United States v. Susan Rodriguez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50213

Plaintiff-Appellee,

D.C. No.

v. 8:11-cr-00148-

JVS-24

SUSAN JEANETTE RODRIGUEZ, AKA

Suzie Rodriguez,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted February 5, 2020

Pasadena, California

Filed August 20, 2020

Before: Sidney R. Thomas, Chief Judge, and Kim McLane

Wardlaw and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Nguyen

2 UNITED STATES V. RODRIGUEZ

SUMMARY *

Criminal Law

The panel affirmed a defendant’s convictions, for

conspiracy in violation of the Racketeer Influenced and

Corrupt Organizations (RICO) Act and conspiracy in

violation of the Violent Crimes in Aid of Racketeering

Activity (VICAR), arising out of the defendant’s role as

“secretary” to a high-ranking member of the Mexican Mafia

(La Eme).

Rejecting Rodriguez’s challenges to the VICAR

conviction, the panel held that the district court correctly

gave a “substantial purpose” rather than “but-for-cause”

instruction for the membership-purpose element, and that the

evidence was sufficient to support the membership-purpose

requirement.

The panel rejected the defendant’s challenges to the

district court’s jury instructions on the RICO count and its

special mid-trial instruction about the selection and

admission of evidence. The panel wrote that even if the

defendant’s view of the jury instructions is correct—i.e., that

the district court supplanted the requirement that the

government prove her “agreement” that a participant would

commit racketeering acts with the weaker requirement that

the government need only prove her “knowledge” or

“contemplation”—the district court used the defendant’s

preferred formulation where it mattered, in laying out the

*

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. RODRIGUEZ 3

elements of the offense. The panel also held that if there

were error, it would be harmless. Rejecting the defendant’s

contention that the instructions erroneously broadened the

basis for conviction beyond the scope of the RICO statute,

the panel wrote that the defendant does not present a

compelling reason to depart from the weight of authority

upholding RICO convictions premised on attempts and

conspiracies as predicate racketeering acts. The panel held

that the district court did not abuse its discretion in giving a

mid-trial instruction about the selection of recordings

introduced into evidence by the prosecution.

The panel held that the district court’s instructions

regarding the dual-role opinion testimony offered by two law

enforcement witnesses were not plainly erroneous. The

panel nevertheless emphasized that trial courts should

endeavor to explain clearly the differences between lay

percipient testimony, lay opinion testimony (as governed by

Fed. R. Evid. 701), and expert opinion testimony (as

governed by Fed. R. Evid. 702) in settings where all three

arise.

Regarding the defendant’s argument that the district

court erred in admitting the testimony of two officers about

the meaning of intercepted phone calls, the panel held that

the district court misapplied the Rules of Evidence when it

uniformly treated all of their interpretive testimony as expert

opinion, irrespective of the specific foundation for any

individual statement. The panel reiterated that Rule 702

requires district courts to assure that an expert’s methods for

interpreting new terminology are both reliable and

adequately explained. The panel wrote that while the

officers established the requisite personal knowledge to

support some of their lay opinions, they failed to do so in

numerous instances, and those portions of their testimony

4 UNITED STATES V. RODRIGUEZ

were erroneously admitted. Upon consideration of the

totality of the record, the panel held that the erroneously

admitted testimony was harmless.

The panel held that the district court did not abuse its

discretion in excluding proffered testimony by the

defendant’s sister. The panel wrote that the district court

reasonably concluded that the only proffered testimony with

meaningful probative value went to an unreserved duress

defense—and that all other testimony in the proffer carried

minimal probative force, substantially outweighed by the

risk of unfair prejudice. The panel found that cumulative

error does not provide a basis for reversal.

COUNSEL

Davina T. Chen (argued), Sentencing Resource Counsel,

Federal Public Community Defenders, Los Angeles,

California, for Defendant-Appellant.

Robert J. Keenan (argued) and Joseph T. McNally, Assistant

United States Attorneys; L. Ashley Aull, Chief Criminal

Appeals Section; Nicola T. Hanna, United States Attorney;

United States Attorney’s Office, Santa Ana, California; for

Plaintiff-Appellee.

