F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S , Plaintiff-Appellee
,

v

.

L O R E N Z O G O N Z A L E Z , AKA Grumpy
, Defendant-Appellant

. No. 13-50348

D.C. No. 2:11-cr-00050- GAF -5

OPI NI ON

A ppeal from the United States District Court for the Central District of California G ary A. F eess, District J udg e, Presiding

Arg ued and Submitted D ecember 11, 2014—Pasadena, California

F iled May

13, 2015

B efore: Kim McL a

ne W ardlaw and Marsha S. B erz o n, Circuit J udg es, and W illiam E. Smith, District J udg e. *

Opinion by

J udg e Smith

* T h e Ho n orab le W illiam E. Sm ith
, Ch i ef Un ited States District J u dg e f o r th e District o f

Rh o d e Islan d , sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. G O N Z A L E Z 2

SUMMARY * *

Crim inal Law

The panel affirmed a conviction on a co unt charg ing the defend a n t w ith committing a violent crime in aid of a racketeering enterprise—conspiracy to murder riva l g ang members—in a c as e in which the defendant arg ued that the d i s t rict court’s jury instructions violated his rig ht t o a unanimous jury

verdict.

The p a nel assumed, w ithout deciding
, that a specific unanimity instruction was r equired because the breadth of the indictment, in conjunction w ith the nature of the evidence, raised the specter of different jurors concluding that the defendant participated in different conspiracies t o murder different rival g ang members.

The panel discern ed n o abuse of discretion, where the effect o f the d istrict court’s additional in struction was to

ensure juror unanimity on all of the ele ments of conspiracy
to murder rival g ang members and to prevent d i f ferent jurors from finding the d efendant gu i l t y based on different conspiracies to murder d i f f e rent g ang members. J oining

s i ster circuits, the panel held that so long as j u ro rs unanimously ag ree that the G overnment has proven e ach element of a conspiracy
, they need not unanimously ag ree on the particular overt act that was committed in furtherance o f the ag reed-upon conspiracy

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. G O N Z A L E Z 3

COUNSEL

J ames B isnow, Pasadena, California, for D efendantAppellant.

J ennie L

. W ang , Assistant United States Attorney (ar gu ed), André B irotte J r., United States Attorney
, Robert E

. Dug dale and J ustin R. Rhoades, Assistant United States Attorney s, for Plaintiff-Appellee.

OP INION

SMI T H, District J udg e:

L orenz o G onz a lez appeals his c onviction and sentence following a jury trial in which he was f o u nd g uilty o f racketeering conspiracy ( Count One) and of t wo counts o f committing a v iolent crime in aid of a racketeering enterprise (“VI CAR”) : conspiracy to murder rival g a ng members (Count T wo) and conspiracy to murder Edward Clark (Count Ten). I n this opinion, we consider only G onz alez ’s arg ument that the district court’s instructions to the jury on Count Two violated his rig ht to a u n animous jury verdict. I n a

concurren tly filed memorandum disposition, we address Gonz a lez ’s remaini n g challeng es to his conviction a nd
sentence. See United States v. G onzalez
, __ F

. App’x

__ (9th Cir. 2015). W e affirm his conviction on Count Two.

I . B ackg round

Gonz a lez
, a member of the 38th Street Gang
, was charg ed in Count Two wit h t h e V I CAR offense of conspiracy to murder rival g ang mem b ers under California law. TheU N I T E D S T A T E S V

. G O N Z A L E Z 4

Government’s evidence ag ainst Gonz alez on Co u n t Two primarily consisted o f wiretapped telephone conversations between Gonz alez an d o t h er 38th Street Gang members relating to different (often unnamed) members of diffe rent ga n g s and occurring o n different dates. I n his proposed j u r y instructions, Gonz alez requested that t h e d i s t r i c t c ourt instruct the jurors to “ unanimously ag ree upon the precise conspiracy to murder rival g ang members which occurred.”

