NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 28 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10291
Plaintiff-Appellee, D.C. No. 5:18-cr-00466-BLF-2 v.
VINCENT GERALD GARCIA, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 22-10333
Plaintiff-Appellee, D.C. No. 5:18-cr-00466-BLF-15 v.
JORGE JASSO,
UNITED STATES OF AMERICA, No. 22-10346
Plaintiff-Appellee, D.C. No. 5:19-cr-00035-BLF-2 v.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding
Argued and Submitted December 3, 2024 San Francisco, California
Before: BENNETT, BRESS, and FORREST, Circuit Judges.
Defendants Vincent Garcia and Jorge Jasso appeal their conspiracy
convictions under 18 U.S.C. §§ 1962(d) (RICO conspiracy) and 1959(a) (here,
conspiracy to commit murder and assault with a dangerous weapon in aid of
racketeering). Collectively, Defendants make four constitutional arguments, three
evidentiary arguments, and a cumulative-error argument. 1 We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
1. Unanimity Instruction. Defendants argue that the district court erred
by not giving a specific unanimity instruction on the counts brought under 18 U.S.C.
§ 1959(a). Because this issue was not raised to the district court, we review for plain
error. See United States v. Anguiano, 873 F.2d 1314, 1318–19 (9th Cir. 1989). Plain
error is (1) error, (2) that is clear or obvious, (3) that prejudices the appellant’s
substantial rights, and (4) that seriously affects the fairness, integrity, or public
1 Jasso also appeals from a separate conviction for failure to appear after pre- trial release, under 18 U.S.C. § 3146. However, Jasso did not make any arguments in his briefing that address this conviction or any issues related to it. Therefore, any challenge to this conviction is forfeited. See United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir. 1995). 2 reputation of the judicial proceedings. United States v. Lopez, 762 F.3d 852, 863 (9th
Cir. 2014).
A jury must have “substantial agreement as to the principal factual elements
underlying a specified offense.” United States v. Gonzalez, 786 F.3d 714, 716 (9th
Cir. 2015) (quoting United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir. 1983)).
While a general instruction on the unanimity requirement is normally sufficient, “a
specific unanimity instruction is required if there is a ‘genuine possibility of jury
confusion’ or a possibility ‘that a conviction may occur as the result of different
jurors concluding that the defendant committed different acts.’” United States v.
Lapier, 796 F.3d 1090, 1096 (9th Cir. 2015) (quoting United States v. Payseno, 782
F.2d 832, 836 (9th Cir. 1986)).
Unlike Lapier, where the evidence showed multiple separate agreements, id.
at 1095–98, here the evidence showed a single overarching agreement to commit
murder or assault against a preselected category of people, with sub-agreements
specifying individual victims, see People v. Johnson, 303 P.3d 379, 390 (Cal. 2013)
(“A single agreement to commit several crimes constitutes one conspiracy.”); see
also United States v. Arbelaez, 719 F.2d 1453, 1457 (9th Cir. 1983) (noting that a
single conspiracy exists when “there was ‘one overall agreement’ to perform various
functions to achieve the objectives of the conspiracy,’” even if there were
“subgroups or subagreements” (quoting United States v. Zemek, 634 F.2d 1159,
3 1167 (9th Cir. 1980))). Each member of the Nuestra Familia (NF) housed in
Monterey County Jail (MCJ) was educated about gang rules and practices, including
which rule violations required the “removal” of offending members, the chain of
command for removals, and how to conduct removals. The evidence also showed
that each victim was targeted based on these practices. Accordingly, there was no
genuine risk of jury confusion here, given that the evidence clearly showed a single
broad conspiracy.
2. Broadened Indictment. Because the Fifth Amendment requires
indictment by a grand jury, “after an indictment has been returned its charges may
not be broadened through amendment except by the grand jury itself.” Stirone v.