UNITED STATES V. RODRIGUEZ 5

OPINION

NGUYEN, Circuit Judge:

Susan Rodriguez appeals her convictions and sentence

arising out of her role as “secretary” to a high-ranking

member of the Mexican Mafia (“La Eme”). In 2011, as part

of a large-scale prosecution, Rodriguez was indicted along

with many other individuals for conspiring to conduct the

affairs of the Orange County branch of the Mexican Mafia

(“OCMM”) through a pattern of racketeering activity

including extortion, drug trafficking, and conspiracies and

attempts to commit murder.

For approximately three years, Rodriguez served as

“secretary” for Peter Ojeda, the leader of the OCMM, and

for her ex-husband, Tommy Rodriguez. In that capacity,

Rodriguez delivered messages among Eme members and

their mesas (i.e. leadership teams), collected and disbursed

“tax” money earned from extortion, and, ultimately,

conspired to murder gang members who were deemed a

threat to Ojeda’s leadership.

Prior to trial, Rodriguez reached a favorable “package-

deal” plea agreement with the government, but it fell through

when Ojeda, who was included in the plea agreement,

declined to allocute. After weeks of heated testimony and

advocacy, the jury returned a guilty verdict against

Rodriguez on two counts: (i) conspiracy in violation of the

Racketeer Influenced and Corrupt Organizations Act

(“RICO”), 18 U.S.C. § 1962, and (ii) conspiracy in violation

of the Violent Crimes in Aid of Racketeering Activity

(“VICAR”) statute, 18 U.S.C. § 1959. Rodriguez was

sentenced to 78 months imprisonment.

6 UNITED STATES V. RODRIGUEZ

On appeal, Rodriguez raises numerous challenges to the

trial court’s jury instructions, its evidentiary rulings, and the

sufficiency of the evidence. 1 We have jurisdiction pursuant

to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

I. VICAR Membership Purpose

Rodriguez challenges her VICAR conviction on the

grounds that the district court failed to properly instruct the

jury on the membership-purpose element, and that the

evidence of a membership purpose was insufficient to

support her conviction.

A. Jury Instruction

To support a VICAR conviction, the government must

show: “(1) that the criminal organization exists; (2) that the

organization is a racketeering enterprise; (3) that the

defendants committed [or attempted or conspired to commit]

a violent crime; and (4) that they acted for the purpose of

promoting their position in [or gaining entrance to] the

racketeering enterprise.” United States v. Bracy, 67 F.3d

1421, 1429 (9th Cir. 1995); see 18 U.S.C. § 1959. The

parties agree on this general framework but dispute what

exactly the fourth element, the membership-purpose

element, requires. Rodriguez argues that the government

must prove that a membership purpose—gaining entrance

to, or maintaining or increasing her position in, the

OCMM—was the but-for cause of her conduct. The

government argued for, and the district court applied, a

1

Rodriguez also appeals her sentence, which we address in a

memorandum disposition filed concurrently with this opinion.

UNITED STATES V. RODRIGUEZ 7

lesser “substantial purpose” standard. 2 We hold that the

district court properly instructed the jury on the elements of

a VICAR conspiracy.

We held in United States v. Banks, 514 F.3d 959, 970

(9th Cir. 2008), that the VICAR statute is limited “to those

cases in which the jury finds that one of the defendant’s

general purposes or dominant purposes was to enhance his

status or that the violent act was committed ‘as an integral

aspect’ of gang membership.” Recognizing that “[p]eople

often act with mixed motives,” we rejected a more stringent

reading of VICAR that would require the gang or

racketeering enterprise purpose to be the “only purpose” or

the “main purpose” behind the violent conduct. Id. at 969;

see also id. at 968 (concluding “that the purpose element

does not require the Government to show that the defendant

was solely, exclusively, or even primarily motivated by a

desire to gain entry into, or maintain or increase his status

within, the criminal organization”). We emphasized that

“[i]t would make little sense to provide a safe-harbor . . . for

gang members who can offer a plausible alternative

motivation for their acts.” Id. at 967. However, we

2

The court gave the following jury instruction:

With respect to the fourth element of Count Two, it is

not necessary for the government to prove that the

required motive was the sole purpose, or even the

primary purpose of the defendant in conspiring to

commit the charged crime. You need only find that

enhancing the defendant’s status in the alleged

enterprise was a substantial purpose of the defendant

or that the defendant conspired to commit the one or

both of the alleged crimes of violence (i.e., murder or

assault resulting in serious bodily injury) as an integral

aspect of membership in the enterprise.

