FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES,

Plaintiff-Appellee,

v.

LORENZO GONZALEZ, AKA

Grumpy,

Defendant-Appellant.

No. 13-50348

D.C. No.

2:11-cr-00050-

GAF-5

OPINION

Appeal from the United States District Court

for the Central District of California

Gary A. Feess, District Judge, Presiding

Argued and Submitted

December 11, 2014—Pasadena, California

Filed May 13, 2015

Before: Kim McLane Wardlaw and Marsha S. Berzon,

Circuit Judges, and William E. Smith, District Judge.*

Opinion by Judge Smith

* The Honorable William E. Smith, Chief United States District Judge

for the District of Rhode Island, sitting by designation.
2 UNITED STATES V. GONZALEZ

SUMMARY**

Criminal Law

The panel affirmed a conviction on a count charging the

defendant with committing a violent crime in aid of a

racketeering enterprise—conspiracy to murder rival gang

members—in a case in which the defendant argued that the

district court’s jury instructions violated his right to a

unanimous jury verdict.

The panel assumed, without deciding, that a specific

unanimity instruction was required because the breadth of the

indictment, in conjunction with the nature of the evidence,

raised the specter of different jurors concluding that the

defendant participated in different conspiracies to murder

different rival gang members.

The panel discerned no abuse of discretion, where the

effect of the district court’s additional instruction was to

ensure juror unanimity on all of the elements of conspiracy

to murder rival gang members and to prevent different

jurors from finding the defendant guilty based on different

conspiracies to murder different gang members. Joining

sister circuits, the panel held that so long as jurors

unanimously agree that the Government has proven each

element of a conspiracy, they need not unanimously agree on

the particular overt act that was committed in furtherance of

the agreed-upon conspiracy.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. GONZALEZ 3

COUNSEL

James Bisnow, Pasadena, California, for DefendantAppellant.

Jennie L. Wang, Assistant United States Attorney (argued),

André Birotte Jr., United States Attorney, Robert E. Dugdale

and Justin R. Rhoades, Assistant United States Attorneys, for

Plaintiff-Appellee.

OPINION

SMITH, District Judge:

Lorenzo Gonzalez appeals his conviction and sentence

following a jury trial in which he was found guilty of

racketeering conspiracy (Count One) and of two counts of

committing a violent crime in aid of a racketeering enterprise

(“VICAR”): conspiracy to murder rival gang members

(Count Two) and conspiracy to murder Edward Clark (Count

Ten). In this opinion, we consider only Gonzalez’s argument

that the district court’s instructions to the jury on Count Two

violated his right to a unanimous jury verdict. In a

concurrently filed memorandum disposition, we address

Gonzalez’s remaining challenges to his conviction and

sentence. See United States v. Gonzalez, __ F. App’x __ (9th

Cir. 2015). We affirm his conviction on Count Two.

I. Background

Gonzalez, a member of the 38th Street Gang, was charged

in Count Two with the VICAR offense of conspiracy to

murder rival gang members under California law. The
4 UNITED STATES V. GONZALEZ

Government’s evidence against Gonzalez on Count Two

primarily consisted of wiretapped telephone conversations

between Gonzalez and other 38th Street Gang members

relating to different (often unnamed) members of different

gangs and occurring on different dates. In his proposed jury

instructions, Gonzalez requested that the district court instruct

the jurors to “unanimously agree upon the precise conspiracy

to murder rival gang members which occurred.”

Although the district judge declined to give Gonzalez’s

requested unanimity instruction, he acknowledged the danger

of a non-unanimous jury verdict and expressed concern with

the Government’s insistence that, under California law, it was

not required to prove that the conspirators intended to kill a

specific person. To address these issues, the district court

fashioned an augmented jury instruction, to be given in

addition to the court’s general unanimity instruction. This

additional instruction provided: “The jury must unanimously

agree as to the person or persons who were the intended

victims of the murder conspiracy.” In his final charge to the

jury, the district judge provided both a general unanimity

instruction and the additional unanimity instruction, which

followed on the heels of the court’s instruction on the

elements of the crime of conspiracy to murder rival gang

members:

[T]he government must prove each of the

following four elements beyond a reasonable

doubt:

(1) The defendant and at least one other coconspirator entered into an agreement to kill

unlawfully rival gang members;
UNITED STATES V. GONZALEZ 5

(2) The defendant and at least one other coconspirator specifically intended to enter into

an agreement with one or more other coconspirators for that purpose;

(3) The defendant and at least one other coconspirator to the agreement harbored express

malice aforethought, namely, a specific intent

to kill rival gang members; and

(4) An overt act was committed in this state

by one or more of the co-conspirators who

agreed and intended to commit the murder.

The jury must unanimously agree as to the

person or persons who were the intended

victim(s) of the murder conspiracy.

The jury convicted Gonzalez on Count Two (among other

counts), and he timely appealed.

