” Torralba-Mendia, 784
F.3d at 658; see also United States v. Martinez, 657 F.3d
811, 817 (9th Cir. 2011) (“The government was nearly
always exact in specifying when it was asking for [the
agent’s] testimony as an expert.”); Anchrum, 590 F.3d at803–04 (explaining with approval how the district court
“clearly separated” the case agent’s testimony into different
phases for lay and expert opinion to avoid the risks identified
in Freeman). Careful separation of this testimony “avoid[s]
blurring the distinction between [an agent’s] distinct role as
a lay witness and his role as an expert witness,” as happened
in this trial. Anchrum, 590 F.3d at 804; Freeman, 498 F.3d
at 904. And clear demarcation of when officers are
testifying in their lay or expert roles makes it easier to
determine whether and how that testimony is supported by
the proper foundation.
28 UNITED STATES V. RODRIGUEZ
We next ask whether the erroneously admitted testimony
was harmless. Wells, 879 F.3d at 923. Although we “begin
with a presumption of prejudice[,] ‘[t]hat presumption can
be rebutted by a showing that it is more probable than not
that the jury would have reached the same verdict even if the
evidence had [not] been admitted.’” Jules Jordan Video, Inc.
v. 144942 Can. Inc., 617 F.3d 1146, 1159 (9th Cir. 2010)
(quoting Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir.
2005)).
Upon consideration of the totality of the record, we find
that the erroneously admitted testimony was harmless. The
majority of the officers’ testimony did pass muster under the
Rules of Evidence. And three cooperating witnesses
separately implicated Rodriguez in the conspiracies for
which she was convicted—including particularly extensive
testimony by cooperator Glenn Navarro. The phone calls
themselves were admitted into evidence as well, amenable
to interpretation through a combination of the admissible
portions of Gallardo’s and Feeney’s testimony and the
context provided by the percipient witnesses at trial. Cf.
Torralba-Mendia, 784 F.3d at 662 (finding that the district
court’s error in failing to instruct the jury on how to evaluate
gang expert’s dual role testimony did not require reversal in
part because evidence on which the expert based his
testimony was provided to the jury, such that “the jury had
the information it needed to evaluate [the expert’s]
opinions”). And the government’s case was bolstered by the
documentary evidence admitted at trial, including a series of
prison correspondences and Mexican Mafia ledgers that
further implicated Rodriguez. In the context of the full trial,
the inadmissible evidence played a small role. We thus
conclude that it is more probable than not that, without the
erroneously admitted testimony, the jury would have
reached the same verdict.
UNITED STATES V. RODRIGUEZ 29
IV. Witness Exclusion
Finally, we address Rodriguez’s argument that the
district court improperly excluded a key defense witness,
Teresa Cantu, who is Rodriguez’s sister. She contends that
Cantu’s testimony was relevant to her mental state and her
defense that she participated in the recorded conversations
not because she was a “Mexican Mafia secretary,” but
because she “never turned her back on anyone.”
Below, Rodriguez proffered that Cantu would testify to
the sisters’ upbringing in a volatile home, Rodriguez’s
tendency to act as a “rescuer” and a “fixer,” and Rodriguez’s
resolve not to let down or abandon anyone. Cantu would
also testify to Rodriguez’s longstanding abusive relationship
with her ex-husband Tommy, and Cantu’s “belie[f] that
[Rodriguez] put protecting Freddy, [her] son, above all else.”
The government objected to Cantu’s testimony as
relevant only to “a pure jury nullification defense” and an
“appeal to the sympathies of the jury.” In reference to
Rodriguez’s abusive relationship, the government added that
Rodriguez had not properly noticed a duress defense—thus
barring her from seeking to do so at trial. Rodriguez
responded that Cantu’s testimony was relevant to her state
of mind, and that her state of mind was material to the
specific intent crimes of which she was accused. She further
argued that Cantu’s testimony “goes to the voluntariness” of
her statements and actions, amidst Tommy’s threats and
persistent abuse.
Reviewing the district court’s exclusionary ruling for
abuse of discretion, United States v. Haischer, 780 F.3d
1277, 1281 (9th Cir. 2015), we affirm. Most of Cantu’s
expected testimony had little connection to the issues in
dispute, and the district court reasonably concluded that
30 UNITED STATES V. RODRIGUEZ
Cantu’s testimony would unduly target the sympathies of the
jury. For example, Rodriguez’s tumultuous childhood
would paint her as a more sympathetic defendant, but it had
little to do with her guilt or innocence of the charges.
Although the district court did not cite a specific evidentiary
rule, it is clear from the record that the court undertook a
Rule 403 balancing analysis and concluded that the
probative value of Cantu’s proffered testimony was
substantially outweighed by the danger of unfair prejudice.
That conclusion was a reasonable one.
The district court also did not err in concluding that at
least some of Cantu’s testimony went to an unpreserved
duress defense. 12 Cantu would testify that Tommy (a
principal conspirator) repeatedly threatened Rodriguez with
violence, and that Rodriguez “lived in fear of Tommy.” To
the extent Rodriguez argued this testimony “goes to the
voluntariness” of her conduct, the court correctly determined
that Rodriguez was putting on a duress defense in all but
name.
However, Rodriguez is also correct that evidence
negating the mental state required for a specific intent crime
is not coextensive with an affirmative defense of duress. See
Haischer, 780 F.3d at 1283 (“Duress and the absence of the
required mens rea are not the same thing.”). Without relying
on a duress defense, Rodriguez could argue that she acted
out of a desire to protect herself and her family, out of fear
from Tommy, or simply because she would never leave
anyone behind, rather than with the requisite mens rea. That
said, the Cantu proffer was extremely weak to the extent it
spoke to any issues beyond duress. Cantu could provide
12
Rodriguez does not dispute that she failed to preserve a duress
defense.
UNITED STATES V. RODRIGUEZ 31
only general background on Rodriguez, and Rodriguez’s
claimed motives were not inconsistent with knowingly
conspiring to racketeer, or acting with the purpose of
maintaining or increasing her position in the OCMM. Even
if Rodriguez became involved with the organization with an
eye toward protecting herself and her family, or out of an
impulse to “rescue” others, that would not exonerate her.
We view the district court’s rulings regarding duress and
Rule 403 as intertwined, and we find that the court
reasonably concluded that the only proffered testimony with
meaningful probative value went to duress—and that all
other testimony in the proffer carried minimal probative
force, substantially outweighed by the risk of unfair
prejudice. Therefore, we conclude that the district court did
not err in excluding Cantu’s testimony.
Based on our foregoing assessment of Rodriguez’s
claimed errors, and the totality of the evidence presented at
trial, we likewise find that cumulative error does not provide
a basis for reversal of Rodriguez’s convictions.
AFFIRMED.