A l thoug h the district judg e declined to g ive Gonz ale z ’s requested unanimity instruction, he acknowledg e d the d a ng er of a non-unanimous jury verdict and ex pressed concern with the Government’s insistence that, under California law, it was not required to prove that the conspirators in t e n d ed to kill a specifi c person. To address these issues, the district court fashioned an aug mented jury i n s t r uction, to be g iven in addition to the court’s g eneral unanimity instru c t ion. This additional instruction provided: “The jury must unanimously
ag ree as to the person or persons who were t h e i n tended victims of the murder conspiracy .” I n his final c h a r ge to the jury
, the district judg e p rovided bot h a g eneral unanimity instruction and the additional un a nimity instruction, which followed on the heels of the court’s instruction on the elements o f the crime of conspiracy to murder rival g ang members:

[ T] he g overnment must prove each o f t he following four elements bey o nd a reasonable doubt:

(1) T h e d efendant a

n d at least one other coconspirator entered into an ag reement to k i ll unlawfully

rival g ang members;U N I T E D S T A T E S V

. G O N Z A L E Z 5

(2) T he defendant and at leas t o n e other coconspirator specifically intended to enter into

an ag reement w ith one or more o ther coconspirators for that purpose;

(3) T he defendant and at least o n e o ther coconspirator to the ag reement harbored ex press malice aforethoug ht, namely
, a specific intent to kill rival g a

ng members; and

(4) A n overt act w as committed in t h i s state by one or more of the co-conspirato r s w h o ag reed and intended to commit the murder.

The jury must unanimously a g ree as to t he
perso n or persons who were the intended victim(s) of the murder conspiracy

.

T h e jury convicted Gonz a lez on Count Two (among other counts), and he timely

appealed.

I I . Discussion

Gonz a lez arg ues that the di s t r ict court erred in failing to instruct the jury t h at it must unanimously ag ree on the acts that constituted the conspiracy to murder underly ing the V I CAR offense charg e d in Count T w o. A defendant i n a federal prosecution has a constitutional rig ht to a unanimous jury verdict. See United Stat e s v

. Garcia-Rivera
, 353 F .3d 788, 792 ( 9th Cir. 2003); se e a l s o F ed. R. Crim. P. 31(a). Unanimity in this contex t “means more than a co n cl u s ory ag reement that the def

en d a nt has violated the statute in question; there is a requirement of s ubstantial ag reement a s to the principal factual e le ments underlying a specifiedU N I T E D S T A T E S V

. G O N Z A L E Z 6

offense.” United States v. F e rris
, 71 9 F. 2 d 1 405, 1407 (9th Cir. 1983); see a lso R ichardson v

. United States
, 526 U. S. 813, 81 7 ( 1 9 9 9) (“[ A] jury in a f ederal c riminal case cannot convict unless it unanimously finds that the Government has
pro v ed e ach element.”). However, “‘there is n o g eneral requirement that the jury reach ag reement on the preliminary factual issues which underlie the verdict,’ sin ce ‘different jurors may be persuaded by different pieces of evidence, even when they a g ree 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, 6 3 1–32 (1991) ( p lurality opinion)); see also Richardson
, 526 U.S. at 817 (“[ A] federal jury need not alway s d e c i d e unanimously which of several possible set s o f underlying brute facts make up a particular element . . . .”).

I n the ty pical case, a district court’s g e neral unanimity instruction to the jury adequately protects a defendant’s rig ht
to a unanimous jury verdict. United St a t e s v. Chen Chiang Liu
, 631 F .3d 993, 1 000 (9th Cir. 2 011). However, a g eneral unanimity instruction a lone is insufficient “if it appears ‘that there is a g enuine possibility of ju r y c o n f usion or that a conviction may o c c ur a s t h e result of different jurors concluding that the defendant committed different a cts.’” Id. (quoting United States v. Echeverry
, 7 19 F .2d 974, 975 (9th Cir. 1983)). I n such circumstances, a specific unanimity instruction is required. Ruiz
, 710 F .3d a t 1081. I n t h i s c ase,

we a s s u me, without deciding
, that a specific unanimity instruction w as required for Count Two because the breadth of the indictmen t , i n conjunction with the nature of the evidence, r aised the specter of different jurors concluding that Gonz a lez participated in different conspiracies to murder d ifferent rival g ang members. See United States v. Payseno
,U N I T E D S T A T E S V

. G O N Z A L E Z 7

782 F

. 2d 8 32, 835–37 (9th Cir. 1986); Echeverry
, 719 F .2d at 975.

W e review the district court’s formulation o f the jury instructions, including the ad d i tional unanimity instruction, for abuse of discretion. See United States v. Garcia
, 768 F .3d 822, 827 ( 9th Cir. 2014); cf. United States v. K i m , 196 F .3d 1079, 1082 (9th Cir. 1 999) (“[ T] h is court reviews [ a] district court’s refus a l t o g ive a special unanimity instruction for abuse o f d iscretion.”). Althoug h the district court did not g ive the instruction proposed by Gonz a lez
, “‘[ a] defendant is not entitled to a

ny 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 orig inal) (quoting United States

v. Lopez-Alvarez
, 970 F .2d 5 8 3
, 597 (9th Cir. 1992)). Moreover, w e do not assess the c hall e n g ed instruction “in

a r t ificial isolation,” United States v. Dixon
, 201 F .3d 1223, 1230 (9th Cir. 2000), but instead consider the instructions “as

a whole and in contex t.” U nited States v. W

oods
, 335 F .3d 993, 997 (9th Cir. 2003).

