                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 05 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 06-10643

                Plaintiff - Appellee,             D.C. No. CR-03-00042-FCD

  v.
                                                  MEMORANDUM *
JASON KEITH WALKER, aka Fade,

                Defendant - Appellant.



UNITED STATES OF AMERICA,                         No. 06-10653

                Plaintiff - Appellee,             D.C. No. CR-03-00042-FCD

  v.

SHANGO JAJA GREER,

                Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Eastern District of California
            Frank C. Damrell, Senior United States District Judge, Presiding

                          Argued and Submitted July 12, 2010
                              San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: FERNANDEZ, W. FLETCHER, and TALLMAN, Circuit Judges.

         Jason Walker and Shango Greer (collectively “Defendants”) challenge their

convictions after a jury found them guilty of conspiring to conduct the affairs of an

enterprise, an illegal street gang, through a pattern of racketeering activity in

violation of 18 U.S.C. § 1962(d). The jury also found Greer guilty of the

substantive crime of conducting the affairs of the enterprise through a pattern of

racketeering activity. See 18 U.S.C. § 1962(c). Because the parties are familiar

with the facts of this case, we do not repeat them here. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

         The district court did not abuse its gatekeeping discretion when it

determined that Vallejo Police Gang Crimes Detective Stephen Fowler’s testimony

was both reliable and relevant and thus admissible under Federal Rule of Evidence

(“Rule”) 702. See United States v. Hankey, 203 F.3d 1160, 1169–70 (9th Cir.

2000).

         Detective Fowler’s testimony regarding street intelligence was not admitted

in violation of Rule 703, because that testimony did not reveal the substance of the

conversations; Detective Fowler merely stated that he relied on these conversations

when reaching his conclusion that the Pitch Dark Family (“PDF”) was a criminal



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street gang. See Fed. R. Evid. 703 (limiting the admission of the “facts or data”

that underlie an expert’s opinion). Nor was it an abuse of discretion for the district

court to admit the substance of the co-defendants’ admissions to being PDF

members as a basis for Detective Fowler’s opinion. It was apparent at the hearings

in limine that Defendants planned to vigorously attack the basis for Detective

Fowler’s opinion—increasing the probative value of the “facts or data” underlying

his opinion—and the district court took extra precautions to limit the prejudicial

effect of its admission. See Fed. R. Evid. 703 advisory committee’s note

(recognizing that an adversary’s attack on the basis for an expert’s opinion may

shift the balancing analysis required by Rule 703 and may also allow the proponent

to introduce the evidence to “remove the sting” of the anticipated attack). The

district court properly gave an adequate limiting instruction before Detective

Fowler’s opinion testimony directing the jury that it could not consider the basis

for his opinion as substantive evidence. See Paddack v. Dave Christensen, Inc.,

745 F.2d 1254, 1262 (9th Cir. 1984).

      Detective Fowler’s testimony also did not violate Defendants’ Sixth

Amendment right to confrontation. His testimony regarding modus operandi based

on his years of gathering street intelligence on gang activities, coupled with the co-

defendants’ admissions, was introduced only as a basis for the opinion and not for


                                           3
the truth of the information asserted therein—it was therefore not hearsay. See

Fed. R. Evid. 801. Because the testimony was not hearsay, it did not implicate the

Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004)

(citing Tennessee v. Street, 471 U.S. 409, 414 (1985)).

      The admission of Charles McClough’s testimony pertaining to three

conversations in which Defendants did not deny their participation in an alleged

predicate racketeering act of murder is not reversible error. The district court

certainly did not abuse its discretion when it admitted the testimony about the third

challenged conversation. See United States v. Sears, 663 F.2d 896, 904 (9th Cir.

1981) (stating that the district court makes only a “preliminary or threshold

determination” of admissibility under Rule 801(d)(2)(B), and the jury must then

“decid[e] whether . . . the defendant actually heard, understood, and acquiesced in

the statement”). Based on this conclusion, the admission of the testimony about

the first two challenged conversations was harmless error.

      The district court properly found that the other acts evidence of the

destruction of a stereo and shooting at an inhabited dwelling, the altercation

between an alleged PDF member and officers when police attempted to arrest

Walker, and the assault of Phillip Gomez were admissible as evidence that was

“inextricably intertwined” with the charged conduct. See United States v.


                                          4
Williams, 989 F.2d 1061, 1070 (9th Cir. 1993) (stating that Rule 404(b) is

inapplicable when evidence arising from a “single criminal episode” is other acts

evidence only because the defendant is “indicted for less than all of his actions”

(internal quotation marks omitted)). The district court did not abuse its discretion

by admitting the other acts evidence of the carjacking pursuant to Rule 404(b). See

United States v. Banks, 514 F.3d 959, 976–77 (9th Cir. 2008). Although it was an

abuse of discretion to admit the discovery of a personal use amount of heroin in

Walker’s apartment, the erroneous admission did not “substantially sway the

verdict,” making this error harmless. United States v. Alviso, 152 F.3d 1195, 1199

(9th Cir. 1998).

         Special Agent French’s statements about the truthfulness of Danyea Gray’s

testimony to the grand jury do not warrant reversal under the plain error standard.

While it may have been improper for Special Agent French to comment on the

credibility of Gray, see United States v. Sanchez-Lima, 161 F.3d 545, 548 (9th Cir.

1998), Defendants have not shown that this error caused prejudice in light of the

strong, independent evidence of their involvement with the alleged racketeering

organization, see United States v. Romero-Avila, 210 F.3d 1017, 1022–23 (9th Cir.

2000).




                                           5
      The prosecutor did not engage in misconduct when asking witnesses about

the difficulty of testifying against Defendants or when asking Special Agent

French about the potential consequences of the alleged instances of witness

intimidation. The prosecutor did not give personal assurances as to the veracity of

the witnesses, nor did he insinuate that extra-record material supported their

testimony. Rather, the prosecutor refuted efforts by Defendants to impeach those

witnesses. See United States v. Nash, 115 F.3d 1431, 1439 (9th Cir. 1997).

      Furthermore, the prosecutor’s questions to Special Agent French about his

involvement with the investigation of the PDF, during which Special Agent French

said he was distracted by two unrelated child abduction investigations, do not

constitute vouching, because there was no government imprimatur as to the

veracity of Special Agent French’s responses. The prosecutor’s reference to that

testimony and a Zen philosopher in the rebuttal closing argument was an “invited

response” to Defendants’ assertions in their closing that the FBI was investigating

only leads that conformed with its theory that PDF was a gang. See United States

v. Lopez-Alvarez, 970 F.2d 583, 598 (9th Cir. 1992) (finding that the prosecutor’s

remarks were acceptable because they “merely rebutted defense counsel’s repeated

allegations that the prosecution had intimidated, coached, and bribed witnesses”).

      AFFIRMED.


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