1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

RONDALE YOUNG, AKA Devil, AKA PGrump, AKA PG, AKA Pueblo Group, 

Defendant-Appellant.

No. 19-50355 

D.C. No. 

2:10-cr-00923-SJO-31 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

S. James Otero, District Judge, Presiding

Argued and Submitted July 9, 2021

Pasadena, California

Before: WATFORD and BUMATAY, Circuit Judges, and FREUDENTHAL,**

District Judge.

Concurrence by Judge WATFORD

Following an earlier reversal and remand in United States v. Young, 720 F.

App’x 846 (9th Cir. 2017), Rondale Young was tried a second time on charges 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Nancy D. Freudenthal, United States District Judge for 

the District of Wyoming, sitting by designation.

FILED

JUL 28 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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arising from a 2009 shooting at a carwash in nearby 38th Street gang territory. The 

jury returned convictions for conspiracy to violate the Racketeer Influenced and 

Corrupt Practices Act (RICO), conspiratorial and substantive murder under the 

Violent Crime in Aid of Racketeering (VICAR) statute, and use of a firearm in 

furtherance of a crime of violence. The Court vacates Young’s firearm conviction, 

vacates the related consecutive ten-year sentence, and affirms in all other respects.

1. Young argues his prior state acquittal for murder bars or is a defense 

against federal prosecution for VICAR murder. He also argues re-prosecution is 

barred because the government delayed prosecution. The district court did not err 

in denying dismissal. The federal trial was not for a violation of the same statute 

adjudicated in state court even though the indictment for VICAR murder borrowed 

California law defining murder. Thus, the exception to the separate sovereign 

doctrine recognized in Houston v. Moore, 18 U.S. 1 (1820) and confirmed in 

Gamble v. United States, 139 S. Ct. 1960, 1977–78 (2019), does not apply. 

Young’s second theory that his state acquittal is a valid defense was not 

preserved below, thus this issue is reviewed for plain error. United States v. 

McElmurry, 776 F.3d 1061, 1063 (9th Cir. 2015). The district court did not plainly 

err in allowing the VICAR murder charge to go to the jury. On this charge, to 

avoid prejudice, the court “should instruct on the state definition” to include “the 

requisite state of mind or the law respecting self-defense.” United States v. Adkins, 
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883 F.3d 1207, 1211 (9th Cir. 2018) (citation omitted). A prior acquittal is not part 

of California’s definition of murder; thus his state acquittal is not a valid defense to 

VICAR murder.

As to delay in prosecution, Young’s Sixth Amendment speedy trial claim is 

waived by his failure to raise it in the earlier appeal. United States v. Radmall, 340 

F.3d 798, 802 (9th Cir. 2003) (“[Defendant] cannot now use the serendipitous fact 

of reversal . . . to refashion his defaulted claims. . . .”). Dismissal for delay under 

Federal Rule of Criminal Procedure 48(b) “is limited to post-arrest situations.” 

United States v. Benitez, 34 F.3d 1489, 1495 (9th Cir. 1994) (“[A]n arrest or 

prosecution by state authorities does not trigger Rule 48(b)”). The ten-month 

period between Young’s federal arrest and trial does not constitute unnecessary 

delay.

2. Young argues the law of the case requires suppression of his secondday custodial statements and recorded calls based on the mid-stream Miranda

warning given his first day in custody during a deliberate two-step interrogation 

ruled improper in his earlier appeal. Young, 720 F. App’x at 848–49. Young also 

argues for suppression of his recorded calls, and for suppression of allegedly 

coerced statements made after officers detained and referred to his mother. The 

law of the case does not require suppression of Young’s second-day statements 

because this Court’s earlier decision addressed only the circumstances of the first 
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day with no implication that the Court reached Young’s later statements. See

United States v. Garcia-Beltran, 443 F.3d 1126, 1129 (9th Cir. 2006) (the law of 

the case extends to issues “decided explicitly or by necessary implication”).

Further, there is no clear error in the district court’s factual findings denying

Young’s suppression motion. United States v. Job, 871 F.3d 852, 859 (9th Cir. 

