                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 27 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-50158

              Plaintiff-Appellee,                D.C. No.
                                                 2:10-cr-00923-SJO-31
 v.

RONDALE YOUNG, AKA Devil, AKA                    MEMORANDUM*
P-Grump,

              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 10, 2017
                               Pasadena, California

Before: PREGERSON,** REINHARDT, and WARDLAW, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            Prior to his death, Judge Pregerson fully participated in this case and
formally concurred in this disposition after deliberations were complete.
      On August 2, 2009, alleged Pueblo Bishops Bloods gang member Jesse

McWayne was killed during a drive-by shooting in the Pueblo Del Rio Housing

Projects in South Los Angeles. When a responding officer arrived at the scene, he

heard someone in the crowd say, “It was 38.” Just forty minutes later, at a carwash

in nearby 38th Street gang territory, two men exited a black Chrysler and shot and

killed Francisco Cornelio. Detectives suspected that Rondale Young was involved

in the shooting because video surveillance and eyewitness identifications indicated

that the vehicle used in the carwash shooting belonged to Helen Young, Rondale’s

mother, and he was charged and convicted.

      Rondale Young now appeals his jury trial convictions for conspiracy to

violate the Racketeer Influenced and Corrupt Practices Act (RICO), conspiratorial

and substantive murder under the Violent Crimes in Aid of Racketeering (VICAR)

statute, and use of a firearm in furtherance of a crime of violence. Because several

inculpatory statements were admitted into evidence in violation of Miranda and the

Confrontation Clause, and the district court erroneously instructed the jury on the

elements of RICO, we vacate the convictions and remand.

      1.     Young argues that the district court erred in admitting hearsay

statements made by alleged Pueblo Bishops gang member Shane Tresevant, in

violation of the Confrontation Clause. During trial, Detective Calzadillas testified


                                          2
that Tresevant told a detective that he saw Young and Anthony Gabourel get into

Young’s mother’s vehicle shortly after Jesse McWayne was shot. Detective

Calzadillas also testified that Tresevant told a detective that Gabourel returned to

the Pueblo Del Rio Housing Projects about an hour later and said they “got one.”

When the prosecutor asked Detective Calzadillas what he understood “got one” to

mean based on his training and experience with gangs, Detective Calzadillas

replied, “That they had shot somebody in retaliation.”

      Neither Gabourel nor Tresevant testified at trial. The statements were

admitted over defense counsel’s hearsay and Confrontation Clause objections. The

government concedes that the district court erred in admitting the statements, but

argues that the error was harmless. We disagree.

      The government bears the burden of showing that a Confrontation Clause

error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S.

18, 24 (1967). In evaluating this issue, we consider “the importance of the

witness’[s] testimony to the prosecution’s case, whether the testimony was

cumulative, . . . and, of course, the overall strength of the prosecution’s case[.]”

See United States v. Esparza, 791 F.3d 1067, 1074 (9th Cir. 2015) (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). “Even when the

government’s case is ‘strong,’ a Confrontation Clause violation is not harmless


                                           3
where the erroneously admitted evidence could have ‘significantly altered the

evidentiary picture.’” Id. (quoting United States v. Bustamante, 687 F.3d 1190,

1195 (9th Cir. 2012)).

      Here, there was limited evidence of Young’s involvement in the shooting.

Besides the Tresevant hearsay statements, the other evidence that allegedly placed

Young at the scene of the crime included (1) Young’s mother’s statement to police

that her son had her car on the morning of the murder; (2) Young’s inculpatory

statements to police, which, as discussed below, were obtained in violation of

Miranda; and (3) video surveillance that showed Young’s mother’s car (though not

Young) at the crime scene. Eyewitnesses at the crime scene did not visually

identify Young, and Gabourel admitted that he and three others (including

Tresevant) were in the car on the day of the murder, but he did not implicate

Young.

      The evidence of Young’s gang involvement was also minimal. The motive

for the shooting, an essential element under VICAR, was predominantly

established by Detective Calzadillas’s testimony that the “got one” remark

indicated a retaliatory, gang-related motive. The only other evidence directly

linking Young to gang-affiliated conduct were his boasts to a jail informant, which




                                         4
at best ambiguously tie Young to the gang and could instead indicate that Young

had disavowed “putting in work” for the gang by the time of the offense.

      Eliminating Tresevant’s hearsay statements undermines the likelihood that

the jury would have found that Young was present in the car when the murder

occurred or that Young had a gang-related motive for participating. However, we

need not decide whether the Confrontation Clause violation was harmless on its

own because we conclude that the Confrontation Clause and Miranda violations

were collectively prejudicial.

      2.     Young argues that detectives engaged in a deliberate two-step

interrogation process when they questioned him on September 22, 2009, in

violation of Miranda v. Arizona, 384 U.S. 436 (1966), and Missouri v. Seibert, 542

U.S. 600 (2004).

      A “deliberate two-step interrogation” occurs when an officer deliberately

waits until the suspect has confessed, then gives Miranda warnings and has the

suspect repeat his confession. Id. at 1158–60. Under Seibert, if officers

deliberately employ the two-step technique, any post-warning statement must be

suppressed unless sufficient curative measures are taken to ensure that the

midstream Miranda warnings are genuinely understood. Reyes v. Lewis, 833 F.3d

1001, 1029 (9th Cir. 2015). Curative measures may include “a substantial break in


                                          5
time and circumstances between the pre-warning statement and the Miranda

warning,” or “an additional warning that explains the likely inadmissibility of the

pre-warning custodial statement.” Seibert, 542 U.S. at 622 (Kennedy, J.,

concurring).

