                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                     No. 03-10222
                Plaintiff-Appellee,
               v.                                D.C. No.
                                              CR-92-00260-DJL
PETER CHONG,
                                                 OPINION
             Defendant-Appellant.
                                         
        Appeal from the United States District Court
          for the Northern District of California
        D. Lowell Jensen, District Judge, Presiding

                  Argued and Submitted
         March 15, 2005—San Francisco, California

                     Filed August 18, 2005

    Before: Sidney R. Thomas and Raymond C. Fisher,
    Circuit Judges, and James L. Robart, District Judge.*

                    Opinion by Judge Fisher




 *The Honorable James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.

                               10917
10920               UNITED STATES v. CHONG




                         COUNSEL

William L. Osterhoudt and Frank S. Moore, Law Offices of
William L. Osterhoudt, San Francisco, California; Alan P.
Caplan, San Francisco, California, for the defendant-
appellant.

Brian J. Stretch, Assistant United States Attorney, Oakland,
California, for the plaintiff-appellee.


                          OPINION

FISHER, Circuit Judge:

   Peter Chong appeals his conviction on murder-for-hire and
extortion counts stemming from his involvement with the Wo
Hop To gang in Northern California. Chong’s main conten-
tion is that the jury had insufficient evidence to convict him
for his role in the attempted murder of a leader of a rival gang
in Boston. He argues that the government failed to link him
to the attempted murder or demonstrate that he offered any-
thing of pecuniary value to the hitmen in exchange for com-
mission of the murder — a required element of the offense.

   We conclude that the jury had insufficient evidence to con-
vict Chong on the murder-for-hire offense because the gov-
                   UNITED STATES v. CHONG               10921
ernment failed to prove that Chong — or one of his co-
conspirators — promised anything of pecuniary value to the
hitmen as a quid pro quo for murdering a gang rival.

                              I.

  Chong came to the United States in 1982 purportedly to set
up and promote a Chinese opera in this country. In the late
1980s and 1990s, Chong became involved with illicit gang
activity through his membership in — and eventual leadership
of — the Wo Hop To, an organized crime gang in Northern
California.

   Chong and his gang engaged in loan sharking and exerted
control over local gambling dens and restaurants, receiving
discounts and collecting fees in exchange for leaving those
establishments alone. Witnesses described Chong as “the per-
son in charge of Wo Hop To” and testified that Chong had
proclaimed that he was in control of Chinatown.

   Chong wanted to expand the gang’s control base to the East
Coast and eventually dominate organized crime activity there.
He was part of a plan to unite various rival gangs under an
umbrella organization, which he would control. In furtherance
of that end, Chong sent an underling to establish a foothold
in Boston, which was controlled by gang rival Bike Ming.
When the underling was killed before he could accomplish
this task, Chong was very angry and met with gang leaders in
the Bay Area “to take care of this matter.” According to one
gang leader, that meant “to get Bike Ming down, to get him
killed.” Chong also told an underling that if Ming was in the
way “to take care of him.” Subsequently, an attempt was
made on Ming’s life. Chong denied any involvement with the
plot to kill Ming.

   Chong was convicted by a jury for participating in a Racke-
teer Influenced and Corrupt Organization (RICO), 18 U.S.C.
§ 1962(c), and a RICO conspiracy, 18 U.S.C. § 1962(d). He
10922               UNITED STATES v. CHONG
was also convicted of murder-for-hire counts, 18 U.S.C.
§§ 371, 1958, heroin conspiracy, 21 U.S.C. § 846, and various
extortion counts, 18 U.S.C. §§ 892, 894, 1951. Chong moved
for acquittal at the end of his trial. The district court granted
his motion as to the heroin conspiracy charge, but denied the
motion as to the remaining counts.

   On appeal, Chong challenges the evidence related to two
sets of counts and the introduction and exclusion of certain
testimony. We affirm the district court on the bulk of these
claims in a separate memorandum disposition filed concur-
rently with this opinion. Our concern here is whether the jury
had sufficient evidence that the hitmen were promised any-
thing of value in exchange for the murder of Bike Ming, a
critical element of the interstate murder-for-hire statute, 18
U.S.C. § 1958.