8 UNITED STATES V. RODRIGUEZ

explained, the membership purpose “does have to be a

substantial purpose.” Id. at 969.

Rodriguez acknowledges Banks but contends that the

Supreme Court’s intervening decisions in Burrage v. United

States, 571 U.S. 204 (2014), and Husted v. A. Philip

Randolph Institute, 138 S. Ct. 1833 (2018), 3 mandate “[a]

minimum of but-for causation.” We disagree.

In Burrage, the Supreme Court evaluated the level of

causation required to trigger the Controlled Substances Act’s

20-year mandatory minimum sentence for drug distribution

offenses when “death or serious bodily injury results from

the use of such substance.” 571 U.S. at 206 (quoting

21 U.S.C. § 841(a)(1), (b)(1)(A)–(C)). Burrage held that the

“results from” language in the Controlled Substances Act

established a but-for causation requirement. Id. at 218–19.

It explained that the phrase “results from” imposes “a

requirement of actual causality,” and that a “but-for

requirement is part of the common understanding of cause.”

Id. at 211. It added that courts have routinely interpreted

similar language—including “because of,” “based on,” and

“by reason of”—to require a but-for causal relationship. Id.

at 212–14.

Burrage, however, is not clearly irreconcilable with our

decision in Banks, so Banks remains binding precedent in

this circuit. See Miller v. Gammie, 335 F.3d 889, 893 (9th

Cir. 2003) (en banc). The two cases grappled with entirely

3

We fail to see the relevance of Husted, so we center our discussion

on Burrage instead. Husted held that the phrase “by reason of” in the

National Voter Registration Act’s (“NVRA”) Failure-to-Vote Clause

imported a “sole causation” standard. 138 S. Ct. at 1843. But the

Supreme Court’s decision hinged almost entirely on statutory context,

tailored specifically to the NVRA. Id. at 1842–43.

UNITED STATES V. RODRIGUEZ 9

distinct statutes, in an analytic exercise that is heavily

dependent on context. Our detailed analysis of the structure,

context, and purpose of the VICAR statute is in no way

undermined by the Supreme Court’s evaluation of the

Controlled Substances Act in Burrage. In addition, the

“results from” language evaluated in Burrage differs

materially from the “for the purpose of” language assessed

in Banks. The latter phrase concerns motive whereas the

former concerns causation, such that the causation-oriented

reasoning of Burrage does not readily extend to the VICAR

purpose requirement. Reinforcing the conclusion that Banks

remains intact, we reiterated its holding in United States v.

Smith, 831 F.3d 1207, 1217–18 (9th Cir. 2016), which was

decided more than two years after Burrage. 4

The substantial purpose instruction given by the district

court closely tracks our framing from Banks and Smith. See

Smith, 831 F.3d at 1218 (“As we made clear in Banks, in the

gang or racketeering area, when a person has two criminal

purposes neither has to dominate (be the main purpose), but

then neither can be ‘merely incidental’ either. More simply

put, perhaps, both purposes must be substantial.”); Banks,

514 F.3d at 969 (explaining that “the gang or racketeering

enterprise purpose does not have to be the only purpose or

the main purpose of the murder or assault[,] [b]ut it does

have to be a substantial purpose”); id. at 970 (holding that

the VICAR purpose element is also satisfied where “the

violent act was committed ‘as an integral aspect’ of gang

membership”). Because Banks and Smith remain good law,

the district court correctly gave a “substantial purpose”

4

We also note that the Sixth Circuit agreed with Banks’ formulation

of the VICAR purpose requirement, in a decision that issued seven

months after Burrage. United States v. Hackett, 762 F.3d 493, 500 (6th

Cir. 2014).

10 UNITED STATES V. RODRIGUEZ

rather than “but-for cause” instruction for the VICAR

purpose element.

