NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50185
Plaintiff-Appellee, D.C. No.
2:10-cr-00351-ODW-2
v.
JUAN GIL, AKA Nito, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 14-50193
Plaintiff-Appellee, D.C. No.
2:10-cr-00351-ODW-1
v.
ARMANDO BARAJAS,
Defendant-Appellant.
Appeals from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted November 17, 2017
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: TASHIMA and HURWITZ, Circuit Judges, and SEEBORG,** District
Judge.
Juan Gil and Armando Barajas were convicted of racketeering conspiracy in
violation of 18 U.S.C. § 1962(d). Barajas was also convicted of conspiracy to
distribute narcotics in violation of 21 U.S.C. § 846. Both appeal their convictions
and sentences. We affirm.
1. An application for a wiretap must contain “a full and complete statement as
to whether or not other investigative procedures have been tried and failed or why
they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18
U.S.C. § 2518(1)(c). And, a court authorizing a wiretap must find that “normal
investigative procedures have been tried and have failed or reasonably appear to be
unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(3)(c).
Wiretaps authorized by a state court are not “other” or “normal” investigative
procedures under § 2518. See United States v. Reed, 575 F.3d 900, 908 (9th Cir.
2009) (noting that the purpose of the statutory requirement “is to ensure that
‘wiretapping is not resorted to in situations where traditional investigative
techniques would suffice to expose the crime’” (citation omitted)). The district court
therefore did not err in admitting evidence from the federal wiretap despite the
**
The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
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previous state-authorized wiretaps.
2. The district court did not abuse its discretion in admitting David Navarro’s
testimony. A witness’s “interpretations of ambiguous conversations based upon his
direct knowledge” are appropriate lay testimony under Federal Rule of Evidence
701. United States v. Freeman, 498 F.3d 893, 904 (9th Cir. 2007).
3. The district court did not abuse its discretion in admitting packages seized
during the strip search of a prisoner. The government offered evidence that the gang
to which defendants belonged regularly smuggled drugs into the prison, and that one
package seized in the strip search was intended to be delivered to Gil.
4. During deliberations, the jury submitted this question: “Threat as used in
the definition of extortion does it have to be explicit or implied?” The district court
replied: “A threat can be explicit or implied. This response is only a part of the jury
instructions and you should consider it equally with the earlier instructions.” The
court’s response was not “misleading, unresponsive, or legally incorrect.” United
States v. Frega, 179 F.3d 793, 810 (9th Cir. 1999). Nor did the court abuse its
discretion by declining to define “implied threat.” See United States v. McIver, 186
F.3d 1119, 1130 (9th Cir. 1999), overruled on other grounds as recognized by
United States v. Pineda–Moreno, 688 F.3d 1087, 1090–91 (9th Cir. 2012).
5. Gil’s conspiracy conviction was supported by sufficient evidence. A
witness testified that Gil knew that payments he received were dependent on the
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success of the alleged conspiracy. “The credibility of witnesses is a matter for the
jury, not an appellate court.” Lyda v. United States, 321 F.2d 788, 794 (9th Cir.
1963). And, Gil acknowledged in several telephone calls that payments to his wife
were dependent on the continued success of the conspiracy.
6. To determine whether a RICO conspiracy qualifies as a crime of violence
or controlled substance offense under the Sentencing Guidelines, we look to the
predicate offenses. See United States v. Scott, 642 F.3d 791, 801 (9th Cir. 2011) (per
curiam). The government presented ample evidence of qualifying predicate
offenses, see U.S.S.G. § 4B1.2(a)(2) (defining “crime of violence” and listing
“extortion”); id. § 4B1.2(b) (defining “controlled substance offense”); id. § 4B1.2
app. n.1 (explaining that 21 U.S.C. § 843(b) is a controlled substance offense), and
the district court reasonably could have concluded that Gil committed one of these
offenses. The court therefore did not err in concluding that Gil committed a crime
of violence. See United States v. Mercado, 474 F.3d 654, 656–57 (9th Cir. 2007).
7. The district court did not err in finding that Gil’s 2005 felony conviction for
distribution of methamphetamine qualifies as a prior controlled substance offense
for sentencing purposes. Gil was convicted of that offense “prior to the last overt
act of the instant offense.” U.S.S.G. § 2E1.1 app. n.4.
8. The district court did not err in finding that Barajas’ prior conviction for a
violation of California Penal Code § 459 qualifies as a crime of violence. Section
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459 “categorically falls within section 4B1.2(a)(2)’s ‘residual clause,’ in that it
‘involves conduct that presents a serious potential risk of physical injury to
another.’” United States v. Park, 649 F.3d 1175, 1177 (9th Cir. 2011) (citation
omitted). Neither Descamps v. United States, 133 S. Ct. 2276 (2013), nor Johnson
v. United States, 135 S. Ct. 2551 (2015), is “clearly irreconcilable” with Park. See
Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). And, Barajas’
vagueness challenge to the residual clause is foreclosed by Beckles v. United States,
137 S. Ct. 886, 895 (2017).
In each of these appeals, the judgment of conviction and the sentence are
AFFIRMED.
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