                               II.

   Evidence is sufficient to sustain a conviction if, “viewing
the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.” United States
v. Nelson, 137 F.3d 1094, 1103 (9th Cir. 1998).

                              III.

  The federal murder-for-hire statute provides for conviction
of a defendant who:

    travels in or causes another (including the intended
    victim) to travel in interstate or foreign commerce,
    or uses or causes another (including the intended vic-
    tim) to use the mail or any facility of interstate or
    foreign commerce, with intent that a murder be com-
    mitted in violation of the laws of any State or the
    United States as consideration for the receipt of, or
    as consideration for a promise or agreement to pay,
                     UNITED STATES v. CHONG               10923
       anything of pecuniary value, or who conspires to do
       so . . . .

18 U.S.C. § 1958. Chong was also convicted under 18 U.S.C.
§ 371, which makes it a crime for two or more persons to con-
spire “to commit any offense against the United States . . . and
one or more of such persons do any act to effect the object of
the conspiracy.” The elements of a conspiracy are: “1) an
agreement to accomplish an illegal objective, 2) coupled with
one or more acts in furtherance of the illegal purpose, and 3)
the requisite intent necessary to commit the underlying sub-
stantive offense.” United States v. Pemberton, 853 F.2d 730,
733 (9th Cir. 1988) (adding that the agreement can be inferred
from circumstantial evidence).

   Chong contends that no rational juror could have found —
based on the evidence presented — that he entered into an
agreement to cause the murder of Bike Ming or that he or any
member of the alleged conspiracy paid or agreed to pay any-
thing of pecuniary value for the attempted murder. We
address these elements of the offense in turn.

  1.    Causing another to travel interstate with intent to
        commit murder

   The main evidence linking Chong to the murder of Bike
Ming came from his lieutenants Wayne Kwong and Raymond
Chow, both of whom had pled guilty to charges related to
their criminal gang activity. We summarize their relevant tes-
timony:

   Kwong came to the United States in 1979 from mainland
China and settled in Boston. He met Peter Chong and Ray-
mond Chow when he went to San Francisco to escape from
the police after he was involved in a shooting in Boston. He
called Chong “uncle,” as did other individuals who knew
Chong in the context of organized crime activity. When intro-
duced to Chong, Kwong was told “that uncle is the person in
10924               UNITED STATES v. CHONG
charge of Wo Hop To” and that Raymond Chow was the “Big
Brother of Hop Sing Tong,” another gang in the Bay Area.
Chong paid for Kwong’s hotel bill, sheltered him in San Fran-
cisco and gave him money. Chong told Kwong that he and
Wo Hop To controlled Chinatown and took a share of profit
of the gambling dens in the city. Chow also told Kwong that
Chong controlled Chow’s Hop Sing Tong gang members.

   Raymond Chow came to the United States at the age of 16
and joined the Hop Sing Tong gang in San Francisco. Chow
became involved in selling heroin, extortion and racketeering
and was arrested for armed robbery. He met Peter Chong after
Chow’s second release from prison in 1989. Chong told Chow
that he was a member of Wo Hop To and had done work in
the casino, heroin and cocaine business. The pair talked about
forging a relationship between their two gangs, and the orga-
nizations eventually united.

   The three leaders — Chong, Kwong and Chow — then dis-
cussed forming an umbrella organization called Tien Ha Wui,
which translates into “Whole Earth Association,” to oversee
the individual gangs. Chong and Kwong also discussed
expanding their dominance by taking over the markets in Bos-
ton. Chow said that Kwong had discussed the need to kill
Bike Ming — a leader of the rival “Ping On” gang in Boston
and a stumbling block in the plan to take over the streets of
Chinatown in Boston. Kwong told Chong and Chow “that
Bike Ming was in the way over there.” According to Kwong,
Chong “said that if he was in the way, kicked (sic) him out.”
Chong “meant . . . to take care of him. . . . He said that if he
was in the way, take care of him.” Id.

