NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 28 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-613 D.C. No. Plaintiff - Appellee, 3:17-cr-00093-WHA-5 v. MEMORANDUM* BURTE GUCCI RHODES, AKA Moeshawn,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding
Argued and Submitted March 7, 2025 San Francisco, California
Before: WARDLAW, PAEZ, and BEA, Circuit Judges.
Burte Gucci Rhodes appeals his conviction and sentence of mandatory life
imprisonment for murder-for-hire in violation of 18 U.S.C. § 1958, and his
conviction of conspiracy to commit murder-for-hire in violation of 18 U.S.C. §
371. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. Rhodes first argues that the government improperly vouched for the
FBI’s investigation, and thereby deprived him of his right to due process. We
disagree. Because Rhodes did not object at trial, we review for plain error. We
may reverse only if: “(1) there was error; (2) it was plain; (3) it affected the
defendant’s substantial rights; and (4) viewed in the context of the entire trial, the
impropriety seriously affected the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Alcantara-Castillo, 788 F.3d 1186, 1190–
91 (9th Cir. 2015) (internal quotation marks omitted). Improper vouching typically
occurs when “the prosecutor places the prestige of the government behind a
witness by expressing his or her personal belief in the veracity of the witness,” or
when “the prosecutor indicates that information not presented to the jury supports
the witness’s testimony.” United States v. Hermanek, 289 F.3d 1076, 1098 (9th
Cir. 2002).
Here, in its closing argument, the government argued that “the FBI did an
extraordinary job of investigating” the case, and that “[t]he FBI [had] done a
thorough investigation of this murder.” Even though defense counsel did not
object, the district court cautioned the government, noting that the prosecutor’s
statements constituted “vouching for the FBI’s investigation.” These statements
constitute improper vouching because the government “implie[d] that the
prosecutor has extra-record knowledge of” the reliability of the FBI’s
2 23-613 investigation. United States v. Necoechea, 986 F.2d 1273, 1278 (9th Cir. 1993).
By so doing, the government attempted to displace the jury’s role of evaluating
credibility and “ignored [its] special obligation to avoid improper suggestions and
insinuations.” United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992).
Assuming that the government’s vouching constitutes plain error, Rhodes
nevertheless cannot demonstrate that the error affected his substantial rights or
seriously affected the fairness and integrity of the judicial proceeding. See United
States v. Sanchez-Lopez, 879 F.2d 541, 551–53 (9th Cir. 1989). Rhodes fails to
demonstrate that in the absence of the vouching “there is a reasonable probability
that a jury would have acquitted him.” Greer v. United States, 593 U.S. 503, 510
(2021). At trial, Craig Marshall, a member of the criminal enterprise, described
how Mario Robinson and Rhodes planned that Rhodes would murder Trince
Thibodeaux in exchange for $5,000. Additionally, Marshall testified that he
witnessed the murder and identified Rhodes as the shooter. There were dozens of
texts and calls between Rhodes and Robinson leading up to Thibodeaux’s murder,
which abruptly fell off following the murder. After the murder, Rhodes received
nearly $5,000 from Robinson and Robinson’s associates. In defense, Rhodes
argued that “Craig Marshall, the Government’s star witness, the one witness which
you must completely believe in order to convict” “was cooperating to save his neck
and . . . [had] every reason to lie.” Given the strength of the evidence against
3 23-613 Rhodes, any error did not affect Rhodes’s substantial rights; nor did it seriously
call into question the integrity of the judicial proceedings.
2. Reviewing de novo, the district court correctly instructed the jury that
a conviction under 18 U.S.C. § 1958 “require[s] that at the time of the use of the
interstate commerce facility, the accused had an intention to further a murder-for-
hire scheme.” See United States v. Driggers, 559 F.3d 1021, 1023 (9th Cir. 2009).