United States, 361 U.S. 212, 215–16 (1960). Count I of the indictment alleged that
Garcia ordered three of the seven removals at issue. Garcia argues that two events at
trial broadened this allegation. Garcia did not raise these issues at trial, so we review
for plain error. See United States v. Hartz, 458 F.3d 1011, 1019 (9th Cir. 2006).
First, Garcia argues that the Government broadened the indictment by
suggesting in its opening statement that each of the seven removals happened on his
gang leadership. But the Government’s opening statement is consistent with the
allegations in the indictment that Garcia was a “carnale” with authority over other
NF members. Second, Garcia argues that witness testimony suggested that he
ordered Reyes’s removal, an act to which the indictment did not explicitly connect
4 him. However, the indictment alleged that the highest-ranking NF member in MCJ
needed to authorize removals and that Garcia was the highest-ranking NF member
in MCJ. Accordingly, the district court did not plainly err in admitting this testimony
or allowing the Government’s opening statement.
3. Vouching. A prosecutor commits misconduct that may require a new
trial by improperly vouching for a witness. United States v. Roberts, 618 F.2d 530,
533, 537 (9th Cir. 1980). “Vouching may occur in two ways: the prosecution may
place the prestige of the government behind the witness or may indicate that
information not presented to the jury supports the witness’s testimony.” Id. at 533;
accord United States v. Necoechea, 986 F.2d 1273, 1276–78 (9th Cir. 1993)
(compiling cases). Here, even assuming Defendants preserved this issue via their
general pretrial motion in limine, there was no error.
First, Defendants argue that the Government improperly vouched for Special
Agent Dustin McWhirter when it asked whether he took steps to verify the
information in a particular inmate communication. This was not vouching; it was a
run-of-the-mill question to lay a foundation.
Second, Defendants argue that the Government improperly vouched for
cooperator witnesses during its closing rebuttal by emphasizing to the jury that the
cooperator witnesses’ agreements with the Government required truthfulness.
However, the Government may present evidence of a truthfulness requirement in a
5 cooperator agreement if the defendant references the agreement in attacking the
cooperator’s credibility. See United States v. Monroe, 943 F.2d 1007, 1013–14 (9th
Cir. 1991) (“[A] reference to the ‘truthful testimony’ provisions of a witness’s
agreement with the government does not constitute vouching if it is made in response
to an attack on the witness’s credibility because of his plea bargain.”). Here, in their
opening statements, Defendants asserted that the cooperators’ plea bargains made
them untrustworthy and repeated a similar argument during closing. Accordingly, it
was not improper for the Government to emphasize the agreements’ truthfulness
requirement in rebuttal.
4. Brady Violations. The Government violates due process when it
suppresses evidence favorable to the accused. Brady v. Maryland, 373 U.S. 83, 87
(1963). The defendant must show: (1) the evidence is favorable; (2) the evidence
was suppressed by the prosecution; and (3) prejudice. Strickler v. Greene, 527 U.S.
263, 281–82 (1999). We review de novo whether a Brady violation has occurred.
United States v. Stinson, 647 F.3d 1196, 1208 (9th Cir. 2011).
First, Jasso argues that the Government violated its Brady obligations by
suppressing evidence that, before the grand jury, a cooperator witness falsely
implicated Jasso in a removal that he could not have participated in because he was
not housed in MCJ at the time. We conclude there was no suppression of this
evidence. Well before trial, the Government produced both the relevant grand jury
6 transcripts and the jail records that showed Jasso was not housed in MCJ at the time
of the removal. This is the evidence that Jasso needed to identify the false testimony.
Second, Jasso argues that the Government suppressed that it and the witness
knew about the false grand jury testimony before trial. But even assuming that the
Government’s or a witness’s knowledge of false grand jury testimony is “favorable
evidence” within the meaning of Brady, Jasso suffered no prejudice. The district
court allowed extensive re-examination of the witness on this issue. These
circumstances do not establish a reasonable probability that Jasso lacked a fair trial.
