NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10371
Plaintiff-Appellee, D.C. No. 1:18-CR-00207-DAD- v. SKO-7
LORENZO AMADOR, MEMORANDUM Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding
Argued and Submitted June 7, 2023 San Francisco, California
Before: MILLER and KOH, Circuit Judges, and MOLLOY,** District Judge. Concurrence by Judge KOH.
Following a jury trial, Lorenzo Amador was convicted of assault with a
dangerous weapon in aid of racketeering and drug conspiracy based on his
activities as part of the MS-13 gang in Mendota, California. He alleges error
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. 1 related to the admission of a booking statement confirming his gang moniker
(“Catracho”) and in the jury instruction regarding the membership purpose
requirement of the Violent Crimes in Aid of Racketeering Act, 18 U.S.C. §§ 1959,
et seq. (“VICAR”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. We review “a denial of a motion to suppress and whether a defendant is
constitutionally entitled to Miranda warnings de novo.” United States v.
Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008); see Miranda v. Arizona, 384 U.S.
436 (1966). Assuming without deciding that Amador’s acknowledgement of his
gang moniker1 should have been excluded from the government’s case-in-chief,
see United States v. Williams, 842 F.3d 1143, 1148–50 (9th Cir. 2016), the district
court’s failure to do so was harmless beyond a reasonable doubt, see United States
v. Gonzalez-Sandoval, 894 F.2d 1043, 1047 (9th Cir. 1990). The trial evidence
showed that Amador had two cellphones and two Facebook accounts, all four of
which were linked to Amador himself through subscriber information, messages,
or photographs. In turn, messages and references on these accounts showed that he
represented himself to other individuals as “Catracho.” It is therefore “clear
beyond a reasonable doubt that the jury would have returned a verdict of guilty”
even if the unconstitutionally obtained statement had been excluded. United States
1 Amador’s request to add the “Inmate Classification Questionnaire” to the record is construed as a motion to supplement and granted. Dkt. 9; see Fed. R. App. P. 10(e)(2)(C). 2 v. Velarde-Gomez, 269 F.3d 1023, 1034 (9th Cir. 2001) (en banc) (internal
quotation marks omitted).
2. We “review de novo whether a jury instruction correctly states the law.”
United States v. Renzi, 769 F.3d 731, 755 (9th Cir. 2014). As recognized by
Amador, the government need not prove under VICAR that Amador’s membership
purpose—gaining entrance to, or maintaining or increasing his position in, the MS-
13—was the “but-for” cause of his conduct. United States v. Rodriguez, 971 F.3d
1005, 1010–11 (9th Cir. 2020). Rather, as instructed by the district court, his
membership purpose need only be “a substantial purpose.” Id. at 1010 (quoting
United States v. Banks, 514 F.3d 959, 969 (9th Cir. 2008)).
AFFIRMED.
3 United States v. Amador, 21-10371 FILED KOH, Circuit Judge, concurring: JUL 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Although I agree with the majority’s conclusion that the violation was
harmless beyond a reasonable doubt on the facts of this case, I write separately to
express my view that asking Lorenzo Amador—who was detained on gang
charges—for his “gang moniker” constituted custodial interrogation. Therefore,
the prosecution’s use of Amador’s un-Mirandized answer to that question in its
case-in-chief violated Amador’s rights under Miranda v. Arizona, 384 U.S. 436
(1966).
“[T]he ultimate test for whether questioning constitutes interrogation is
whether, in light of all the circumstances, the police should have known that a
question was reasonably likely to elicit an incriminating response.” United States
v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981). In United States v. Williams, the
Ninth Circuit found that questions about gang affiliation, even if asked for routine
inmate classification purposes, are reasonably likely to elicit incriminating
information “when murder is the charge.” 842 F.3d 1143, 1148–49 (9th Cir.