W e 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 under l y i ng Count Two—conspiracy to murder rival
g ang members—and to prevent d ifferent jurors from finding Gonz a lez g uilty based on different conspiracies t o murder different g ang members. The jurors wer e instructed to unanimously ag re e o n “the p erson o r persons who were the intended v ictim(s) o f the murder conspiracy ” in order to find that the elements of the crime of conspiracy to murder rival
g ang members had been satisfied. Thus, the jurors needed to find: ( 1) an ag reement t o murder the person or persons w hoU N I T E D S T A T E S V

. G O N Z A L E Z 8

they unanimously ag reed were the intended v i ct ims of the murder conspiracy ; (2) that Gonz a lez had both the intent to ag ree to murder and the intent to kill these same persons; a nd (3) an o vert act committed by a conspirator who had agreed and i n t ended to commit the murder of these ag reed-upon intended victims. Therefore, even if the Go v e r n ment’s evidence on Count Two created a dang er that different jurors would conclude that Gonz alez conspired to murder different rival g ang members, the a dditional unanimity instruction, b y requiring the jurors to unanimously a g ree on the p e r s on o r persons who were the i n t ended victims of the murder conspiracy
, led th e j u rors to r each unanimity “as to the princ i pal factual e lements underlying ” the ag reed-upon murder conspiracy

. Ferris , 719 F .2d at 1407.

To be sure, because the ins t r u c tion for the overt-act element requires the jury to f ind me r e ly “[ a] n overt act”

c o m m i t ted by a person who has a g reed and intended to commit a particular murder, it is possible that, altho u gh t he jury unanimously ag reed that an overt act wa s t a k en with respect to the u nanimously ag reed-upon m u r der conspiracy
, different jurors may have concluded that different particular
overt acts satisfied this element. Even if t h i s o ccurred, however, Gonz alez ’s rig ht to a u nanimous ju r y verdict was not violated because, so long as the jurors unanimously
ag reed that the overt-act element was satisfied, it was not

n e c essary f

or them to ag r ee on which overt act satisfied th i s element.

I n Chen Chiang Liu
, 631 F .3d at 1000 n.7, we stated, in dicta, that, notwithstanding the comments to Ninth Circuit Model J u ry I nstruction 8.20, “[ i] t is not clear that a district
court must instruct a jur y t h a t it must make a unanimous finding of which overt act was committed in furtherance of aU N I T E D S T A T E S V

. G O N Z A L E Z 9

conspiracy .” I n making this o bservation, we relied on Schad
, in which a plurality o f the Supreme Court “sug g ested that a jury need n ot spe c i f

ically a g ree on which overt act was committed.” Id. at 1001 n.7. Althoug h we ha v e not def i nitively resolved the issue of whether jurors must

u n a n i m ously a g ree on a particular overt act, the Second, F ifth, and Seventh Circuits have considered the issue a nd concluded that such unanimi t y is not required. See United States v. Kozeny
, 6 67 F .3d 122, 1 3 1

– 3 2 (2d Cir. 2 011); United States v. Griggs
, 569 F .3d 3 41, 343–44 (7th C i r. 2009); United States v. Sutherland
, 656 F .2d 1181, 1202 (5th Cir. 1981).

W e r eached a simi l a

r c onclusion in a somewhat analog ous contex t in United States v. Hofus
, 598 F .3d 1171, 1 175–77 & nn.2–3 (9th Cir. 2010). I n that c a se, the d istrict court failed to instruct the jurors to u nanimously ag ree on which specific act

or actions of the defendant constituted the substantial step o f the charg ed attempt offense. Id. at 11 7 5

. A fter ex amining Richardson and Schad
, we determined that the d istrict court did not err because, “even if different jurors found that d i f f e r e n t a c t i o n s c onstituted [ the d efendant’s] substanti a l s t e p , the differences

