                           NOT FOR PUBLICATION                           FILED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


                                          4
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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