United States v. Rondale Young

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 30, 2022
• Docket: 19-50355
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 30 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50355

Plaintiff-Appellee, D.C. No. 10-cr-00923-SJO-31 Central District of California, Los Angeles

v. ORDER

RONDALE YOUNG,

Defendant-Appellant.

Before: WATFORD, BUMATAY, Circuit Judges, and FREUDENTHAL,** Senior District Judge

The Memorandum filed July 28, 2021 is withdrawn and replaced by the new

Memorandum filed concurrently with this order. The order staying the mandate

pending the conclusion of en banc proceedings in United States v. Begay, No. 14-

10080 is vacated. Petitions for rehearing or for rehearing en banc may be filed with

respect to the new memorandum.

** The Honorable Nancy D. Freudenthal, United States Senior District Judge for the District of Wyoming, sitting by designation. 1 NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 30 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Plaintiff-Appellee, D.C. No. 10-cr-00923-SJO

MEMORANDUM*

v.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Argued and Submitted July 9, 2021 Pasadena, California

Before: WATFORD, BUMATAY, Circuit Judges, and FREUDENTHAL,** Senior District Judge Concurrence by Judge WATFORD

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Nancy D. Freudenthal, United States Senior District Judge for the District of Wyoming, sitting by designation. 1 Following an earlier reversal and remand in United States v. Young, 720 F.

App’x 846 (9th Cir. 2017), Rondale Young was tried a second time on charges

arising from a 2009 shooting at a carwash in nearby 38th Street gang territory. The

jury returned convictions for conspiracy to violate the Racketeer Influenced and

Corrupt Practices Act (RICO), conspiratorial and substantive murder under the

Violent Crime in Aid of Racketeering (VICAR) statute, and use of a firearm in

furtherance of a crime of violence. The Court affirms in all respects.

1. Young argues his prior state acquittal for murder bars or is a defense

against federal prosecution for VICAR murder. He also argues re-prosecution is

barred because the government delayed prosecution. The district court did not err

in denying dismissal. The federal trial was not for a violation of the same statute

adjudicated in state court even though the indictment for VICAR murder borrowed

California law defining murder. Thus, the exception to the separate sovereign

doctrine recognized in Houston v. Moore, 18 U.S. 1 (1820) and confirmed in Gamble

v. United States, 139 S. Ct. 1960, 1977–78 (2019), does not apply.

Young’s second theory that his state acquittal is a valid defense was not

preserved below, thus this issue is reviewed for plain error. United States v.

McElmurry, 776 F.3d 1061, 1063 (9th Cir. 2015). The district court did not plainly

err in allowing the VICAR murder charge to go to the jury. On this charge, to avoid

prejudice, the court “should instruct on the state definition” to include “the requisite

2 state of mind or the law respecting self-defense.” United States v. Adkins, 883 F.3d

1207, 1211 (9th Cir. 2018) (citation omitted). A prior acquittal is not part of

California’s definition of murder; thus his state acquittal is not a valid defense to

VICAR murder.

As to delay in prosecution, Young’s Sixth Amendment speedy trial claim is

waived by his failure to raise it in the earlier appeal. United States v. Radmall, 340

F.3d 798, 802 (9th Cir. 2003) (“[Defendant] cannot now use the serendipitous fact

of reversal . . . to refashion his defaulted claims. . . .”). Dismissal for delay under

Federal Rule of Criminal Procedure 48(b) “is limited to post-arrest situations.”

United States v. Benitez, 34 F.3d 1489, 1495 (9th Cir. 1994) (“[A]n arrest or

prosecution by state authorities does not trigger Rule 48(b)”). The ten-month period

between Young’s federal arrest and trial does not constitute unnecessary delay.

2. Young argues the law of the case requires suppression of his second-

day custodial statements and recorded calls based on the mid-stream Miranda

warning given his first day in custody during a deliberate two-step interrogation

ruled improper in his earlier appeal. Young, 720 F. App’x at 848–49. Young also

argues for suppression of his recorded calls, and for suppression of allegedly coerced

statements made after officers detained and referred to his mother. The law of the

case does not require suppression of Young’s second-day statements because this

Court’s earlier decision addressed only the circumstances of the first day with no

3 implication that the Court reached Young’s later statements. See United States v.

Garcia-Beltran, 443 F.3d 1126, 1129 (9th Cir. 2006) (the law of the case extends to

issues “decided explicitly or by necessary implication”).

Further, there is no clear error in the district court’s factual findings denying

Young’s suppression motion. United States v. Job, 871 F.3d 852, 859 (9th Cir. 2017)

(“[F]actual findings [are reviewed] for clear error . . . .”). These findings support the

district court’s conclusion that the circumstances of that second day were curative

of the prior day’s Miranda violation. See Bobby v. Dixon, 565 U.S. 23, 32 (2011)

(the break in time and change in circumstances created “a new and distinct

experience” to conclude the Miranda warning was not undermined (citation

omitted)). No additional curative steps were required for a reasonable person in

Young’s position to understand that he had a real choice about whether to speak

again at his request to the detectives. See Missouri v. Seibert, 542 U.S. 600, 611–12

(2004).

