1 NOT FOR PUBLICATION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 P

Grump, 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

. 

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arising from a 2009 shooting at a carwash in nearby 38th Street gang territory. The jury returned convic tions 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. Th e 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 mu r der. He also argues re

- prosecution is barred because the government delayed prosecution. The district court did not err in denying dismissal

. T he 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.
Youn g’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 VI CAR 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 ,3

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) ( “ [ D efendant] 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 si tuations.” 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 second

day 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 earli er 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 suppress ion of Young’s second

- day statements because this Court’s earlier decision addressed only the circumstances of the first4

day with no implication that the Court reached Young’s later statements. See United States v. Garcia

- Beltran , 443 F.3d 1126, 1129 (9 th 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 p osition 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 video5

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
U nited S tates v. Rodriguez , 971 F

. 3d 1005 , 1010

– 11 (9th Cir. 2020) and thus we reject it here

. T he district court correctly gave a “substantial purpose” rather than a “but

- for cause” instruction for the VICAR purpose eleme nt. 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 s cope, 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 . Th e 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 unlawfully6

intended to kill. Read together, the phrase “intentionally and unlawfully kill” incorporates an express malice requirement . Th e jury could not convict on only implied malice

. O n 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 st ill had a realistic opportunity to withdraw from the crime .” ( e mphasis 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 inst ruction 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 1 033 (9th Cir. 20 19 ) 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 S tates , 593 U.S. __, 141 S. C t . 1817 (202 1 ) concluded the phrase “violent felony” under7

18 U.S.C. § 924(e) of the Armed Career Criminal Act (ACCA) does not include offenses criminalizing reckless conduct. Id . at 1825. The definition s 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. Beca use Young’s conviction under 18 U.S.C. § 924(c) is vacated, t he 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 U nited S tates 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) CO NVICTION 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

c ur iam) ; 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 se ntences 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 -c onspirators 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 cond uct , and the judge who presided over his trial and heard the evidence against him was no doubt prepared to impose such a 

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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, t here 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 off ense.” Woodson v. North Carolina , 428 U.S. 280, 304 (1976) (plurality opinion) ; see also 18 U.S.C. § 3553(a)(1) (requiring the court toPage 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 wi thout parole rather than death.