See Kyles v. Whitley, 514 U.S. 419, 434 (1995).
5. Hearsay/Authentication. Defendants challenge the admission of five
sets of statements made by gang members discussing events that occurred within
MCJ. A statement is not hearsay if it is “offered against an opposing party” and the
proponent proves by a preponderance of the evidence that it “was made by the
party’s coconspirator during and in furtherance of the conspiracy.” Fed. R. Evid.
801(d)(2)(E). Where Defendants raised their objection at trial, we review the district
court’s ruling for abuse of discretion. Lopez, 762 F.3d at 859. “An abuse of discretion
is an error of law or a determination based on a clearly erroneous finding of fact.”
United States v. Manchester Farming P’ship, 315 F.3d 1176, 1181 (9th Cir. 2003).
Otherwise, we review for plain error. Lopez, 762 F.3d at 859. Here, we find no error
under either standard.
7 a. The “Champ” Kite. The “Champ” kite, introduced through Israel
Cota, describes Victorino “Wolfie” Gonzalez’s removal and suggests Jasso was
involved. Jasso first argues that the kite was not authenticated. Jasso made this
objection at trial, so we review for abuse of discretion. Evidence is authenticated if
“sufficient proof has been introduced so that a reasonable juror could find in favor
of authenticity.” United States v. Pang, 362 F.3d 1187, 1193 (9th Cir. 2004) (quoting
United States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000)); see also Fed. R. Evid.
901(a). Cota did not author the kite, had not seen it before, and could not make a
handwriting comparison. But he testified that the format and contents of the kite
were consistent with NF practices and that he knew “Champ” was an NF member
named Alexander Montano. We conclude that the district court did not abuse its
discretion in rejecting Jasso’s authentication objection.
Next, Jasso argues that the kite was inadmissible hearsay because there was
insufficient proof that Montano was involved in a conspiracy with Jasso and that the
statement was made in furtherance of such conspiracy. Jasso did not make this
objection at trial, so we review for plain error. Cota’s testimony was sufficient to
establish that Montano was a member of NF, and the contents of the kite itself
suggest that Montano was involved in NF, knew the reasons behind Gonzalez’s
removal, and was involved in that removal. This is sufficient to establish that
Montano knew of and participated in a joint venture with Defendants. The kite was
8 also written to alert NF members that Johnny “Soldier Boy” Magdaleno was acting
in violation of NF’s rules and that he should be removed in accordance with gang
protocol. This is sufficiently in furtherance of the conspiracy to warrant admission
under the co-conspirator exception to the hearsay rule.
b. Medina’s Statements. Cota relayed in a kite Jose “Pollo”
Medina’s description of Gonzalez’s removal, which implicated Jasso. Jasso made a
hearsay objection at trial, so we review for abuse of discretion. The evidence
presented established that Medina was an NF member, was familiar with NF’s rules
regarding removals, and responded to Cota’s authority within NF. This evidence is
sufficient to show that Medina knew of and participated in the conspiracy with Jasso
to ensure NF’s rules regarding removals were properly followed in Gonzalez’s
removal. And both Cota’s testimony and the kite itself suggest that Medina knew his
statements would be incorporated into the kite and forwarded to other NF members
to act on. Thus, this evidence also is sufficient to establish that Medina’s statements
were in furtherance of the conspiracy. Therefore, the district court did not abuse its
discretion.
c. Magdaleno’s Statements. Isidro Zavala and Michael Aguilera
testified about Magdaleno’s statements regarding Gonzalez’s and Ernesto
Rodriguez’s removals. Defendants argue that Magdaleno’s statements were not
made in furtherance of the conspiracy. Jasso made hearsay objections to each of
9 these statements, so we review for abuse of discretion.
First, “statements made to keep coconspirators abreast of an ongoing
conspiracy’s activities satisfy the ‘in furtherance of’ requirement.” United States v.