2016). The court reached that conclusion based on the connections between
murder and gang membership and the additional liability and enhanced penalties
faced by people arrested for violent crimes when gang membership is involved. Id.
at 1147–49. Here, the incriminating nature of gang-related questions was even starker than in Williams, because unlike in that case, Amador was—as was stated
front and center on the questionnaire with the gang-related questions, including the
moniker question—arrested on gang charges.
The government nevertheless contends that because this case involves a
gang moniker question and not a gang affiliation question, this court’s earlier
decision in United States v. Washington controls. 462 F.3d 1124 (9th Cir. 2006).
Washington, like this case, involved a gang moniker question asked for inmate
classification purposes. In that case, however, the defendant argued that the
question was incriminating because it “was designed to elicit proof that, when [a]
confidential informant stated that ‘Rock’ was involved with the bank robbery, the
informant was talking about Washington.” Id. at 1133. The court found this
argument an unwarranted extension of what it means for a question to elicit an
incriminating response, for it would mean that “any time an informant uses a
particular name to identify the person who committed a crime, it would be
impermissible interrogation for the police to ask the suspect his name because
confirming his identity would be ‘incriminating.’” Id.
The argument Amador raises, however, is one Washington (which did not
involve gang-related crimes) did not address. Amador argues that given the nature
of the gang charges against him, the gang-related nature of the question made it
reasonably likely to elicit an incriminating response.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10371
Plaintiff-Appellee, D.C. No. 1:18-CR-00207-DAD- v. SKO-7
LORENZO AMADOR, MEMORANDUM Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding
Argued and Submitted June 7, 2023 San Francisco, California
Before: MILLER and KOH, Circuit Judges, and MOLLOY,** District Judge. Concurrence by Judge KOH.
Following a jury trial, Lorenzo Amador was convicted of assault with a
dangerous weapon in aid of racketeering and drug conspiracy based on his
activities as part of the MS-13 gang in Mendota, California. He alleges error
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. 1 related to the admission of a booking statement confirming his gang moniker
(“Catracho”) and in the jury instruction regarding the membership purpose
requirement of the Violent Crimes in Aid of Racketeering Act, 18 U.S.C. §§ 1959,
et seq. (“VICAR”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. We review “a denial of a motion to suppress and whether a defendant is
constitutionally entitled to Miranda warnings de novo.” United States v.
Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008); see Miranda v. Arizona, 384 U.S.
436 (1966). Assuming without deciding that Amador’s acknowledgement of his
gang moniker1 should have been excluded from the government’s case-in-chief,
see United States v. Williams, 842 F.3d 1143, 1148–50 (9th Cir. 2016), the district
court’s failure to do so was harmless beyond a reasonable doubt, see United States
v. Gonzalez-Sandoval, 894 F.2d 1043, 1047 (9th Cir. 1990). The trial evidence
showed that Amador had two cellphones and two Facebook accounts, all four of
which were linked to Amador himself through subscriber information, messages,
or photographs. In turn, messages and references on these accounts showed that he
represented himself to other individuals as “Catracho.” It is therefore “clear
beyond a reasonable doubt that the jury would have returned a verdict of guilty”
even if the unconstitutionally obtained statement had been excluded. United States
1 Amador’s request to add the “Inmate Classification Questionnaire” to the record is construed as a motion to supplement and granted. Dkt. 9; see Fed. R. App. P. 10(e)(2)(C). 2 v. Velarde-Gomez, 269 F.3d 1023, 1034 (9th Cir. 2001) (en banc) (internal
quotation marks omitted).
2. We “review de novo whether a jury instruction correctly states the law.”
United States v. Renzi, 769 F.3d 731, 755 (9th Cir. 2014). As recognized by
Amador, the government need not prove under VICAR that Amador’s membership
purpose—gaining entrance to, or maintaining or increasing his position in, the MS-
13—was the “but-for” cause of his conduct. United States v. Rodriguez, 971 F.3d
1005, 1010–11 (9th Cir. 2020). Rather, as instructed by the district court, his
membership purpose need only be “a substantial purpose.” Id. at 1010 (quoting
United States v. Banks, 514 F.3d 959, 969 (9th Cir. 2008)).