The government presented evidence of Rhodes’s use of interstate facilities both
before and after Thibodeaux’s murder—Rhodes’s calls and texts with Robinson
leading up to as well as following the murder and wire transfer payments to
Rhodes after Thibodeaux’s death. Therefore, even if the district court erred by
stating that “[t]here is no requirement that the use of the interstate commerce
facility happened before the murder,” the error would be harmless because the
government presented evidence of the use of interstate facilities before Thibodeaux
was murdered.
3. The district court did not err in its response to the jury’s question
during their deliberations. The jury asked, “Does the defendant have to had pull
[sic] the trigger to be found guilty of murder for hire?” The district court
responded, “Now, the answer to your question is: No. Under the law, all persons
involved in a murder for hire scheme are guilty so long as all of those elements, the
four elements, are proven beyond a reasonable doubt as to that person.” Even
4 23-613 given that the government’s theory at trial was that Rhodes was the triggerman, the
district court’s instruction included “a thorough statement of the law, the accuracy
of which has not been challenged,” and the language did not “direct[] the verdict,
constitute[] judicial fact-finding, nor exceed[] the scope of the question.” United
States v. Verduzco, 373 F.3d 1022, 1031–32 (9th Cir. 2004). Moreover, the court
reminded the jury of its role to consider “all the facts in evidence in the case.” See
id. at 1031.
4. The evidence was sufficient to sustain Rhodes’s murder-for-hire
conviction. We “consider the evidence presented at trial in the light most
favorable to the prosecution” and determine whether “any rational trier of fact
[could find] the essential elements of the crime beyond a reasonable doubt.”
United States v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 28 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-613 D.C. No. Plaintiff - Appellee, 3:17-cr-00093-WHA-5 v. MEMORANDUM* BURTE GUCCI RHODES, AKA Moeshawn,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding
Argued and Submitted March 7, 2025 San Francisco, California
Before: WARDLAW, PAEZ, and BEA, Circuit Judges.
Burte Gucci Rhodes appeals his conviction and sentence of mandatory life
imprisonment for murder-for-hire in violation of 18 U.S.C. § 1958, and his
conviction of conspiracy to commit murder-for-hire in violation of 18 U.S.C. §
371. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. Rhodes first argues that the government improperly vouched for the
FBI’s investigation, and thereby deprived him of his right to due process. We
disagree. Because Rhodes did not object at trial, we review for plain error. We
may reverse only if: “(1) there was error; (2) it was plain; (3) it affected the
defendant’s substantial rights; and (4) viewed in the context of the entire trial, the
impropriety seriously affected the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Alcantara-Castillo, 788 F.3d 1186, 1190–
91 (9th Cir. 2015) (internal quotation marks omitted). Improper vouching typically
occurs when “the prosecutor places the prestige of the government behind a
witness by expressing his or her personal belief in the veracity of the witness,” or
when “the prosecutor indicates that information not presented to the jury supports
the witness’s testimony.” United States v. Hermanek, 289 F.3d 1076, 1098 (9th
Cir. 2002).
Here, in its closing argument, the government argued that “the FBI did an
extraordinary job of investigating” the case, and that “[t]he FBI [had] done a
thorough investigation of this murder.” Even though defense counsel did not
object, the district court cautioned the government, noting that the prosecutor’s
statements constituted “vouching for the FBI’s investigation.” These statements
constitute improper vouching because the government “implie[d] that the
prosecutor has extra-record knowledge of” the reliability of the FBI’s
2 23-613 investigation. United States v. Necoechea, 986 F.2d 1273, 1278 (9th Cir. 1993).
By so doing, the government attempted to displace the jury’s role of evaluating
credibility and “ignored [its] special obligation to avoid improper suggestions and
insinuations.” United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992).
