FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES, No. 13-50348
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00050-
GAF-5
LORENZO GONZALEZ, AKA
Grumpy,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted
December 11, 2014—Pasadena, California
Filed May 13, 2015
Before: Kim McLane Wardlaw and Marsha S. Berzon,
Circuit Judges, and William E. Smith, District Judge.*
Opinion by Judge Smith
*
The Honorable William E. Smith, Chief United States District Judge
for the District of Rhode Island, sitting by designation.
2 UNITED STATES V. GONZALEZ
SUMMARY**
Criminal Law
The panel affirmed a conviction on a count charging the
defendant with committing a violent crime in aid of a
racketeering enterprise—conspiracy to murder rival gang
members—in a case in which the defendant argued that the
district court’s jury instructions violated his right to a
unanimous jury verdict.
The panel assumed, without deciding, that a specific
unanimity instruction was required because the breadth of the
indictment, in conjunction with the nature of the evidence,
raised the specter of different jurors concluding that the
defendant participated in different conspiracies to murder
different rival gang members.
The panel discerned no abuse of discretion, where the
effect of the district court’s additional instruction was to
ensure juror unanimity on all of the elements of conspiracy
to murder rival gang members and to prevent different
jurors from finding the defendant guilty based on different
conspiracies to murder different gang members. Joining
sister circuits, the panel held that so long as jurors
unanimously agree that the Government has proven each
element of a conspiracy, they need not unanimously agree on
the particular overt act that was committed in furtherance of
the agreed-upon conspiracy.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. GONZALEZ 3
COUNSEL
James Bisnow, Pasadena, California, for Defendant-
Appellant.
Jennie L. Wang, Assistant United States Attorney (argued),
André Birotte Jr., United States Attorney, Robert E. Dugdale
and Justin R. Rhoades, Assistant United States Attorneys, for
Plaintiff-Appellee.
OPINION
SMITH, District Judge:
Lorenzo Gonzalez appeals his conviction and sentence
following a jury trial in which he was found guilty of
racketeering conspiracy (Count One) and of two counts of
committing a violent crime in aid of a racketeering enterprise
(“VICAR”): conspiracy to murder rival gang members
(Count Two) and conspiracy to murder Edward Clark (Count
Ten). In this opinion, we consider only Gonzalez’s argument
that the district court’s instructions to the jury on Count Two
violated his right to a unanimous jury verdict. In a
concurrently filed memorandum disposition, we address
Gonzalez’s remaining challenges to his conviction and
sentence. See United States v. Gonzalez, __ F. App’x __ (9th
Cir. 2015). We affirm his conviction on Count Two.
I. Background
Gonzalez, a member of the 38th Street Gang, was charged
in Count Two with the VICAR offense of conspiracy to
murder rival gang members under California law. The
4 UNITED STATES V. GONZALEZ
Government’s evidence against Gonzalez on Count Two
primarily consisted of wiretapped telephone conversations
between Gonzalez and other 38th Street Gang members
relating to different (often unnamed) members of different
gangs and occurring on different dates. In his proposed jury
instructions, Gonzalez requested that the district court instruct
the jurors to “unanimously agree upon the precise conspiracy
to murder rival gang members which occurred.”
Although the district judge declined to give Gonzalez’s
requested unanimity instruction, he acknowledged the danger
of a non-unanimous jury verdict and expressed concern with
the Government’s insistence that, under California law, it was
not required to prove that the conspirators intended to kill a
specific person. To address these issues, the district court
fashioned an augmented jury instruction, to be given in
addition to the court’s general unanimity instruction. This
additional instruction provided: “The jury must unanimously
agree as to the person or persons who were the intended
victims of the murder conspiracy.” In his final charge to the
jury, the district judge provided both a general unanimity
instruction and the additional unanimity instruction, which
followed on the heels of the court’s instruction on the
elements of the crime of conspiracy to murder rival gang
members:
[T]he government must prove each of the
following four elements beyond a reasonable
doubt:
(1) The defendant and at least one other co-
conspirator entered into an agreement to kill
unlawfully rival gang members;
UNITED STATES V. GONZALEZ 5
(2) The defendant and at least one other co-
conspirator specifically intended to enter into
an agreement with one or more other co-
conspirators for that purpose;
(3) The defendant and at least one other co-
conspirator to the agreement harbored express
malice aforethought, namely, a specific intent
to kill rival gang members; and
(4) An overt act was committed in this state
by one or more of the co-conspirators who
agreed and intended to commit the murder.
The jury must unanimously agree as to the
person or persons who were the intended
victim(s) of the murder conspiracy.
The jury convicted Gonzalez on Count Two (among other
counts), and he timely appealed.
II. Discussion
Gonzalez argues that the district court erred in failing to
instruct the jury that it must unanimously agree on the acts
that constituted the conspiracy to murder underlying the
VICAR offense charged in Count Two. A defendant in a
federal prosecution has a constitutional right to a unanimous
jury verdict. See United States v. Garcia-Rivera, 353 F.3d
788, 792 (9th Cir. 2003); see also Fed. R. Crim. P. 31(a).