   Chow said Chong had sent someone previously “to get the
territory of Boston.” “The job was to take over the Boston
town and open up a gambling place.” After one of Chong’s
underlings was shot in Boston while trying to establish a foot-
hold, Chong discussed revenge. “[Chong] was very angry,
and he said try to see . . . how to get someone to go up there
                   UNITED STATES v. CHONG               10925
to take care of this matter.” When asked what taking care of
the matter meant, Chow testified, “that means to get Bike
Ming down, to get him killed, whoever that were involved
with this incident.”

   Kwong was present when another underling told Chong
that a group of gang members almost “took care of Bike
Ming” but failed. Chong said nothing in response, according
to Kwong, but he “nodded, acknowledged him, and walked
away.” Kwong testified that he, Chow and Chong discussed
how it would be easier to get underlings from another city to
kill Bike Ming. After another failed effort by a group of
underlings, Kwong reached out to a young Hop Sing Tong
underling named Brandon Casey (who would emerge as the
key figure in the murder-for-hire scenario). Kwong advised
Casey of a job in Boston that needed to be completed. The
plan called for Casey and a few cohorts to shoot Ming at a
restaurant. However, when the group arrived at the restaurant
in March 1992, they abandoned their plan because a police
officer was present.

   The recollections presented by these key witnesses about
the attempt on Bike Ming’s life was bolstered by evidence of
the general custom and practice of the Wo Hop To and other
gangs in San Francisco. Wo Hop To operated as a criminal
enterprise with a structured hierarchy. Money collected from
the gambling dens and loan sharking became part of the
shared funds used to subsidize the organization’s costs,
including the payment of its underlings. Gang members also
were commissioned to complete specific missions. For exam-
ple, Casey testified about an earlier Wo Hop To-orchestrated
arson, in which he was asked to assist and was told by a third
party, “Peter [Chong]’s going to pay real good.”

   Additionally, the hierarchical structure of the gang meant
that orders came from the top down, with Chong operating at
the pinnacle of the group. Chong delegated to his lieutenants
the management of the day-to-day operations, such as over-
10926              UNITED STATES v. CHONG
seeing the collection of money from gambling dens and loan-
sharking. Directions to complete missions trickled down
through the ranks to the underlings who carried them out.
Oakland Police Department Sergeant Harry Hu, an expert on
the structure of Asian organized crime groups in the Bay
Area, testified that the leader of a gang probably would not be
engaged physically in the specific illegal activities of the
group but instead would order underlings to commit the acts.
Further, while the underlings would communicate with the
seniors who gave them orders, “normally, they do not go all
the way to the top . . . [b]ecause the leaders insulate them-
selves, and foot soldiers do not need to know all the details
of operations,” Hu explained. For example, Casey said he
never actually met Chong and typically received his directions
from other mid-level leaders.

   [1] We conclude that the evidence adduced was sufficient
to establish that Chong caused the murder-for-hire of Bike
Ming. We rely on the Pinkerton doctrine, which holds a co-
conspirator vicariously liable for reasonably foreseeable sub-
stantive crimes committed by a co-conspirator in furtherance
of the conspiracy. See Pinkerton v. United States, 328 U.S.
640, 647-48 (1946). To establish Pinkerton liability, the pros-
ecution must demonstrate that: “(1) the substantive offense
was committed in furtherance of the conspiracy; (2) the
offense fell within the scope of the unlawful project; and (3)
the offense could reasonably have been foreseen as a neces-
sary or natural consequence of the unlawful agreement.”
United States v. Fonseca-Caro, 114 F.3d 906, 908 (9th Cir.
1997) (citations and internal quotation marks omitted).

   [2] Here, Chong’s underlings were commissioned by his
lieutenants to travel from San Francisco to Boston for the pur-
pose of killing Ming, which was the objective of the conspir-
acy, and Chong could reasonably have foreseen that Chow
would direct the underlings to commit the murder. Even if
Chong did not give an explicit order to kill Ming, Chong
                    UNITED STATES v. CHONG                 10927
agreed with Kwong’s assessment that getting rid of Ming was
essential for expanding the gang’s presence to the East Coast.