II. Discussion

Gonzalez argues that the district court erred in failing to

instruct the jury that it must unanimously agree on the acts

that constituted the conspiracy to murder underlying the

VICAR offense charged in Count Two. A defendant in a

federal prosecution has a constitutional right to a unanimous

jury verdict. See United States v. Garcia-Rivera, 353 F.3d

788, 792 (9th Cir. 2003); see also Fed. R. Crim. P. 31(a).

Unanimity in this context “means more than a conclusory

agreement that the defendant has violated the statute in

question; there is a requirement of substantial agreement as

to the principal factual elements underlying a specified
6 UNITED STATES V. GONZALEZ

offense.” United States v. Ferris, 719 F.2d 1405, 1407 (9th

Cir. 1983); see also Richardson v. United States, 526 U.S.

813, 817 (1999) (“[A] jury in a federal criminal case cannot

convict unless it unanimously finds that the Government has

proved each element.”). However, “‘there is no general

requirement that the jury reach agreement on the preliminary

factual issues which underlie the verdict,’ since ‘different

jurors may be persuaded by different pieces of evidence, even

when they agree upon the bottom line.’” United States v.

Ruiz, 710 F.3d 1077, 1081 (9th Cir. 2013) (quoting Schad v.

Arizona, 501 U.S. 624, 632, 631–32 (1991) (plurality

opinion)); see also Richardson, 526 U.S. at 817 (“[A] federal

jury need not always decide unanimously which of several

possible sets of underlying brute facts make up a particular

element . . . .”).

In the typical case, a district court’s general unanimity

instruction to the jury adequately protects a defendant’s right

to a unanimous jury verdict. United States v. Chen Chiang

Liu, 631 F.3d 993, 1000 (9th Cir. 2011). However, a general

unanimity instruction alone is insufficient “if it appears ‘that

there is a genuine possibility of jury confusion or that a

conviction may occur as the result of different jurors

concluding that the defendant committed different acts.’” Id.

(quoting United States v. Echeverry, 719 F.2d 974, 975 (9th

Cir. 1983)). In such circumstances, a specific unanimity

instruction is required. Ruiz, 710 F.3d at 1081. In this case,

we assume, without deciding, that a specific unanimity

instruction was required for Count Two because the breadth

of the indictment, in conjunction with the nature of the

evidence, raised the specter of different jurors concluding that

Gonzalez participated in different conspiracies to murder

different rival gang members. See United States v. Payseno,
UNITED STATES V. GONZALEZ 7

782 F.2d 832, 835–37 (9th Cir. 1986); Echeverry, 719 F.2d at

975.

We review the district court’s formulation of the jury

instructions, including the additional unanimity instruction,

for abuse of discretion. See United States v. Garcia, 768 F.3d

822, 827 (9th Cir. 2014); cf. United States v. Kim, 196 F.3d

1079, 1082 (9th Cir. 1999) (“[T]his court reviews [a] district

court’s refusal to give a special unanimity instruction for

abuse of discretion.”). Although the district court did not give

the instruction proposed by Gonzalez, “‘[a] defendant is not

entitled to any particular form of instruction,’ and the district

court may in its discretion issue jury instructions in the words

of its choosing.” United States v. Padilla, 639 F.3d 892, 896

(9th Cir. 2011) (alteration in original) (quoting United States

v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir. 1992)).

Moreover, we do not assess the challenged instruction “in

artificial isolation,” United States v. Dixon, 201 F.3d 1223,

1230 (9th Cir. 2000), but instead consider the instructions “as

a whole and in context.” United States v. Woods, 335 F.3d

993, 997 (9th Cir. 2003).

We discern no abuse of discretion in this case. The effect

of the district court’s additional unanimity instruction was to

ensure juror unanimity on all of the elements of the violent

crime underlying Count Two—conspiracy to murder rival

gang members—and to prevent different jurors from finding

Gonzalez guilty based on different conspiracies to murder

different gang members. The jurors were instructed to

unanimously agree on “the person or persons who were the

intended victim(s) of the murder conspiracy” in order to find

that the elements of the crime of conspiracy to murder rival

gang members had been satisfied. Thus, the jurors needed to

find: (1) an agreement to murder the person or persons who
8 UNITED STATES V. GONZALEZ

they unanimously agreed were the intended victims of the

murder conspiracy; (2) that Gonzalez had both the intent to

agree to murder and the intent to kill these same persons; and

(3) an overt act committed by a conspirator who had agreed

and intended to commit the murder of these agreed-upon

intended victims. Therefore, even if the Government’s

evidence on Count Two created a danger that different jurors

would conclude that Gonzalez conspired to murder different

rival gang members, the additional unanimity instruction, by

requiring the jurors to unanimously agree on the person or

persons who were the intended victims of the murder

conspiracy, led the jurors to reach unanimity “as to the

principal factual elements underlying” the agreed-upon

murder conspiracy. Ferris, 719 F.2d at 1407.

To be sure, because the instruction for the overt-act

element requires the jury to find merely “[a]n overt act”

committed by a person who has agreed and intended to

commit a particular murder, it is possible that, although the

jury unanimously agreed that an overt act was taken with

respect to the unanimously agreed-upon murder conspiracy,

different jurors may have concluded that different particular

overt acts satisfied this element. Even if this occurred,

however, Gonzalez’s right to a unanimous jury verdict was

not violated because, so long as the jurors unanimously

agreed that the overt-act element was satisfied, it was not

necessary for them to agree on which overt act satisfied this

element.