Unanimity in this context “means more than a conclusory
agreement that the defendant has violated the statute in
question; there is a requirement of substantial agreement as
to the principal factual elements underlying a specified
6 UNITED STATES V. GONZALEZ
offense.” United States v. Ferris, 719 F.2d 1405, 1407 (9th
Cir. 1983); see also Richardson v. United States, 526 U.S.
813, 817 (1999) (“[A] jury in a federal criminal case cannot
convict unless it unanimously finds that the Government has
proved each element.”). However, “‘there is no general
requirement that the jury reach agreement on the preliminary
factual issues which underlie the verdict,’ since ‘different
jurors may be persuaded by different pieces of evidence, even
when they agree upon the bottom line.’” United States v.
Ruiz, 710 F.3d 1077, 1081 (9th Cir. 2013) (quoting Schad v.
Arizona, 501 U.S. 624, 632, 631–32 (1991) (plurality
opinion)); see also Richardson, 526 U.S. at 817 (“[A] federal
jury need not always decide unanimously which of several
possible sets of underlying brute facts make up a particular
element . . . .”).
In the typical case, a district court’s general unanimity
instruction to the jury adequately protects a defendant’s right
to a unanimous jury verdict. United States v. Chen Chiang
Liu, 631 F.3d 993, 1000 (9th Cir. 2011). However, a general
unanimity instruction alone is insufficient “if it appears ‘that
there is a genuine possibility of jury confusion or that a
conviction may occur as the result of different jurors
concluding that the defendant committed different acts.’” Id.
(quoting United States v. Echeverry, 719 F.2d 974, 975 (9th
Cir. 1983)). In such circumstances, a specific unanimity
instruction is required. Ruiz, 710 F.3d at 1081. In this case,
we assume, without deciding, that a specific unanimity
instruction was required for Count Two because the breadth
of the indictment, in conjunction with the nature of the
evidence, raised the specter of different jurors concluding that
Gonzalez participated in different conspiracies to murder
different rival gang members. See United States v. Payseno,
UNITED STATES V. GONZALEZ 7
782 F.2d 832, 835–37 (9th Cir. 1986); Echeverry, 719 F.2d at
975.
We review the district court’s formulation of the jury
instructions, including the additional unanimity instruction,
for abuse of discretion. See United States v. Garcia, 768 F.3d
822, 827 (9th Cir. 2014); cf. United States v. Kim, 196 F.3d
1079, 1082 (9th Cir. 1999) (“[T]his court reviews [a] district
court’s refusal to give a special unanimity instruction for
abuse of discretion.”). Although the district court did not give
the instruction proposed by Gonzalez, “‘[a] defendant is not
entitled to any particular form of instruction,’ and the district
court may in its discretion issue jury instructions in the words
of its choosing.” United States v. Padilla, 639 F.3d 892, 896
(9th Cir. 2011) (alteration in original) (quoting United States
v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir. 1992)).
Moreover, we do not assess the challenged instruction “in
artificial isolation,” United States v. Dixon, 201 F.3d 1223,
1230 (9th Cir. 2000), but instead consider the instructions “as
a whole and in context.” United States v. Woods, 335 F.3d
993, 997 (9th Cir. 2003).
We discern no abuse of discretion in this case. The effect
of the district court’s additional unanimity instruction was to
ensure juror unanimity on all of the elements of the violent
crime underlying Count Two—conspiracy to murder rival
gang members—and to prevent different jurors from finding
Gonzalez guilty based on different conspiracies to murder
different gang members. The jurors were instructed to
unanimously agree on “the person or persons who were the
intended victim(s) of the murder conspiracy” in order to find
that the elements of the crime of conspiracy to murder rival
gang members had been satisfied. Thus, the jurors needed to
find: (1) an agreement to murder the person or persons who
8 UNITED STATES V. GONZALEZ
they unanimously agreed were the intended victims of the
murder conspiracy; (2) that Gonzalez had both the intent to
agree to murder and the intent to kill these same persons; and
(3) an overt act committed by a conspirator who had agreed
and intended to commit the murder of these agreed-upon
intended victims. Therefore, even if the Government’s
evidence on Count Two created a danger that different jurors
would conclude that Gonzalez conspired to murder different
rival gang members, the additional unanimity instruction, by
requiring the jurors to unanimously agree on the person or
persons who were the intended victims of the murder
conspiracy, led the jurors to reach unanimity “as to the
principal factual elements underlying” the agreed-upon
murder conspiracy. Ferris, 719 F.2d at 1407.
To be sure, because the instruction for the overt-act
element requires the jury to find merely “[a]n overt act”
committed by a person who has agreed and intended to
commit a particular murder, it is possible that, although the
jury unanimously agreed that an overt act was taken with
respect to the unanimously agreed-upon murder conspiracy,
different jurors may have concluded that different particular
overt acts satisfied this element. Even if this occurred,
however, Gonzalez’s right to a unanimous jury verdict was
not violated because, so long as the jurors unanimously
agreed that the overt-act element was satisfied, it was not
necessary for them to agree on which overt act satisfied this
element.