Tamman, 782 F.3d 543, 553 (9th Cir. 2015) (quoting United States v. Williams, 989
F.2d 1061, 1068 (9th Cir. 1993)). Magdaleno’s statements to Zavala and Aguilera
kept them abreast of the ongoing conspiracy to conduct removals against gang
members who violated NF’s rules, including Gonzalez and Rodriguez.
Second, we reverse only if “it is more probable than not” that the error
materially affected the verdict. United States v. Torres, 794 F.3d 1053, 1063 (9th
Cir. 2015) (quoting United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002));
see also Fed. R. Crim. P. 52(a). Even assuming that these statements were not made
in furtherance of the conspiracy, their admission was harmless. Magdaleno’s
statements discuss two of the seven removals. The jury had ample other evidence of
both Garcia’s and Jasso’s participation in the conspiracy and of five other removals.
And while Magdaleno implicated Jasso in Gonzalez’s removal, Aguilera’s
testimony suggested that Jasso himself bragged about his role in this event—
statements that were admissible under Rule 801(d)(2)(A). Therefore, any error in
admitting Magdaleno’s statements did not prejudice either Defendant.
d. Aguilera’s Kite. The Government introduced a kite from
Aguilera to NF leadership describing corrections agents’ raid on his pod, and the
10 contraband he lost during the raid. Aguilera testified that he wrote the kite to inform
his chain of command that he lost important items, per NF’s rules, so that he could
be disciplined if needed. Defendants argue that the statements were not in
furtherance of the conspiracy. Jasso made a hearsay objection at trial, so we review
for abuse of discretion. We conclude that because of Aguilera’s stated purpose for
sending the kite, it was in furtherance of the conspiracy to keep gang leaders updated
on how corrections agents were interfering with the operations of the conspiracy.
The statements were not “purely historical” because they were intended to achieve
the objectives of the conspiracy. Cf. United States v. Nazemian, 948 F.2d 522, 529
(9th Cir. 1991). Accordingly, the district court did not abuse its discretion in
admitting this evidence.
e. Delgado’s Kite. The Government introduced a kite from Richard
Delgado informing NF leadership why he was pulled out of his pod by correctional
officers. Delgado testified that if other NF members had discovered that officers did
not pull him aside to go to court—as they announced—he would have been unsafe.
Again, Defendants argue that these statements were not in furtherance of the
conspiracy. Because neither Defendant made a hearsay objection, we review for
plain error. As with Aguilera’s kite, Delgado’s statements had an intended future
effect on conspiracy activities given that they were made to reinforce his
participation in the conspiracy. The district court did not err in admitting the kite.
11 6. Expert Testimony. Lay witnesses, unlike expert witnesses, must
ground their testimony in personal knowledge, and may offer opinion testimony only
when it is “rationally based” on their perception and not on “scientific, technical, or
other specialized knowledge.” Fed R. Evid. 602, 701. Garcia argues that three
cooperator witnesses were improper undesignated experts because they based their
testimony in part on education received from NF. We conclude that the district court
did not abuse its discretion in admitting this evidence. Each witness’s testimony was
rationally based on his perception of events within MCJ; the basic education on gang
structure and tactics under the circumstances presented here was not “specialized
knowledge” within the meaning of Rule 701 but rather was based on the witnesses’
personal experiences.
7. Rule 404(b) Evidence. Jasso challenges the Government’s evidence
about prior events as improper propensity evidence. “Evidence of any other crime,
wrong, or act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the character,” but such
evidence “may be admissible for another purpose.” Fed. R. Evid. 404(b)(1), (2).
a. Bank Robberies. In testifying about how Jasso was apprehended,
Detective Eden Cerda explained that she had been surveilling Jasso because he was
a suspect in a series of bank robberies. After Jasso raised a concern about this
testimony outside the presence of the jury, the district court suggested a curative
12 instruction. Five days later, Jasso moved for a mistrial. The district court denied this
motion and instructed the jury not to consider any of Detective Cerda’s testimony,
including “testimony regarding investigation of other crimes at the time Mr. Jasso
was arrested in Fresno.”
