8/20/20: Another big day in the Ninth Circuit - VICAR/RICO and 404(b)

Today brings seven published opinions, with three criminal cases. 

First, in United States v. Rodriguez, --- F.3d ---, No. 16-50213 (9th Cir. 2020), the Court affirmed the 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). 

The case covers lots of ground (especially as to jury instructions) and is a must read for anyone defending a VICAR or RICO case.  Here are some key points. 

• "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, aRodriguez 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 lesser “substantial purpose” standard. We hold that the district court properly instructed the jury on the elements of a VICAR conspiracy."

• As to sufficiency, "[t]o 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.'"

• As to RICO instructions, "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 requirement that the government need only prove her “knowledge” or “contemplation” that a participant would commit racketeering acts."

• "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 when the jury instructions are considered 'as a whole, and in context.'"

• On the issue of dual role opinion testimony, "[a]lthough 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."

• "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.'  'Rather, Rule 702 requires district courts to assure that an expert’s methods for interpreting the new terminology are both reliable and adequately explained.'"

• We note that the district court’s struggle to be a “vigilant gatekeep[er]” of the line between the two roles, 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."

• To ameliorate this concern, we encourage district courts to 'clearly separate the case agent’s testimony between lay observations and expert testimony.' 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. 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.

• But "[u]pon consideration of the totality of the record, we find that the erroneously admitted testimony was harmless."

Next, in United States v. Berckmann, --- F.3d ---, No. 18-10466 (9th Cir. 2020), the Court affirmed the defendant’s convictions for assaulting his wife with a dangerous weapon and assault of a spouse by strangulation, both of which occurred on federal land. 

This is a Rule 404(b) case.  The district court admitted evidence of the defendant's prior acts of violence against his wife.  On appeal, the Court found no error. 

• "Other acts of domestic violence involving the same victim are textbook examples of evidence admissible under Rule 404(b), and courts have permitted this evidence under a variety of theories. Some have explained that additional assaults are admissible as a 'critical part of the story' that clarifies the motive behind the charged crimes.Other courts have allowed this evidence to illustrate the 'history of [the] relationship' between the defendant and victim, which speaks to a defendant’s intent. These cases say essentially the same thing—prior (and subsequent) acts of violence towards the identical victim can shed light on the mindset of the defendant during the charged crime, such as whether there was a grudge between the two, a desire for payback of some sort, or that the defendant had the intent to exert control over this particular victim through violence."

Finally, in United States v. Lague, --- F.3d ---, No. 18-10500 (9th Cir. 2020), the Court affirmed a physician’s assistant’s conviction for distributing controlled substances outside the usual course of professional practice and without a legitimate medical purpose to five of his former patients, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(c), and (b)(2).

This is another Rule 404(b) case.  The district court admitted evidence of the defendant's practice-wide prescriptions (rather than just the charged prescriptions). 

On appeal, the defendant argued, "the district court erred, under Federal Rule of Evidence 404(b), by granting the government’s motion in limine to present data of his practice-wide prescriptions. He contends that these uncharged prescriptions do not support an inference that he intended to write the charged prescriptions outside the usual course of professional practice and without a legitimate medical purpose."

The Ninth Circuit disagreed. "We apply a four-part test to determine whether 'other act' evidence is admissible. A district court may admit other act evidence if: (1) the evidence tends to prove a material point; (2) the other act is not too remote in time; (3) the evidence is sufficient to support a finding that defendant committed the other act; and (4) (in certain cases) the act is similar to the offense charged."

The Court found the test was met: "we hold that uncharged prescriptions of controlled substances in enormous quantities, and in dangerous combinations, support a reasonable inference that the underlying prescriptions were issued outside the usual course of professional practice and without a legitimate medical purpose. Lague’s practice-wide evidence was therefore probative of his unlawful intent, undermining his defense at trial that the charged prescriptions amounted to 'a few bad judgments.' Because the prescription data made the intent element of the section 841 charges more probable, the district court properly admitted Lague’s uncharged prescriptions under Rule 404(b)."

Further, "[e]ven if we assume that the district court abused its discretion, under Rule 403, by failing to preview all of the underlying prescription data admitted at trial, the result would be the same. The patient-specific evidence overwhelmingly pointed to Lague’s guilt, and thus, any Rule 403 error would be harmless."

One helpful point: The government also argued "that the prescription data was admissible because it was intrinsic to the charged conduct."  The Court rejected this argument: "The intrinsic evidence exception to Rule 404(b) does not apply here. The uncharged prescriptions are not part of the section 841 charges, nor are they necessary for the government to offer a coherent narrative of Lague’s crimes."