                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 14 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-10232

                Plaintiff-Appellee,             D.C. No. 3:12-cr-00119-SI-2

 v.
                                                MEMORANDUM*
VICTOR FLORES, AKA Little Creeper,

                Defendant-Appellant.

UNITED STATES OF AMERICA,                       No.    15-10237

                Plaintiff-Appellee,             D.C. No. 3:12-cr-00119-SI-7

 v.

ARMANDO ACOSTA,

                Defendant-Appellant.

UNITED STATES OF AMERICA,                       No.    15-10240

                Plaintiff-Appellee,             D.C. No. 3:12-cr-00119-SI-4

 v.

BENJAMIN CAMPOS-GONZALEZ, AKA
BG,

                Defendant-Appellant.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                  Appeal from the United States District Court
                    for the Northern District of California
                    Susan Illston, District Judge, Presiding

                    Argued and Submitted December 4, 2017
                           San Francisco, California

Before: TALLMAN** and HURWITZ, Circuit Judges, and KEELEY,*** District
Judge.

      Victor Flores, Armando Acosta, and Benjamin Campos-Gonzalez appeal

their convictions arising out of their participation in a Racketeer Influenced and

Corrupt Organizations (“RICO”) enterprise known as the 500 Block/C Street

Gang. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1.    The district court properly found that probable cause supported the

issuance of wiretap orders in May 2011 by the San Mateo County Superior Court

seeking information related to December 2010 shootings that were suspected to

have been perpetrated by members of the RICO enterprise. When the wiretap

orders issued, there remained a “fair probability” that law enforcement would

intercept communications relevant to the predicate shootings. See Dawson v. City



      **
              This case was submitted to a panel that included Judge Kozinski, who
recently retired. Following Judge Kozinski’s retirement, Judge Tallman was drawn
by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Tallman has read
the briefs, reviewed the record, and listened to oral argument.
      ***
            The Honorable Irene M. Keeley, United States District Judge for the
Northern District of West Virginia, sitting by designation.

                                        2
of Seattle, 435 F.3d 1054, 1062 (9th Cir. 2006) (quoting Illinois v. Gates, 462 U.S.

213, 238 (1983)). Because of the ongoing nature of the criminal enterprise, there

was “sufficient basis to believe” that members and associates of the enterprise

would discuss the shootings. United States v. Lacy, 119 F.3d 742, 746 (9th Cir.

1997) (citation and quotation omitted). Moreover, one of the principal suspects in

the shootings had fled to Mexico where he remained a fugitive. He had been

contacted by his parents from target telephones during January and February 2011,

and had used a target telephone to discuss one of the shootings as late as March

2011.

        2.    The district court did not err when, in response to a question during

deliberations, it instructed the jury that, under 18 U.S.C. § 1962(d), the defendants

could “knowingly and intentionally join or become a member of a conspiracy

without being a member of the enterprise.” “[A] defendant may be held liable for

conspiracy to violate section 1962(c) if he knowingly agrees to facilitate a scheme

which includes the operation or management of a RICO enterprise.” United States

v. Fernandez, 388 F.3d 1199, 1230 (9th Cir. 2004) (quoting Smith v. Berg, 247

F.3d 532, 538 (3d Cir. 2001)); see also Boyle v. United States, 556 U.S. 938, 949–

50 (2009).

        The district court’s answer to the jury question did not constructively amend

the indictment. Whether the defendants were found by the jury to be classified as


                                          3
“members” or only mere “associates” of the RICO enterprise, the district court did

not allow them “to be convicted on the basis of different behavior than that alleged

in the original indictment.” United States v. Garcia-Paz, 282 F.3d 1212, 1216 (9th

Cir. 2002) (alteration in original). Likewise, the district court’s instruction did not

create a prejudicial variance from the crimes charged in the indictment, as the

indictment charged the same means and methods of the conspiracy for both

members and associates. Moreover, the district court properly directed the jury to

base its decision on the indictment and jury instructions. At all times, the

defendants were aware of “what [they were] accused of doing in violation of the

criminal law,” and thus could “prepare [their] defense.” United States v. Adamson,

291 F.3d 606, 616 (9th Cir. 2002) (citation omitted).

      3.     The district court did not abuse its discretion by declining to instruct

the jury that it must find as a basis for conviction that the 500 Block/C Street Gang

ascribed allegiance to the prison gang Nuestra Familia. The indictment defined the

RICO enterprise narrowly as the 500 Block/C Street Gang. The district court also

properly declined to apply the doctrine of judicial estoppel; the Government

consistently argued only that information concerning Nuestra Familia provided

necessary background regarding characteristics of the RICO enterprise. See

Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782–86 (9th Cir. 2001)

(“Judicial estoppel is an equitable doctrine that precludes a party from gaining an


                                          4
advantage by asserting one position, and then later seeking an advantage by taking

a clearly inconsistent position.”).

      4.     The district court properly admitted the testimony of California

Highway Patrol Officer Roy Ferriera, who transported Flores after he shot three

law enforcement officers during a raid. The Government asked Officer Ferriera

whether he “believed” Flores had referenced a prior shooting, and whether he was

“aware” that the suspect had killed four law enforcement officers. These

statements were not out of court statements of a non-party, and in any event were

offered to prove Flores’s state of mind, not the truth of the matter asserted. See

Fed. R. Evid. 801(c)(2). For the same reason, the statements were not testimonial

hearsay admitted in violation of the Confrontation Clause. Crawford v.

Washington, 541 U.S. 36, 51 (2004).

      5.     Sufficient evidence supported Acosta’s convictions for conspiring to

obstruct justice, in violation of 18 U.S.C. § 371, and obstruction of justice, in

violation of 18 U.S.C. § 1512(c)(2). The indictment alleged that Acosta obstructed,

influenced, and impeded an “official proceeding,” the federal grand jury

investigation into one of the December 2010 shootings. An “official proceeding”

includes federal grand juries. 18 U.S.C. § 1515(a)(1)(A). Contrary to Acosta’s

assertions, a defendant need not be aware that the obstructed proceeding is federal

in nature, nor must the proceeding be “pending or about to be instituted” at the


                                        5
time of the obstructive conduct. 18 U.S.C. § 1512(f)(1), (g)(1). It is sufficient that a

reasonable jury could conclude that the natural and probable effect of Acosta’s

obstructive conduct included interference with a federal grand jury. See Arthur

Andersen, LLP v. United States, 544 U.S. 696, 707–08 (2005); United States v.

Aguilar, 515 U.S. 593, 599 (1995).

      6.     The district court did not plainly err when it instructed the jury about

the elements of conspiracy to obstruct justice and obstruction of justice. The

instructions required the jury to find a nexus between Acosta’s obstructive conduct

and the official proceeding by stating that “it is sufficient if the obstruction of the

official proceeding was a natural and probable effect of the defendant’s obstructive

conduct.” Although the instructions did not state that an official proceeding

excludes state proceedings, the evidence at trial focused on the federal grand jury,

and the instructions explained that an official proceeding “includes proceedings

before a federal grand jury.” In addition, the instruction regarding conspiracy to

obstruct justice was closely followed by the substantive definition of obstruction of

justice, including its elements. Viewing the instructions as a whole, the jury would

not have been misled. See United States v. Moore, 109 F.3d 1456, 1465 (9th Cir.

1997).

      AFFIRMED.




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