2017) (“[F]actual findings [are reviewed] for clear error . . . .”). These findings 

support the district court’s conclusion that the circumstances of that second day 

were curative of the prior day’s Miranda violation. See Bobby v. Dixon, 565 U.S. 

23, 32 (2011) (the break in time and change in circumstances created “a new and 

distinct experience” to conclude the Miranda warning was not undermined

(citation omitted)). No additional curative steps were required for a reasonable 

person in Young’s position to understand that he had a real choice about whether 

to speak again at his request to the detectives. See Missouri v. Seibert, 542 U.S. 

600, 611–12 (2004).

The district court’s findings that Young’s testimony was not credible support 

the order denying suppression of the recorded calls. Special deference is given to a 

district court’s determinations of witness credibility. United States v. Hovsepian, 

422 F.3d 883, 885 (9th Cir. 2005). Finally, the detective’s actions and comments 

about Young’s mother were not coercive but were logically related to video 
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surveillance and eyewitness identifications indicating the vehicle used in the 

carwash shooting belonged to Young’s mother.

3. Young argues the jury instructions erroneously described VICAR’s 

purpose (motive) and its malice elements. As to purpose, Young argues Burrage v. 

United States, 571 U.S. 204 (2014) requires a “but-for” causal relationship 

between the racketeering enterprise and the murder. This argument was rejected in 

United States v. Rodriguez, 971 F.3d 1005, 1010–11 (9th Cir. 2020) and thus we

reject it here. The district court correctly gave a “substantial purpose” rather than a 

“but-for cause” instruction for the VICAR purpose element. Young also argues the 

disjunctive form of the purpose instruction was erroneous. However, a disjunctive 

formulation was specifically recognized in United States v. Banks, 514 F.3d 959 

(9th Cir. 2008) to “ensure that the statute is given its full scope, without allowing it 

to be used to turn every criminal act by a gang member into a federal crime.” Id. at 

970. 

The Court also rejects Young’s arguments that the malice instructions were 

defective for conspiratorial and substantive murder under VICAR. The instruction 

for conspiratorial murder required the government to prove Young agreed and 

intended that one or more of his co-conspirators would “intentionally and 

unlawfully kill” the victim, not just “intentionally kill.” The substantive VICAR 

murder instruction provided that a person acts with express malice if he unlawfully 
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intended to kill. Read together, the phrase “intentionally and unlawfully kill” 

incorporates an express malice requirement. The jury could not convict on only 

implied malice. On aiding and abetting VICAR murder, the instruction required 

the jury find Young “intentionally help[ed] someone else commit a crime” by 

“act[ing] with the intent to facilitate murder in the aid of racketeering” by “actively 

participat[ing] in a criminal venture with advance knowledge of the crime and 

having acquired that knowledge when Defendant still had a realistic opportunity to 

withdraw from the crime.” (emphasis added). This instruction does not permit a 

conviction by finding the shooting was merely a natural and probable consequence 

of Young picking up the co-conspirators. Finally, the instruction for Pinkerton

liability is correct in that the jury was required to find Young agreed with the 

shooter that one or both of them would kill with express malice, and the shooting 

of the victim was a natural and probable consequence of that agreement.

4. Young’s conviction for use and carry of a firearm in furtherance of a 

crime of violence relies on the VICAR second degree murder charge as the crime 

of violence. United States v. Begay, 934 F.3d 1033 (9th Cir. 2019) held that a 

finding of extreme recklessness, depraved heart, or implied malice will suffice as 

the requisite mental state for second degree murder under federal and California 

law. Id. at 1040; Cal. Penal Code § 188. The plurality in Borden v. United States, 

593 U.S. __, 141 S. Ct. 1817 (2021) concluded the phrase “violent felony” under 
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18 U.S.C. § 924(e) of the Armed Career Criminal Act (ACCA) does not include 

offenses criminalizing reckless conduct. Id. at 1825. The definitions of “crime of 

violence” in § 924(c)(3) and “violent felony” in § 924(e)(2)(B) are identical in 

relevant part. Because second degree murder under federal and California law 

criminalizes reckless conduct, VICAR second degree murder is not categorically a 

crime of violence. Because Young’s conviction under 18 U.S.C. § 924(c) is 

vacated, the Court declines to address whether Pinkerton liability applies.