AFFIRMED.
3 United States v. Amador, 21-10371 FILED KOH, Circuit Judge, concurring: JUL 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Although I agree with the majority’s conclusion that the violation was
harmless beyond a reasonable doubt on the facts of this case, I write separately to
express my view that asking Lorenzo Amador—who was detained on gang
charges—for his “gang moniker” constituted custodial interrogation. Therefore,
the prosecution’s use of Amador’s un-Mirandized answer to that question in its
case-in-chief violated Amador’s rights under Miranda v. Arizona, 384 U.S. 436
(1966).
“[T]he ultimate test for whether questioning constitutes interrogation is
whether, in light of all the circumstances, the police should have known that a
question was reasonably likely to elicit an incriminating response.” United States
v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981). In United States v. Williams, the
Ninth Circuit found that questions about gang affiliation, even if asked for routine
inmate classification purposes, are reasonably likely to elicit incriminating
information “when murder is the charge.” 842 F.3d 1143, 1148–49 (9th Cir.
2016). The court reached that conclusion based on the connections between
murder and gang membership and the additional liability and enhanced penalties
faced by people arrested for violent crimes when gang membership is involved. Id.
at 1147–49. Here, the incriminating nature of gang-related questions was even starker than in Williams, because unlike in that case, Amador was—as was stated
front and center on the questionnaire with the gang-related questions, including the
moniker question—arrested on gang charges.
The government nevertheless contends that because this case involves a
gang moniker question and not a gang affiliation question, this court’s earlier
decision in United States v. Washington controls. 462 F.3d 1124 (9th Cir. 2006).
Washington, like this case, involved a gang moniker question asked for inmate
classification purposes. In that case, however, the defendant argued that the
question was incriminating because it “was designed to elicit proof that, when [a]
confidential informant stated that ‘Rock’ was involved with the bank robbery, the
informant was talking about Washington.” Id. at 1133. The court found this
argument an unwarranted extension of what it means for a question to elicit an
incriminating response, for it would mean that “any time an informant uses a
particular name to identify the person who committed a crime, it would be
impermissible interrogation for the police to ask the suspect his name because
confirming his identity would be ‘incriminating.’” Id.
The argument Amador raises, however, is one Washington (which did not
involve gang-related crimes) did not address. Amador argues that given the nature
of the gang charges against him, the gang-related nature of the question made it
reasonably likely to elicit an incriminating response. As Williams and other cases
2 recognize, “[t]he relationship of the question asked to the crime suspected is highly
relevant.” United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983).
Washington—and, for that matter, Williams’s discussion of Washington—does not
approve any name-related question as falling within the routine booking exception.
As ever, the inquiry depends on “all the circumstances,” so a question that was not
incriminating in one case may be incriminating in another. Williams, 842 F.3d at
1147 (quoting Booth, 669 F.2d at 1238); see also United States v. Henley, 984 F.2d
1040, 1042 (9th Cir. 1993) (“[W]hile there is usually nothing objectionable about
asking a detainee his place of birth, the same question assumes a completely
different character when an INS agent asks it of a person he suspects is an illegal
alien.”).
In a gang case, gang-related questions about a suspect’s gang moniker are
interrogation just as gang-related questions about his gang affiliation are. The
government contends that the gang moniker question requires the police to
“connect the dots” for the information to be incriminating in a way the gang
affiliation question does not. But those dots are not hard to connect, especially
where, as here, the question is asked in a series of questions probing the detainee’s
gang membership. A reasonable officer understands that an individual who gives a
name in response to a question asking for his gang moniker has just acknowledged
affiliation with a gang. In a case where gang membership is at issue, that response
3 is incriminating. Therefore, I would hold that the introduction of Amador’s
statement in the government’s case-in-chief violated Amador’s Miranda rights.