The district court’s findings that Young’s testimony was not credible support

the order denying suppression of the recorded calls. Special deference is given to a

district court’s determinations of witness credibility. United States v. Hovsepian,

422 F.3d 883, 885 (9th Cir. 2005). Finally, the detective’s actions and comments

about Young’s mother were not coercive but were logically related to video

4 surveillance and eyewitness identifications indicating the vehicle used in the

carwash shooting belonged to Young’s mother.

3. Young argues the jury instructions erroneously described VICAR’s

purpose (motive) and its malice elements. As to purpose, Young argues Burrage v.

United States, 571 U.S. 204 (2014) requires a “but-for” causal relationship between

the racketeering enterprise and the murder. This argument was rejected in United

States v. Rodriguez, 971 F.3d 1005, 1010–11 (9th Cir. 2020) and thus we reject it

here. The district court correctly gave a “substantial purpose” rather than a “but-for

cause” instruction for the VICAR purpose element. Young also argues the

disjunctive form of the purpose instruction was erroneous. However, a disjunctive

formulation was specifically recognized in United States v. Banks, 514 F.3d 959 (9th

Cir. 2008) to “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.” Id. at 970.

The Court also rejects Young’s arguments that the malice instructions were

defective for conspiratorial and substantive murder under VICAR. The instruction

for conspiratorial murder required the government to prove Young agreed and

intended that one or more of his co-conspirators would “intentionally and unlawfully

kill” the victim, not just “intentionally kill.” The substantive VICAR murder

instruction provided that a person acts with express malice if he unlawfully intended

to kill. Read together, the phrase “intentionally and unlawfully kill” incorporates an

5 express malice requirement. The jury could not convict on only implied malice. On

aiding and abetting VICAR murder, the instruction required the jury find Young

“intentionally help[ed] someone else commit a crime” by “act[ing] with the intent to

facilitate murder in the aid of racketeering” by “actively participat[ing] in a criminal

venture with advance knowledge of the crime and having acquired that knowledge

when Defendant still had a realistic opportunity to withdraw from the crime.”

(emphasis added). This instruction does not permit a conviction by finding the

shooting was merely a natural and probable consequence of Young picking up the

co-conspirators.

Young was also not entitled to a sua sponte heat of passion instruction, as the

evidence did not support it. People v. Breverman, 960 P.2d 1094, 1104 (Cal. 1998).

Approximately forty minutes passed between the shooting of Young’s fellow gang

member (McWayne) and the car wash shooting. Surveillance video shows the car

that Young was driving circled the car wash for three to four minutes before the

shooting, showing some deliberation. There was also no evidence that Young or his

passengers thought the victim was McWayne’s shooter; rather, they looked for

someone likely to be a member of the rival gang. These facts at best support acting

on an emotion of revenge, which cannot support a heat of passion instruction.

People v. Lasko, 999 P.2d 666, 670 (Cal. 2000). In addition, as in United States v.

Begay, 33 F.4th 1081 (9th Cir. 2022) (en banc), the theory that Young’s counsel

6 presented to the jury – that Young did not know anyone in the car was going to

commit murder – is incompatible with the notion that Young acted in the heat of

passion. See id. at 1088–89.

Finally, the instruction for Pinkerton liability is correct in that the jury was

required to find Young agreed with the shooter that one or both of them would kill

with express malice, and the shooting of the victim was a natural and probable

consequence of that agreement.

4. Young’s conviction for use and carry of a firearm in furtherance of a

crime of violence relies on the VICAR second degree murder charge as the crime of

violence. Previously, United States v. Begay, 934 F.3d 1033 (9th Cir. 2019) held

that a finding of extreme recklessness, depraved heart, or implied malice will suffice

as the requisite mental state for second degree murder under federal and California

law. Id. at 1040; Cal. Penal Code § 188. The plurality in Borden v. United States,

593 U.S. __, 141 S. Ct. 1817 (2021) subsequently concluded the phrase “violent

felony” under 18 U.S.C. § 924(e) of the Armed Career Criminal Act (ACCA) does

not include offenses criminalizing “ordinary” reckless conduct. Id. at 1825, n.4. The

definitions of “crime of violence” in § 924(c)(3) and “violent felony” in

§ 924(e)(2)(B) are identical in relevant part.

On rehearing en banc, this Court found that after Borden, “[t]he distinction

between degrees of recklessness is critical to our conclusion.” United States v.

7 Begay, 33 F. 4th 1081, 1094 (9th Cir. 2022) (en banc). The opinion notes that second

degree murder under federal law (18 U.S.C. § 1111(a)) requires conduct in extreme

indifference to the value of human life, such that the defendant can fairly be said to

have actively used force against the person of another. Id. at *11. Therefore,

“second-degree [federal] murder qualifies as a crime of violence pursuant to

§ 924(c)(3)(A).” Id. at *3. Here, Count Three was charged as murder in violation

of both VICAR (18 U.S.C. § 1959(a)) and California law. California second-degree

murder requires express or implied “malice aforethought.” Cal. Penal Code § 188.