5. The Court rejects Young’s argument that the law permits a fine 

without imprisonment for VICAR murder. See United States v. Rollness, 561 F.3d 

996, 998 (9th Cir. 2009) (per curiam) (recognizing that “§ 1959(a)(1) imposes a 

minimum sentence of life imprisonment for VICAR murder”). The holding in 

Rollness is unaffected by Encino Motors, LLC v. Navarro, 138 S. Ct. 1134, 1141 

(2018).

VACATE 18 U.S.C. § 924(c) CONVICTION AND SENTENCE; AFFIRM IN 

ALL OTHER RESPECTS.
United States v. Young, No. 19-50355

WATFORD, Circuit Judge, concurring:

I agree with my colleagues that a conviction for VICAR murder carries a 

mandatory minimum sentence of life imprisonment without the possibility of 

parole. United States v. Rollness, 561 F.3d 996, 997–98 (9th Cir. 2009) (per 

curiam); accord United States v. Under Seal, 819 F.3d 715, 720 (4th Cir. 2016); 

United States v. Carson, 455 F.3d 336, 385 n.44 (D.C. Cir. 2006) (per curiam);

United States v. James, 239 F.3d 120, 126–27 (2d Cir. 2000). But this case 

illustrates why mandatory minimum sentences of any sort—especially a sentence 

of life without parole—are both unjust and unwise.

The district judge who sentenced Rondale Young to life without parole did 

not believe that sentence to be warranted. He agreed with the jury’s verdict, which 

was predicated on a finding that Young played an integral role in the murder of an 

innocent person. To retaliate against a rival gang, Young drove two of his fellow 

gang members into the rival gang’s territory to kill one of that gang’s members. 

Young’s co-conspirators got out of the car, shot and killed someone they 

mistakenly believed to be a member of the rival gang, and then ran back to the car 

where Young was waiting to drive them off. Young no doubt deserved a lengthy 

sentence for engaging in that conduct, and the judge who presided over his trial 

and heard the evidence against him was no doubt prepared to impose such a 

FILED

JUL 28 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Page 2 of 3 

sentence. But the judge also stated that, if afforded the discretion to do so, he 

would not have sentenced Young to spend the rest of his life in prison. 

Young’s character and background did not suggest that he deserved the 

law’s most severe sanction short of death. He was 26 years old at the time of the 

offense, a devoted father, and employed as a delivery driver for Arrowhead. He 

had only a minor criminal record. In addition, there was no evidence suggesting 

that Young had planned or orchestrated the murder, so his role in the offense 

rendered him at least somewhat less culpable than the other two participants. Yet 

the judge had already sentenced one of those defendants—the one who prosecutors 

believed had actually shot the victim—to 40 years in prison. (That defendant, 

Anthony Gabourel, had been tried separately from Young and acquitted of the 

VICAR murder charge, so he avoided the mandatory life sentence that Young 

faced.) The judge was understandably reluctant to impose on Young a longer 

sentence than the one his more culpable co-defendant had received.

What the Supreme Court has said in the capital sentencing context applies, 

in my view, with no less force in non-capital cases. Arriving at a “just and 

appropriate sentence” in any case—capital or otherwise—“requires consideration 

of the character and record of the individual offender and the circumstances of the 

particular offense.” Woodson v. North Carolina, 428 U.S. 280, 304 (1976) 

(plurality opinion); see also 18 U.S.C. § 3553(a)(1) (requiring the court to 
Page 3 of 3 

consider, among other factors, the “nature and circumstances of the offense and the 

history and characteristics of the defendant”). Mandatory minimum sentencing 

laws frequently preclude the imposition of a just and appropriate sentence because 

they “treat[] all persons convicted of a designated offense not as uniquely 

individual human beings, but as members of a faceless, undifferentiated mass.” 

Woodson, 428 U.S. at 304. Young deserved to be treated “with that degree of 

respect due the uniqueness of the individual,” Lockett v. Ohio, 438 U.S. 586, 605 

(1978) (plurality opinion), even if he was facing a sentence of life without parole 

rather than death.