      The record shows that detectives deliberately engaged in a two-step

interrogation. Detectives interrogated Young at the police station for at least

twenty minutes without providing any Miranda warnings. Only after Young

confessed that he drove the vehicle linked to the shooting (his mother’s car) did the

detectives finally give him Miranda warnings. Although the pre-warning part of

the interview was not recorded, Young’s post-warning statements appear to be

largely repetitive of his pre-warning statements. For example, in response to a

question about who was in the car with him, Young said, “I already told you that . .

. .” This suggests that the detectives were asking substantive questions about the

investigation before the recording device was turned on and before they gave the

Miranda warnings.

      Moreover, the detectives did not take any curative measures. They gave

Young only a short break between the pre- and post-warning interrogations. There

is no evidence that the detectives told Young that his prior statements would likely

be inadmissible. The post-warning interrogation occurred in the same location as


                                          6
the pre-warning interrogation, and the same detectives carried out both

interrogations.

        We reject the government’s contention that the detectives delayed giving the

Miranda warnings so that they could build rapport with Young and get

“biographical” information. The police arrested Young during his truck route and

transported him to the police station to be questioned about the murder. By that

time, Detective Calzadillas knew that (1) the car at the scene matched Young’s

mother’s car; (2) Young’s mother said that only she and her son drove the car and

that he was driving it on the morning of the shooting; and (3) at least one witness

(Tresevant) had identified Young as being involved. The detectives had no excuse

to delay giving the Miranda warnings when they interviewed Young, one of the

few suspects they had at that point in the investigation. Cf. Reyes, 833 F.3d at

1031.

        3.    Young argues that the district court misinstructed the jury on the

elements of RICO, 18 U.S.C. § 1962(d), and VICAR, 18 U.S.C. § 1959(a)(1), (5).

Here, Young objected to the RICO jury instruction but did not specify the grounds

for his objection, and Young did not object to the VICAR instruction. We

therefore review his claim for plain error. Palmer v. Hoffman, 318 U.S. 109, 119

(1943).


                                           7
      Young argues that the RICO instruction did not accurately state the

culpability required for a criminal conviction under RICO. We agree. The district

court instructed the jury that the government must prove that Young “conspired

and agreed” that he “or a co-conspirator, would conduct or participate, either

directly or indirectly, the conduct of the affairs of the enterprise through a pattern

of racketeering activity.” The district court’s instructions obscure the elements of

the crime because they do not explain what the defendant, not a co-conspirator,

needed to agree to do in order to be found criminally culpable as a conspirator. A

defendant is guilty of conspiracy to violate RICO only if the evidence shows that

the defendant knowingly and personally “agreed to facilitate a scheme which

includes the operation or management of a RICO enterprise.” See United States v.

Fernandez, 388 F.3d 1199, 1230 (9th Cir. 2004) (internal quotation marks

omitted). Because the jury instructions are contrary to Fernandez, they are plainly

erroneous.

      We disagree, however, with Young’s argument that the district court erred in

instructing the jury on the motive element under VICAR. The VICAR offense

requires a murder to have been committed “for the purpose of gaining entrance to

or maintaining or increasing position in an enterprise engaged in racketeering

activity . . . .” 18 U.S.C. § 1959. Implementing our decision in United States v.


                                           8
Banks, 514 F.3d 959, 969 (2008), the district court instructed the jury that the

government must prove that enhancing Young’s status in the enterprise was a

“substantial purpose” for the murders. Young argues that Burrage v. United

States, 134 S. Ct. 881 (2014), a case decided after Young’s trial, overrules Banks

and should have required the government to prove that Young’s motive to enhance

his status was a “but for” cause of the murders. Without deciding the scope of

Burrage or its applicability to the motive element in VICAR, we conclude that the

district court’s instruction was not plainly erroneous because Burrage’s

interpretation of the causation element in the Controlled

Substances Act is not obviously applicable in the VICAR context.

      4.     Collectively, the Confrontation Clause, Miranda violations, and the

erroneous jury instructions were not harmless. Without the Tresevant hearsay

statement and Young’s statement that he was driving his mother’s car near the

carwash at the time of the shooting, the government’s case was weak. Young’s

mother’s statement that her son had the car on the morning of the murder does not

preclude the possibility that Young lent the car to another person and does not

definitively place Young at the scene of the crime. Additionally, Anthony

Gabourel admitted to being in the murder vehicle and named his companions

(including Tresevant), none of whom was Young.


                                          9
      Nor is the error in the RICO jury instruction harmless because, at trial,

Young heavily contested the government’s assertion that Young had personally

agreed to facilitate a racketeering scheme. Young’s counsel pointed to a complete

absence of evidence that Young had any connection with the Pueblo Bishop

Bloods’s actual gang activity, and recordings captured Young saying that he had

“learned a lesson” and had “stopped hanging out” with the gang. Because we

cannot “conclude beyond a reasonable doubt that the jury verdict would have been

the same absent the error,” Neder v. United States, 527 U.S. 1, 17 (1999), the

erroneous RICO instruction was not harmless.

      Absent the erroneously admitted evidence, the jury would have had no

evidence that contravened Gabourel’s account. Because we cannot be certain

“beyond a reasonable doubt that the error[s] complained of did not contribute to

the verdict obtained,” Chapman, 386 U.S. at 24, we vacate Young’s convictions

and remand for a new trial.

      VACATED AND REMANDED.




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