Young points to the jury instruction defining malice aforethought – based on

California’s former definition of the term – and argues the jury was not required to

find extreme indifference or extreme recklessness in this case, and therefore there

was no crime of violence to support the § 924(c) conviction. But the focus here is

categorical. And as noted, there was no error on the other counts. At trial, the

government pursued Count Three based only on theories of Young being a

conspirator or aider and abettor – Young was the driver, not the shooter – and the

instructions on conspirator liability and aiding and abetting for Count Three required

the jury to find respectively express malice (by referring to Count Two) or advance

knowledge that a murder would be committed.

5. Young further argues error in the district court instructing the jury on a

Pinkerton theory of liability for his § 924(c) conviction. This Court rejected

8 Young’s argument in United States v. Henry, 984 F.3d 1343, 1355–56 (9th Cir.

2021). Young contends that Henry’s continued reliance on reasonable foreseeability

is inconsistent with Borden and Rosemond v. United States, 572 U.S. 65 (2014). But

neither of those cases addresses Pinkerton liability, and they are not clearly

irreconcilable with Henry. Post-Borden, this Court continues to follow Henry. See,

e.g., United States v. McShane, No. 17-16906, 2021 WL 4810501, at *1 (9th Cir.

Oct. 15, 2021); United States v. Major, No. 17-16764, 2022 WL 1714290, at *1 (9th

Cir. May 27, 2022).

6. The Court rejects Young’s argument that the law permits a fine without

imprisonment for VICAR murder. See United States v. Rollness, 561 F.3d 996, 998

(9th Cir. 2009) (per curiam) (recognizing that Ҥ 1959(a)(1) imposes a minimum

sentence of life imprisonment for VICAR murder”). The holding in Rollness is

unaffected by Encino Motors, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018).

AFFIRMED.

9 FILED United States v. Young, No. 19-50355 JUN 30 2022 MOLLY C. DWYER, CLERK WATFORD, Circuit Judge, concurring: U.S. COURT OF APPEALS

I agree with my colleagues that a conviction for VICAR murder carries a

mandatory minimum sentence of life imprisonment without the possibility of

parole. United States v. Rollness, 561 F.3d 996, 997–98 (9th Cir. 2009) (per

curiam); accord United States v. Under Seal, 819 F.3d 715, 720 (4th Cir. 2016);

United States v. Carson, 455 F.3d 336, 385 n.44 (D.C. Cir. 2006) (per curiam);

United States v. James, 239 F.3d 120, 126–27 (2d Cir. 2000). But this case

illustrates why mandatory minimum sentences of any sort—especially a sentence

of life without parole—are both unjust and unwise.

The district judge who sentenced Rondale Young to life without parole did

not believe that sentence to be warranted. He agreed with the jury’s verdict, which

was predicated on a finding that Young played an integral role in the murder of an

innocent person. To retaliate against a rival gang, Young drove two of his fellow

gang members into the rival gang’s territory to kill one of that gang’s members.

Young’s co-conspirators got out of the car, shot and killed someone they

mistakenly believed to be a member of the rival gang, and then ran back to the car

where Young was waiting to drive them off. Young no doubt deserved a lengthy

sentence for engaging in that conduct, and the judge who presided over his trial

and heard the evidence against him was no doubt prepared to impose such a Page 2 of 3

sentence. But the judge also stated that, if afforded the discretion to do so, he

would not have sentenced Young to spend the rest of his life in prison.

Young’s character and background did not suggest that he deserved the

law’s most severe sanction short of death. He was 26 years old at the time of the

offense, a devoted father, and employed as a delivery driver for Arrowhead. He

had only a minor criminal record. In addition, there was no evidence suggesting

that Young had planned or orchestrated the murder, so his role in the offense

rendered him at least somewhat less culpable than the other two participants. Yet

the judge had already sentenced one of those defendants—the one who prosecutors

believed had actually shot the victim—to 40 years in prison. (That defendant,

Anthony Gabourel, had been tried separately from Young and acquitted of the

VICAR murder charge, so he avoided the mandatory life sentence that Young

faced.) The judge was understandably reluctant to impose on Young a longer

sentence than the one his more culpable co-defendant had received.

What the Supreme Court has said in the capital sentencing context applies,

in my view, with no less force in non-capital cases. Arriving at a “just and

appropriate sentence” in any case—capital or otherwise—“requires consideration

of the character and record of the individual offender and the circumstances of the

particular offense.” Woodson v. North Carolina, 428 U.S. 280, 304 (1976)

(plurality opinion); see also 18 U.S.C. § 3553(a)(1) (requiring the court to Page 3 of 3

consider, among other factors, the “nature and circumstances of the offense and the

history and characteristics of the defendant”). Mandatory minimum sentencing

laws frequently preclude the imposition of a just and appropriate sentence because

they “treat[] all persons convicted of a designated offense not as uniquely

individual human beings, but as members of a faceless, undifferentiated mass.”

Woodson, 428 U.S. at 304. Young deserved to be treated “with that degree of

respect due the uniqueness of the individual,” Lockett v. Ohio, 438 U.S. 586, 605

(1978) (plurality opinion), even if he was facing a sentence of life without parole

rather than death.