B. Sufficiency of the Evidence

Rodriguez also contends that the evidence was

insufficient to satisfy VICAR’s membership-purpose

requirement. She argues that the government failed to prove

she acted with any membership purpose at all, and, in the

alternative, that the government failed to prove a

membership purpose was the but-for cause of her conduct. 5

We review sufficiency of the evidence de novo. United

States v. Bennett, 621 F.3d 1131, 1135 (9th Cir. 2010). “A

claim of insufficient evidence fails if ‘after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’” Id. (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Although

the government’s evidence as to a membership purpose was

not overwhelming, Rodriguez falls short of meeting the high

standard applicable on sufficiency-of-the-evidence review.

To satisfy the VICAR statute, the government did not

need to prove that Rodriguez was considered an official

member of the Mexican Mafia. The VICAR statute speaks

of maintaining or increasing one’s “position” within the

enterprise—a broad term that encompasses the ringleader of

an Eme faction as well as the less formalized role of his

“secretary.” Accord United States v. Brady, 26 F.3d 282,

289–90 (2d Cir. 1994) (rejecting the defendant’s argument

5

Because we reject Rodriguez’s proposed but-for cause

requirement, we assess her sufficiency-of-the-evidence challenge

instead through the substantial-purpose framework discussed in the

preceding section.

UNITED STATES V. RODRIGUEZ 11

that his VICAR conviction should be reversed because he

was a mere associate, rather than a “made member,” of a

crime family). We further note that the enterprise charged

in the indictment broadly encompassed the organization’s

“leadership, membership, and associates.” The indictment’s

framing reinforces that official Eme membership was not a

prerequisite to a VICAR conviction here. Accord id. at 290

(upholding the VICAR conviction of an “associate” of a

crime family, where the enterprise charged in the indictment

included both “members and associates” of the crime

family).

The government presented sufficient expert and

percipient testimony, as well as recorded conversations and

seized correspondence, to establish that Rodriguez served as

an Eme secretary and facilitated acts of violence as a part of

that role. The conduct at the center of the VICAR count is

inextricably tied to Rodriguez’s position as secretary—

principally, her dissemination of communications to direct

the activities of Ojeda’s mesa, including instructions to

murder or otherwise inflict violence upon those who

threatened Ojeda or the people loyal to him.

Although Rodriguez offers a more innocuous alternative

explanation for her conduct, we must view the evidence in

the light most favorable to the government and presume the

jury resolved all conflicts against her. See United States v.

Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc).

The jury could have accepted Rodriguez’s version of events,

but the evidence did not mandate that it do so. And notably,

Rodriguez’s proffered narrative, i.e., that she acted out of a

desire to protect herself and her family, is not inconsistent

with a VICAR membership purpose. This VICAR element

focuses not on the defendant’s purpose for gang affiliation,

but rather on whether that gang affiliation motivated the

12 UNITED STATES V. RODRIGUEZ

relevant conduct. For these reasons, we find that sufficient

evidence supports Rodriguez’s VICAR conviction.

II. RICO Jury Instructions and Mid-Trial Instruction

We next address Rodriguez’s challenges to the district

court’s jury instructions on the RICO count and its special

mid-trial instruction about the selection and admission of

evidence.

We review de novo whether a jury instruction misstates

the law. United States v. Cortes, 757 F.3d 850, 857 (9th Cir.

2014). However, we review the “language and formulation”

of a jury instruction for abuse of discretion. Id. Jury

instructions must be evaluated “as a whole, and in context,”

rather than in piecemeal. United States v. Stapleton,

293 F.3d 1111, 1114 (9th Cir. 2002). A preserved

instructional error warrants reversal unless it is harmless

beyond a reasonable doubt. United States v. Montoya-

Gaxiola, 796 F.3d 1118, 1124 (9th Cir. 2015). An

unpreserved objection is subject to plain error review.

United States v. Murphy, 824 F.3d 1197, 1204 (9th Cir.

2016).

