                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 03 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50121

              Plaintiff - Appellee,              D.C. No. 8:05-cr-00107-JVS-2

 v.
                                                 MEMORANDUM*
FRANCISCO RODRIGUEZ, AKA
Francisco Ramon Rodriguez Medina,
AKA Francisco Rodriguez Medina, AKA ,
Francisco Ramon Rodriguez, AKA Seal B,
AKA Trigger, AKA Francisco Trigger,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                     Argued and Submitted November 2, 2015
                              Pasadena, California

Before: SCHROEDER, PREGERSON, and FRIEDLAND, Circuit Judges.

      Francisco Rodriguez appeals his convictions for RICO conspiracies to

commit murder, extortion, and drug trafficking in violation of 18 U.S.C. § 1962(d),



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and for VICAR conspiracy to murder rival gang members in violation of 18 U.S.C.

§ 1959(a)(5). After the first trial, this court reversed the VICAR and RICO

convictions for instructional error after the jury had acquitted Rodriguez of the

remaining counts. United States v. Rodriguez, 359 F. App’x 833, 834–35 (9th Cir.

2009) (unpublished). The second trial resulted in a hung jury.

      In this third trial, as in the earlier trials, Rodriguez’s defense was

entrapment. The government offered predisposition evidence of Rodriguez’s

shooting of two brothers, in an incident referred to as the Petatan shootings.

Rodriguez offered the testimony of a psychiatrist, Dr. Stewart, in response. He had

testified in the first trial that Rodriguez suffered from PTSD during the Petatan

shootings and therefore had been incapable of possessing the requisite intent for

murder or attempted murder. At this third trial, the district court admitted the

Petatan shooting evidence over Rodriguez’s objection and barred Dr. Stewart from

testifying to Rodriguez’s mental state at the time of the shootings. On appeal,

Rodriguez argues that the rulings together constitute reversible error. We agree.

      Because Rodriguez was acquitted of all charges based on the Petatan

shootings, their relevance to Rodriguez’s predisposition to conspire to murder was

marginal at best. Once the court decided to admit the objected-to shooting

evidence, it was error not to admit Dr. Stewart’s expert testimony. Rodriguez’s


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mental state and capacity to formulate intent remained at issue in the case. He was

charged with conspiracies to commit murder and other gang related offenses, and

because his defense was entrapment, Rodriguez’s predisposition to commit the

crimes charged was a key issue. United States v. Davis, 36 F.3d 1424, 1430 (9th

Cir. 1994). Because the government was permitted to put Rodriguez’s mental state

in committing the Petatan shootings at issue with respect to predisposition,

Rodriguez was entitled to put on in his defense Dr. Stewart’s testimony about his

mental state at the time of those shootings.

      The remainder of the issues raised by Defendant are not meritorious, but we

touch on them briefly in the event that there is another trial.

      With respect to predisposition, the district court revised the Ninth Circuit

Model Jury Instruction to try to account for the fact that inducement by the

informant may have occurred at different times in relation to the different crimes.

The resulting instruction told the jurors that, on the issue of predisposition, they

“may have to focus on more than one point in time” and should determine whether

Rodriguez was predisposed to commit the charged crimes “without regard to

contacts by the government agent, whenever they occurred.” We agree that this

instruction was confusing and in tension with the requirement that predisposition

be measured prior to initial contact with the government, see United States v.


                                           3
Davis, 36 F.3d 1424, 1431 (9th Cir. 1994), and we do not approve it.

Nevertheless, the correct law was reiterated eight times to the jury, and in the

context of this trial, the instruction does not constitute an independent ground for

reversal.

         Defendant also challenges the Ninth Circuit Model Jury Instruction, arguing

that it creates an objective inquiry rather than a subjective one. We have

effectively rejected this contention when we explained the instruction and

described it as creating a subjective standard. United States v. Williams, 547 F.3d

1187, 1197 (9th Cir. 2008).

         The district court did not abuse its discretion in excluding the testimony of

Ava Steaffans on the ground that she was not qualified to testify as an expert on

gangs.

         While it was error for the district court not to give a cautionary instruction

on the distinction between the government’s case agent’s lay and expert testimony,

the error was harmless because the testimony was unlikely to have affected the

verdict. See United States v. Bonilla-Guizar, 729 F.3d 1179, 1184–85 (9th Cir.

2013).

         There was no Batson error.

         The judgment of the district court is REVERSED.


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