   [3] The application of conspiracy liability is bolstered by
the routine practices of the Wo Hop To, in which Chong regu-
larly delegated tasks to his subordinates for them to manage.
Thus, the record before us provides sufficient evidence from
which a jury could have found that Chong or his co-
conspirators set in motion a series of events, resulting in his
underlings traveling to Boston for the purpose of killing Bike
Ming.

  2.   Promise or agreement to pay anything of pecuniary
       value

   [4] To convict under the murder-for-hire statute, however,
the government must further prove that Chong gave or prom-
ised something of pecuniary value in exchange for seeking
Ming’s murder. See 18 U.S.C. § 1958 (providing that a person
commits murder-for-hire by causing another to travel inter-
state to commit murder “as consideration for the receipt of, or
as consideration for a promise or agreement to pay, anything
of pecuniary value”). “The intent to pay someone to commit
murder is . . . a critical element of ‘murder-for-hire.’ ” United
States v. Ritter, 989 F.2d 318, 321 (9th Cir. 1993). According
to the legislative history of § 1958, Congress intended the
statute to punish “[b]oth the man who ordered the murder and
the ‘hit man.’ ” S. Rep. 98-225, at 306 (1983). As for the
pecuniary component, “[t]he murder must be carried out or
planned as consideration for the receipt of ‘anything of pecu-
niary value.’ This term is defined to mean money, a negotia-
ble instrument, a commercial interest, or anything else the
primary significance of which is economic advantage . . . .”
Id.

  [5] This circuit has not specifically interpreted the language
of § 1958’s pecuniary value requirement. We did, however,
hold in Ritter that the government failed to prove that the
10928               UNITED STATES v. CHONG
defendant, who had supplied a pipe bomb to carry out a mur-
der, had “made an agreement or had the requisite intent to
violate Section 1958.” 989 F.2d at 321. Although the defen-
dant was paid for the pipe bomb, he was not privy to the
arrangements whereby the murderer himself would be com-
pensated for planting the bomb; thus, “Ritter did not know
that anyone would be paid to commit murder.” Id.

   [6] Other circuits have construed the pecuniary value
requirement strictly, concluding that the element of the
offense is not established in the absence of a clear agreement
to exchange something of value for the commission of a mur-
der. The Tenth Circuit, in United States v. Wicklund, inter-
preted the “in consideration for” language as requiring
“consideration in the traditional sense of bargained for
exchange” — a quid pro quo payment made either before or
after the murder. 114 F.3d 151, 154 (10th Cir. 1997). The
court rejected the government’s claim that the pecuniary con-
sideration element could be met where the defendant merely
expected that his wife might benefit if he had her former hus-
band killed.

   In United States v. Frampton, the Second Circuit rejected
the government’s suggested inference that the defendant
enlisted a professional hitman to commit murder in exchange
for a “favor.” 382 F.3d 213 (2d Cir. 2004). At trial, one of the
conspirators was asked what consideration the hitman
expected to receive for the murder. Id. at 218. He said: “If he
needed a favor from me, he’d get a favor.” Asked what this
favor would be, the defendant responded: “Anything. Any-
thing he need.” Id. The court held that “consideration in the
form of a ‘favor’ is insufficient to support a conviction” under
the statute, “at least in the absence of evidence suggesting that
either party had an understanding as to the form that it would
actually take.” Id. at 219.

  [7] We agree with our sister circuits that there must be evi-
dence that the hitmen clearly understood they would receive
                      UNITED STATES v. CHONG                     10929
something of pecuniary value in exchange for performing the
solicited murderous act. That evidence is lacking here. The
government argues that Brandon Casey and the other under-
lings assigned the task of murdering Bike Ming were each
promised $100, satisfying the pecuniary value element of the
statute. The government contends that the evidence demon-
strated that the custom and practice of the Wo Hop To was to
compensate members who carried out special assignments,
even if the underlings did not receive significant payment for
completing such missions. The government asks us to infer
therefore that the $100 given to Casey was in exchange for
the murder of Bike Ming.

   [8] We decline to do so. The jury did not have sufficient
evidence from which to find that the $100 constituted com-
pensation for the murder-for-hire, given the absence of any
overt agreement or understanding between Casey and Chong
or Chong’s co-conspirators. Even if the $100 could be suffi-
cient consideration despite its de minimis amount, the evi-
dence does not support the government’s claim that this
money was promised to Casey in return for murdering Bike
Ming.