. . . are d i f f e r e nces o nly of means.” I d

. at 1177. The district c ourt’s instructions ensured that the jurors reached the r e q u i site level of u nanimity for the substantialstep element: unanimous ag reement that the element has been satisfied. Id. at 1176. I n this case, even if different jurors found that different overt acts satisfied the overt-act element,

no unanimity p roblem would arise because the differences o f opinion on a particular over t act, like the differences o f opinion in Hofus
, a re ones only of means, and the jurors reached unanimous ag reement that the overt-act element was satisfied for the unanimously ag reed- u p o n m u r d e r c o n spiracy

.U N I T E D S T A T E S V

. G O N Z A L E Z 10

W e now join our sist e r circuits a nd h old that, so long a s jurors in a federal c riminal trial unanimously ag re e t h at the Government has pr o v e n each element of a conspiracy
, see Richardson
, 526 U.S. a t 817, they n eed not unanimo u s l y ag ree o n the particular overt act that was committed in furtherance of the a g reed-upon conspiracy

. Therefore, even thoug h the additional unanimity instruction in this case did
not require u nanimous ag reement on a particular ov ert act, Gonz al ez ’s rig ht to a unanimous jury verdict was not violated.

One f inal aspect of this case convinces us that the district court’s additional unanimity instruction adequately protected Gonz a lez ’s rig ht to a unanimous verdict: the n a t ure of the evidence. Althoug h not identify ing the potential intended victims by n ame (with the ex ception of a rival g a ng member known as Speedy

), the vast majority o f the evidence on Count Two provided the jury with discrete gr o u p s of potential intended victims on w hich it could unanimo u s ly ag ree: a B MS g ang member calle d Speedy ; the B MS members on 47th Street on May 9
, 2 0 10; the rival g ang members in L atham Park o n April 8, 2010 ; t h e P ueblo B ishops g ang members who shot an individual called Sharp on Marc h 3 0
, 2010; the B MS members who shot a t a n individual called Sp e n c er on April 25, 2010; the AF C members who foug ht
two 3 8th Street Gang members in 38th Street Gang territory

on March 25, 2010; the potential g ang members w o rking near a 38th Street Gang member’s house on March 25, 2010; a nd the F lorencia g ang members c oming thro u g h 3 8 th Street Gang territory on March 8
, 2010. 1 The jurors needed to select

1 T o b e su re, th e ev id en ce w ith resp ect to a p articu lar in d iv id u al o r g ro u p

m ay n o t h av e b een su f

f icien t to su

p p o rt a f in d in g o f g u ilt o n a co n sp iracy
to m u rd er th at in div id u al o r g ro u p

. Ho w ev e r , t h is p o ten tial d iscrep an cyU N I T E D S T A T E S V

. G O N Z A L E Z 11

t h e person o r persons w ho were the intended victims of th e murder conspiracy

— upon whom the jurors were instructed to unanimously ag ree—from t hese discrete g r oups of potential intended victims. 2

F or these reasons, we hol d t h at, to the ex tent a specific

una n imity instruction w as r equired, the district court’s additional unanimity instruction adequatel y ensured that the jurors reached the requisite level of unanimity

.

AF F IRMED.

p o ses n o t a j u ro r- un an im ity pro b lem
, bu t a s u f f icien cy

- o f

- th e- ev id en ce issu e, w h ich w e ad d re s s i n th e co n cu rren tly f iled m em oran d u m d isp ositio n

.

2 Go n zalez claim s th at, un d er th e d i s t r i c t co urt’ s ad d itio n al u n an i m ity in stru ctio n , th e j u ro rs co u ld h av e u n an im o u sly ag reed th at th e v ictim w as

a p arti c u lar riv al g an g bu t still n o t h av e un an im o u sly ag reed o n th e p articu lar distin ct co n sp i racy d irected at th e ag reed

- u p o n g an g

. W e are

u n p ersu ad ed

. T h e j uro rs w ere n o t in stru cted to reach u n an im o u s ag reem en t o n t

h e g an g t h a t w as th e targ et o f th e m u rd er co n sp iracy ; in stead
, th ey w ere to ld to “ un an im o u sly ag ree as to th e p erso n o r p erso n s

w h o w ere th e in t en d ed v i ctim (s) o f t h e m urd er co n sp iracy .” W e w ill n o t p resu m e t h at th e j u ro rs d eclin ed t o u n a n i m o u sly ag ree o n th e p erso n or p erso n s w h o w ere th e in ten d ed v ictim s, as th ey w ere in stru cted to d o , an d in stead reach ed u n an im o u s ag reem en t o n l y as to th e p articu lar riv al g an g th at w as targ eted

.