Assuming that the government’s vouching constitutes plain error, Rhodes
nevertheless cannot demonstrate that the error affected his substantial rights or
seriously affected the fairness and integrity of the judicial proceeding. See United
States v. Sanchez-Lopez, 879 F.2d 541, 551–53 (9th Cir. 1989). Rhodes fails to
demonstrate that in the absence of the vouching “there is a reasonable probability
that a jury would have acquitted him.” Greer v. United States, 593 U.S. 503, 510
(2021). At trial, Craig Marshall, a member of the criminal enterprise, described
how Mario Robinson and Rhodes planned that Rhodes would murder Trince
Thibodeaux in exchange for $5,000. Additionally, Marshall testified that he
witnessed the murder and identified Rhodes as the shooter. There were dozens of
texts and calls between Rhodes and Robinson leading up to Thibodeaux’s murder,
which abruptly fell off following the murder. After the murder, Rhodes received
nearly $5,000 from Robinson and Robinson’s associates. In defense, Rhodes
argued that “Craig Marshall, the Government’s star witness, the one witness which
you must completely believe in order to convict” “was cooperating to save his neck
and . . . [had] every reason to lie.” Given the strength of the evidence against
3 23-613 Rhodes, any error did not affect Rhodes’s substantial rights; nor did it seriously
call into question the integrity of the judicial proceedings.
2. Reviewing de novo, the district court correctly instructed the jury that
a conviction under 18 U.S.C. § 1958 “require[s] that at the time of the use of the
interstate commerce facility, the accused had an intention to further a murder-for-
hire scheme.” See United States v. Driggers, 559 F.3d 1021, 1023 (9th Cir. 2009).
The government presented evidence of Rhodes’s use of interstate facilities both
before and after Thibodeaux’s murder—Rhodes’s calls and texts with Robinson
leading up to as well as following the murder and wire transfer payments to
Rhodes after Thibodeaux’s death. Therefore, even if the district court erred by
stating that “[t]here is no requirement that the use of the interstate commerce
facility happened before the murder,” the error would be harmless because the
government presented evidence of the use of interstate facilities before Thibodeaux
was murdered.
3. The district court did not err in its response to the jury’s question
during their deliberations. The jury asked, “Does the defendant have to had pull
[sic] the trigger to be found guilty of murder for hire?” The district court
responded, “Now, the answer to your question is: No. Under the law, all persons
involved in a murder for hire scheme are guilty so long as all of those elements, the
four elements, are proven beyond a reasonable doubt as to that person.” Even
4 23-613 given that the government’s theory at trial was that Rhodes was the triggerman, the
district court’s instruction included “a thorough statement of the law, the accuracy
of which has not been challenged,” and the language did not “direct[] the verdict,
constitute[] judicial fact-finding, nor exceed[] the scope of the question.” United
States v. Verduzco, 373 F.3d 1022, 1031–32 (9th Cir. 2004). Moreover, the court
reminded the jury of its role to consider “all the facts in evidence in the case.” See
id. at 1031.
4. The evidence was sufficient to sustain Rhodes’s murder-for-hire
conviction. We “consider the evidence presented at trial in the light most
favorable to the prosecution” and determine whether “any rational trier of fact
[could find] the essential elements of the crime beyond a reasonable doubt.”
United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original) (internal quotations
omitted).
Here, even without the substance of the communications between Robinson
and Rhodes leading up to the shooting in evidence, a reasonable juror could
conclude that at least one of the calls or text messages was about the plan to
murder Thibodeaux. The juror could base this finding on the timing and pattern of
the calls leading up to the murder and their drop-off immediately following,
Marshall’s testimony that he heard Robinson discussing the murder on the phone
5 23-613 with someone, and the evidence that Robinson used interstate facilities to send
payments to Rhodes after Thibodeaux was murdered.
5. Rhodes argues that a mandatory life without parole sentence is cruel
and unusual punishment in violation of the Eighth Amendment. This argument is
foreclosed by Harmelin v. Michigan, 501 U.S. 957, 994–95 (1991). See United
States v. LaFleur, 971 F.2d 200, 211 (9th Cir. 1991) (“Under Harmelin, it is clear
that a mandatory life sentence for murder does not constitute cruel and unusual
punishment.”).
AFFIRMED.
6 23-613