   Casey’s testimony was equivocal as to whether he actually
received $100. He acknowledged that the job was something
he knew that Raymond Chow wanted done. When then asked
if he was paid $100 by Chow, Casey said “I think he did.”
Nonetheless, we assume the jury had enough to find that
Casey got the $100.1 But this is not enough to establish that
Casey knowingly agreed to travel across the country to mur-
der Ming in exchange for the money. Indeed, Casey did not
know the purpose for which he was being sent to Boston
before he left San Francisco. Rather, there was “a meeting and
  1
    Casey also acknowledged that someone provided him with airline tick-
ets to Boston and said he thought that someone else had bought their
return tickets from Boston. The government does not argue the tickets
were compensation or consideration.
10930              UNITED STATES v. CHONG
volunteers were asked . . . to do a job. No more specifics than
that.” Casey knew the job was dangerous and violent; he was
aware before they left that they were bringing guns to com-
plete the task. However, it was not until after Casey and the
other underlings had arrived in Boston and shortly before the
murder attempt that Kwong told Casey “that we were there to
kill someone . . . a guy named Bike Ming.”

   [9] None of this shows that Casey entered into an agree-
ment or quid pro quo deal with the Wo Hop To lieutenants
that he would kill Ming in return for some form of pecuniary
consideration, as the statute requires. See Frampton, 382 F.3d
at 217 (“The federal murder-for-hire statute proscribes a very
limited category of behavior; only those instances in which
one party agrees to commit a murder in exchange for another
party’s provision (or future promise) of payment are punish-
able under § 1958.”); United States v. Hernandez, 141 F.3d
1042, 1057 (11th Cir. 1998) (holding that the language of the
statute “undeniably contemplates a quid-pro-quo (or at least
the promise of such) between the parties to the transaction,
the murderer and the solicitor”); Wicklund, 114 F.3d at 154
(defining consideration as a “bargained for exchange”).

   [10] We place some weight on the government’s failure to
ask Casey directly (or even Chong’s lieutenants) whether he
was promised or received any consideration for attempting the
murder of Bike Ming. As the Eleventh Circuit observed in
Hernandez, “it is the motive of the murderers that is relevant
to whether the murder occurred in return for a promise to pay
something of pecuniary value.” 141 F.3d at 1059. Thus,
Casey’s understanding of what compensation or consideration
he would receive — and if the $100 was intended as payment
— was critical to the murder-for-hire charge, but the govern-
ment did not ask the relevant questions. Notably, the govern-
ment did question Casey about other instances in which he
earned money or other benefits for carrying out particular
missions, such as committing robberies or sharing in the pro-
ceeds of collection jobs. In some instances, particularly spe-
                      UNITED STATES v. CHONG                     10931
cial missions, like the proposed Wo Hop To arson, Casey was
told that completing the job would result in a specific finan-
cial reward.

   [11] As to the Bike Ming assignment, however, the evi-
dence shows only that Casey volunteered for a dangerous
assignment and wound up getting some walking-around
money in the course of traveling to Boston.2 Money to cover
incidental expenses rather than as compensation for carrying
out the murder-for-hire does not meet § 1958’s requirements.
See Ritter, 989 F.2d at 321-22 (holding that although defen-
dant was paid $70 to build a bomb, the money was not pay-
ment for commission of the murder). On the record here, we
hold that the jury had insufficient evidence to find that Casey
agreed to travel to Boston to kill Bike Ming in exchange for
something of pecuniary value offered by Chong or his co-
conspirators. Accordingly, we reverse Chong’s conviction on
the counts of murder-for-hire and conspiracy to commit
murder-for-hire and remand to the district court for resentenc-
ing on the counts we have otherwise affirmed in a separate
disposition.

  REVERSED AND REMANDED for resentencing.




  2
   Nor did the government solicit evidence that Casey was promised some
other tangible benefit to be conferred on him through the gang structure
in exchange for commission of the murder.