The district court acted within its discretion in issuing a curative instruction
and striking Cerda’s testimony rather than granting Jasso’s motion for a mistrial. See
United States v. English, 92 F.3d 909, 912 (9th Cir. 1996). District courts may grant
a mistrial if there is a “manifest necessity” for doing so, Renico v. Lett, 559 U.S. 766,
773–74 (2010) (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824)),
for example, where an obvious procedural error would result in reversal on appeal,
see Illinois v. Somerville, 410 U.S. 458, 464 (1973). Here, Jasso was not unfairly
prejudiced by Detective Cerda’s testimony, especially after it was struck in its
entirety. As discussed above, the jury knew Jasso was in jail and there was ample
evidence of his participation in the NF conspiracy such that it is extremely unlikely
that Detective Cerda’s brief testimony affected the jury’s deliberations or led the
jury to convict Jasso because of their view of his character. While we have suggested
that curative instructions must be given soon after evidence was introduced, see
United States v. Kerr, 981 F.2d 1050, 1054 (9th Cir. 1992), here the delay was caused
by Jasso. He did not object to the testimony before the jury nor did he request an
immediate curative instruction even after such instruction was suggested by the
13 court. Instead, he waited five days to move for a mistrial. Under these circumstances,
the district court did not abuse its discretion in concluding that the curative
instruction was sufficient to remedy any Rule 404(b) violation.
b. Firearms. Testimony at trial indicated that Jasso was
apprehended with a large quantity of firearms with high-capacity magazines. Jasso
did not make a Rule 404(b) objection to this testimony, so we review for plain error.2
Even if this evidence implicates Rule 404(b), it did not prejudice Jasso because there
was substantial evidence tying him to the conspiracies. Thus, any error did not
“seriously affect[] the fairness, integrity or public reputation of” the trial. United
States v. Johnson, 979 F.3d 632, 636 (9th Cir. 2020).
c. North Kern State Prison Fight. The Government introduced
evidence that Jasso was observed by correctional officers at North Kern State Prison
attacking another inmate. Because Jasso did not make a Rule 404(b) objection to this
testimony, we review for plain error. Contrary to the Government’s argument, there
was no apparent evidence to indicate that this fight was related to the conspiracies
charged in the indictment. However, as above, we conclude that it did not prejudice
Jasso or implicate the fairness of the proceedings.
2 Jasso also raises a Rule 403 issue, which he preserved at trial and we review for abuse of discretion. Even assuming error, given the extensive evidence tying Jasso to the conspiracies, we conclude that it is not “more probable than not” that any error materially affected the verdict. Torres, 794 F.3d at 1063 (quoting Seschillie, 310 F.3d at 1214). 14 8. Cumulative Error. When “[t]he collective presence of . . . errors is
devastating to one’s confidence in the reliability” of a verdict, a new trial is
warranted. Killian v. Poole, 282 F.3d 1204, 1211 (9th Cir. 2002). “[E]ven if no single
error [was] prejudicial, where there are several substantial errors, ‘their cumulative
effect may nevertheless be so prejudicial as to require reversal.’” Id. (quoting United
States v. de Cruz, 82 F.3d 856, 868 (9th Cir. 1996)). But where “each error is, at
best, marginal,” their cumulative effect is not so prejudicial that reversal is
warranted. United States v. Karterman, 60 F.3d 576, 580 (9th Cir. 1995).
We conclude that any errors the district court committed related to the issues
raised on appeal were cumulatively harmless because apart from the challenged
evidence there was sufficient evidence to sustain Defendants’ convictions under 18
U.S.C. §§ 1962(d) and 1959(a).
AFFIRMED.