In Chen Chiang Liu, 631 F.3d at 1000 n.7, we stated, in

dicta, that, notwithstanding the comments to Ninth Circuit

Model Jury Instruction 8.20, “[i]t is not clear that a district

court must instruct a jury that it must make a unanimous

finding of which overt act was committed in furtherance of a
UNITED STATES V. GONZALEZ 9

conspiracy.” In making this observation, we relied on Schad,

in which a plurality of the Supreme Court “suggested that a

jury need not specifically agree on which overt act was

committed.” Id. at 1001 n.7. Although we have not

definitively resolved the issue of whether jurors must

unanimously agree on a particular overt act, the Second,

Fifth, and Seventh Circuits have considered the issue and

concluded that such unanimity is not required. See United

States v. Kozeny, 667 F.3d 122, 131–32 (2d Cir. 2011);

United States v. Griggs, 569 F.3d 341, 343–44 (7th Cir.

2009); United States v. Sutherland, 656 F.2d 1181, 1202 (5th

Cir. 1981).

We reached a similar conclusion in a somewhat analogous

context in United States v. Hofus, 598 F.3d 1171, 1175–77 &

nn.2–3 (9th Cir. 2010). In that case, the district court failed to

instruct the jurors to unanimously agree on which specific act

or actions of the defendant constituted the substantial step of

the charged attempt offense. Id. at 1175. After examining

Richardson and Schad, we determined that the district court

did not err because, “even if different jurors found that

different actions constituted [the defendant’s]substantialstep,

the differences . . . are differences only of means.” Id. at

1177. The district court’s instructions ensured that the jurors

reached the requisite level of unanimity for the substantialstep element: unanimous agreement that the element has been

satisfied. Id. at 1176. In this case, even if different jurors

found that different overt acts satisfied the overt-act element,

no unanimity problem would arise because the differences of

opinion on a particular overt act, like the differences of

opinion in Hofus, are ones only of means, and the jurors

reached unanimous agreement that the overt-act element was

satisfied for the unanimouslyagreed-uponmurder conspiracy.
10 UNITED STATES V. GONZALEZ

We now join our sister circuits and hold that, so long as

jurors in a federal criminal trial unanimously agree that the

Government has proven each element of a conspiracy, see

Richardson, 526 U.S. at 817, they need not unanimously

agree on the particular overt act that was committed in

furtherance of the agreed-upon conspiracy. Therefore, even

though the additional unanimity instruction in this case did

not require unanimous agreement on a particular overt act,

Gonzalez’s right to a unanimous jury verdict was not

violated.

One final aspect of this case convinces us that the district

court’s additional unanimity instruction adequately protected

Gonzalez’s right to a unanimous verdict: the nature of the

evidence. Although not identifying the potential intended

victims by name (with the exception of a rival gang member

known as Speedy), the vast majority of the evidence on Count

Two provided the jury with discrete groups of potential

intended victims on which it could unanimously agree: a

BMS gang member called Speedy; the BMS members on

47th Street on May 9, 2010; the rival gang members in

Latham Park on April 8, 2010; the Pueblo Bishops gang

members who shot an individual called Sharp on March 30,

2010; the BMS members who shot at an individual called

Spencer on April 25, 2010; the AFC members who fought

two 38th Street Gang members in 38th Street Gang territory

on March 25, 2010; the potential gang members working near

a 38th Street Gang member’s house on March 25, 2010; and

the Florencia gang members coming through 38th Street

Gang territory on March 8, 2010.1 The jurors needed to select

1 To be sure, the evidence with respect to a particular individual or group

may not have been sufficient to support a finding of guilt on a conspiracy

to murder that individual or group. However, this potential discrepancy
UNITED STATES V. GONZALEZ 11

the person or persons who were the intended victims of the

murder conspiracy—upon whom the jurors were instructed to

unanimously agree—from these discrete groups of potential

intended victims.2

For these reasons, we hold that, to the extent a specific

unanimity instruction was required, the district court’s

additional unanimity instruction adequately ensured that the

jurors reached the requisite level of unanimity.

AFFIRMED.

poses not a juror-unanimity problem, but a sufficiency-of-the-evidence

issue, which we address in the concurrently filed memorandum

disposition.

2 Gonzalez claims that, under the district court’s additional unanimity

instruction, the jurors could have unanimously agreed that the victim was

a particular rival gang but still not have unanimously agreed on the

particular distinct conspiracy directed at the agreed-upon gang. We are

unpersuaded. The jurors were not instructed to reach unanimous

agreement on the gang that was the target of the murder conspiracy;

instead, they were told to “unanimously agree as to the person or persons

who were the intended victim(s) of the murder conspiracy.” We will not

presume that the jurors declined to unanimously agree on the person or

persons who were the intended victims, as they were instructed to do, and

instead reached unanimous agreement only as to the particular rival gang

that was targeted.