                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 16 2009

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 08-10348

              Plaintiff - Appellee,              D.C. No. 2:06-CR-234-PMP-GWF

  v.
                                                 MEMORANDUM *
DONNIE BRYANT,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                      Argued and Submitted December 2, 2009
                             San Francisco, California

Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.

       Donnie Bryant was convicted on several counts under the Violent Crimes in

Aid of Racketeering Activity (“VICAR”) statute, 18 U.S.C. § 1959(a), and for

using a firearm during and in relation to a crime of violence under 18 U.S.C.

§ 924(c). On appeal, Bryant argues: (1) that the evidence was insufficient to



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
support his convictions under VICAR; and (2) that several of his VICAR and

§ 924(c) convictions were multiplicitous and violated the Double Jeopardy clause.

We affirm in part, remand with instructions to vacate in part, and dismiss in part.

Because the parties are familiar with the factual and procedural history of this case,

we will not recount it here.

                                             I

       Bryant did not renew his Rule 29 motion for acquittal at the conclusion of all

the evidence. Thus, the panel reviews the sufficiency of the evidence to support

the VICAR convictions for “plain error.” United States v. Alarcon-Simi, 300 F.3d

1172, 1176 (9th Cir. 2002). Under a plain error review, the panel reviews the

evidence to determine whether there has been: (1) error, (2) that was plain, (3) that

affected substantial rights, and (4) that seriously affected the fairness, integrity, or

public reputation of the judicial proceedings. United States v. Recio, 371 F.3d

1093, 1100 (9th Cir. 2004) (citations omitted). “In reviewing the sufficiency of the

evidence, we must determine whether ‘viewing the evidence in the light most

favorable to the government, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” United States v.

Barragan, 263 F.3d 919, 922 (9th Cir. 2001) (quoting United States v. Symington,

195 F.3d 1080, 1088–89 (9th Cir. 1999)).


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A.    To be convicted under VICAR, one must be engaged in an enterprise “the

activities of which affect, interstate or foreign commerce.” 18 U.S.C. § 1959(b)(2).

Under the plain error standard, sufficient evidence supports this element of

Bryant’s conviction. The government presented witness testimony that: (1) Bryant

was a member of Squad Up; (2) Squad Up was a gang; and (3) Squad Up was

involved in the interstate drug trade. Involvement in the interstate drug trade

certainly has an effect on interstate commerce. Accord United States v. Shryock,

342 F.3d 948, 985 (9th Cir. 2003)) (finding that “the jurisdiction requirement [in

the RICO context] is met if the enterprise or its activities engaged in or involved

interstate or international drug trafficking, use of interstate communication devices,

or possession or use of weapons which traveled in interstate commerce”)

(quotation marks omitted). Thus, the government presented evidence, from which

a reasonable juror could conclude that Bryant’s activities affected interstate

commerce.

B.    VICAR requires that the defendant’s crime be “for the purpose of gaining

entrance to or maintaining or increasing position in an enterprise engaged in

racketeering.” 18 U.S.C. § 1959(a). Under the plain error standard, sufficient

evidence supports this element of Bryant’s conviction. The jury heard evidence

that Squad Up required its members to “put in” work in order to move up within


                                     Page 3 of 6
the gang’s ranks. The jury heard evidence that a Squad Up member could put in

work by shooting rival gang members or protecting the gang’s territory.

Moreover, the jury heard evidence that Bryant was a “gunslinger.” Finally, the

jury heard evidence that the shooting victims were threatened by Squad Up

members for selling drugs in Squad Up territory. Thus, the jury had ample

evidence, upon which to conclude that Bryant’s purpose in committing the murder

was to “maintain[] or increas[e] position in [Squad Up].”

C.    Bryant argues that the district court gave erroneous jury instructions on the

“purpose” element of VICAR. We disagree. “In reviewing jury instructions, the

relevant inquiry is whether the instructions as a whole are misleading or inadequate

to guide the jury’s deliberation.” United States v. Frega, 179 F.3d 793, 807 n.16

(9th Cir. 1999). Read as a whole, the jury instructions, though not perfect, were

not misleading.1




      1
        Though we uphold the jury instruction in this case, the court’s jury
instruction could benefit from more precise phrasing. See United States v. Smith,
520 F.3d 1097, 1104 n.3 (9th Cir. 2008). Accordingly, we request that the Ninth
Circuit Jury Instructions Committee examine this matter and clarify proper jury
instructions for future reference. Specifically, we direct the Committee’s attention
to this Court’s articulation of the controlling legal standard for the “purpose”
element of VICAR in United States v. Banks, 514 F.3d 959 (9th Cir. 2008).

                                    Page 4 of 6
                                           II

      “Where a defendant fails to raise the issue of multiplicity of convictions and

sentences before the district court, [the court] review[s] the district court’s decision

for plain error.” United States v. Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007).

A.    Bryant argues, and the government concedes, that the jury convicting Bryant

on four charges of 18 U.S.C. § 1959(a)(5) (VICAR-attempted murder) and on four

charges of 18 U.S.C. § 1959(a)(3) (VICAR-assault with a dangerous weapon) was

multiplicitous and violated the Double Jeopardy clause. We agree. Accordingly,

we remand back to the district court with instructions to vacate the § 1959(a)(5)

conviction for each pair, without prejudice, subject to re-imposition upon

government motion should Bryant succeed in having the § 1959(a)(3) counts

vacated in appellate or post-conviction proceedings.2

      18 U.S.C. § 924(c) creates an additional punishment for using a firearm

“during and in relation to any crime of violence.” Consequently, a § 924(c)

conviction must correspond to some underlying violent crime. Bryant was indicted

on twelve counts of violating § 924(c) and convicted on all but two of those

counts. However, three of those counts, 32–34, corresponded with Bryant’s 18

      2
       Bryant’s count 4 conviction under 18 U.S.C. § 1959 (a)(5) (VICAR-
conspiracy to commit murder) was not multiplictious. Bryant conceded this at oral
argument, and we affirm it here.

                                      Page 5 of 6
U.S.C. § 1959(a)(5) (VICAR-attempted murder) convictions, which are now being

vacated. Thus, we remand Bryant’s § 924(c) convictions under counts 32–34 with

instructions to vacate, without prejudice, subject to re-imposition upon government

motion should Bryant succeed in having the § 1959(a)(3) counts vacated in

appellate or post-conviction proceedings.

B.    The jury also returned a guilty verdict under § 924(c) on count 36. This

count incorporated by reference count 16, for which Bryant was never charged.

Therefore, it was error for the jury to return a guilty verdict on this count.

Accordingly, we dismiss Bryant’s count 36 conviction.

      AFFIRMED IN PART, REMANDED WITH INSTRUCTIONS TO
      VACATE IN PART, AND DISMISSED IN PART.




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