In Chen Chiang Liu, 631 F.3d at 1000 n.7, we stated, in
dicta, that, notwithstanding the comments to Ninth Circuit
Model Jury Instruction 8.20, “[i]t is not clear that a district
court must instruct a jury that it must make a unanimous
finding of which overt act was committed in furtherance of a
UNITED STATES V. GONZALEZ 9
conspiracy.” In making this observation, we relied on Schad,
in which a plurality of the Supreme Court “suggested that a
jury need not specifically agree on which overt act was
committed.” Id. at 1001 n.7. Although we have not
definitively resolved the issue of whether jurors must
unanimously agree on a particular overt act, the Second,
Fifth, and Seventh Circuits have considered the issue and
concluded that such unanimity is not required. See United
States v. Kozeny, 667 F.3d 122, 131–32 (2d Cir. 2011);
United States v. Griggs, 569 F.3d 341, 343–44 (7th Cir.
2009); United States v. Sutherland, 656 F.2d 1181, 1202 (5th
Cir. 1981).
We reached a similar conclusion in a somewhat analogous
context in United States v. Hofus, 598 F.3d 1171, 1175–77 &
nn.2–3 (9th Cir. 2010). In that case, the district court failed to
instruct the jurors to unanimously agree on which specific act
or actions of the defendant constituted the substantial step of
the charged attempt offense. Id. at 1175. After examining
Richardson and Schad, we determined that the district court
did not err because, “even if different jurors found that
different actions constituted [the defendant’s] substantial step,
the differences . . . are differences only of means.” Id. at
1177. The district court’s instructions ensured that the jurors
reached the requisite level of unanimity for the substantial-
step element: unanimous agreement that the element has been
satisfied. Id. at 1176. In this case, even if different jurors
found that different overt acts satisfied the overt-act element,
no unanimity problem would arise because the differences of
opinion on a particular overt act, like the differences of
opinion in Hofus, are ones only of means, and the jurors
reached unanimous agreement that the overt-act element was
satisfied for the unanimously agreed-upon murder conspiracy.
10 UNITED STATES V. GONZALEZ
We now join our sister circuits and hold that, so long as
jurors in a federal criminal trial unanimously agree that the
Government has proven each element of a conspiracy, see
Richardson, 526 U.S. at 817, they need not unanimously
agree on the particular overt act that was committed in
furtherance of the agreed-upon conspiracy. Therefore, even
though the additional unanimity instruction in this case did
not require unanimous agreement on a particular overt act,
Gonzalez’s right to a unanimous jury verdict was not
violated.
One final aspect of this case convinces us that the district
court’s additional unanimity instruction adequately protected
Gonzalez’s right to a unanimous verdict: the nature of the
evidence. Although not identifying the potential intended
victims by name (with the exception of a rival gang member
known as Speedy), the vast majority of the evidence on Count
Two provided the jury with discrete groups of potential
intended victims on which it could unanimously agree: a
BMS gang member called Speedy; the BMS members on
47th Street on May 9, 2010; the rival gang members in
Latham Park on April 8, 2010; the Pueblo Bishops gang
members who shot an individual called Sharp on March 30,
2010; the BMS members who shot at an individual called
Spencer on April 25, 2010; the AFC members who fought
two 38th Street Gang members in 38th Street Gang territory
on March 25, 2010; the potential gang members working near
a 38th Street Gang member’s house on March 25, 2010; and
the Florencia gang members coming through 38th Street
Gang territory on March 8, 2010.1 The jurors needed to select
1
To be sure, the evidence with respect to a particular individual or group
may not have been sufficient to support a finding of guilt on a conspiracy
to murder that individual or group. However, this potential discrepancy
UNITED STATES V. GONZALEZ 11
the person or persons who were the intended victims of the
murder conspiracy—upon whom the jurors were instructed to
unanimously agree—from these discrete groups of potential
intended victims.2
For these reasons, we hold that, to the extent a specific
unanimity instruction was required, the district court’s
additional unanimity instruction adequately ensured that the
jurors reached the requisite level of unanimity.
AFFIRMED.
poses not a juror-unanimity problem, but a sufficiency-of-the-evidence
issue, which we address in the concurrently filed memorandum
disposition.
2
Gonzalez claims that, under the district court’s additional unanimity
instruction, the jurors could have unanimously agreed that the victim was
a particular rival gang but still not have unanimously agreed on the
particular distinct conspiracy directed at the agreed-upon gang. We are
unpersuaded. The jurors were not instructed to reach unanimous
agreement on the gang that was the target of the murder conspiracy;
instead, they were told to “unanimously agree as to the person or persons
who were the intended victim(s) of the murder conspiracy.” We will not
presume that the jurors declined to unanimously agree on the person or
persons who were the intended victims, as they were instructed to do, and
instead reached unanimous agreement only as to the particular rival gang
that was targeted.