NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 28 2021
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.
2:10-cr-00923-SJO-31
v.
RONDALE YOUNG, AKA Devil, AKA P- MEMORANDUM*
Grump, AKA PG, AKA Pueblo Group,
Defendant-Appellant.
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 and BUMATAY, Circuit Judges, and FREUDENTHAL,**
District Judge.
Concurrence by Judge WATFORD
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
*
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 District Judge for
the District of Wyoming, sitting by designation.
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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 vacates Young’s firearm conviction,
vacates the related consecutive ten-year sentence, and affirms in all other 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 state of mind or the law respecting self-defense.” United States v. Adkins,
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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
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day with no 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
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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
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intended to kill. Read together, the phrase “intentionally and unlawfully kill”
incorporates an 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. 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. 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) concluded the phrase “violent felony” under
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18 U.S.C. § 924(e) of the Armed Career Criminal Act (ACCA) does not include
offenses criminalizing reckless conduct. Id. at 1825. The definitions of “crime of
violence” in § 924(c)(3) and “violent felony” in § 924(e)(2)(B) are identical in
relevant part. Because second degree murder under federal and California law
criminalizes reckless conduct, VICAR second degree murder is not categorically a
crime of violence. Because Young’s conviction under 18 U.S.C. § 924(c) is
vacated, the Court declines to address whether Pinkerton liability applies.
5. 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).
VACATE 18 U.S.C. § 924(c) CONVICTION AND SENTENCE; AFFIRM IN
ALL OTHER RESPECTS.
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FILED
United States v. Young, No. 19-50355 JUL 28 2021
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
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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
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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.