A. Instructions Regarding Agreement

Rodriguez does not dispute that the district court gave an

accurate jury instruction listing the elements of Count 1, the

RICO charge. That instruction, Jury Instruction 32, required

the government to prove five elements to sustain a RICO

conviction, with the fifth element that Rodriguez “agreed

that one or more participants in the conspiracy . . . would

commit at least two racketeering acts.” Rodriguez contends,

however, that the court twice supplanted the requirement

that the government prove her “agreement” that a participant

would commit racketeering acts with the weaker

UNITED STATES V. RODRIGUEZ 13

requirement that the government need only prove her

“knowledge” or “contemplation” that a participant would

commit racketeering acts. Specifically, Jury Instruction 42

elaborated, in relevant part, as follows:

Now that I have instructed you on the various

types of racketeering, I will return to the fifth

element of Count 1: the defendant agreed that

one or more participants in the conspiracy,

not necessarily the defendant, would commit

at least two racketeering acts.

You must all agree beyond a reasonable

doubt as to which type or types of

racketeering activity you find that the

defendant knew or contemplated would be

committed by one or more members of the

conspiracy.

The court also gave a similar admonition earlier; in one of

its racketeering instructions, the court directed the jurors that

they “must all agree beyond a reasonable doubt as to which

type or types of racketeering activity you find that the

defendant knew or contemplated would be committed by one

or more members of the conspiracy.”

Even if Rodriguez’s view of the jury instructions is

correct, her argument nevertheless fails. The district court

used Rodriguez’s preferred formulation where it mattered,

i.e., in laying out the elements of the offense. Rodriguez’s

challenge arises from subsidiary language in the court’s

unanimity charge—which bore only on juror unanimity as to

the types of racketeering activity involved in the RICO

conspiracy. Therefore, even accepting the premise of

Rodriguez’s argument as true, we find no reversible error

14 UNITED STATES V. RODRIGUEZ

when the jury instructions are considered “as a whole, and in

context.” 6 Stapleton, 293 F.3d at 1114.

Finally, we note that, if there were error, it would be

harmless. The collectivity of the jury instructions

communicated clear guidance about the agreement required

to support a RICO conviction, mitigating any potential

confusion from stray remarks by the court. See Estelle v.

McGuire, 502 U.S. 62, 72 (1991) (“It is well established that

[a jury] instruction may not be judged in artificial isolation,

but must be considered in the context of the instructions as a

whole and the trial record.” (internal quotation marks and

citation omitted)); United States v. Garcia, 729 F.3d 1171,

1178 (9th Cir. 2013) (explaining that harmless error includes

the consideration of “whether the element at issue is

sufficiently explained, given the totality of the

instructions”). The district court undisputedly gave a proper

agreement instruction when delineating the elements of the

offense and, in its conspiracy instructions, further clarified

that mere association with or knowledge of a conspiracy

does not equate with co-conspirator status. Moreover, there

was significant evidence presented at trial that implicated

Rodriguez in an active role in multiple predicate acts. For

these reasons, we find no basis for reversal on the claimed

instructional error.

B. Instructions Regarding Attempt and Conspiracy as

Predicate Acts

The district court, over Rodriguez’s objection, instructed

the jury on predicate racketeering acts encompassing

6

We also note that the district court gave general jury instructions

on conspiracy that correctly explained that mere association with or

knowledge of a conspiracy does not make someone a conspirator.

UNITED STATES V. RODRIGUEZ 15

attempts and conspiracies to commit murder, extortion, and

drug trafficking. Rodriguez contends that these jury

instructions erroneously broadened the basis for conviction

beyond the scope of the RICO statute, because attempts and

conspiracies do not qualify as predicate racketeering acts.

The RICO statute defines racketeering activity to include

“any act or threat involving murder, . . . [or] extortion, . . .

which is chargeable under State law and punishable by

imprisonment for more than one year”; and “any offense

involving . . . the felonious manufacture, importation,

receiving, concealment, buying, selling, or otherwise

dealing in a controlled substance . . . , punishable under any

law of the United States.” 18 U.S.C. § 1961(1)(A), (1)(D).

Rodriguez argues that our recent decision in United States v.

Franklin, 904 F.3d 793 (9th Cir. 2018), and the Supreme

Court’s decision in Scheidler v. National Organization for

Women, Inc., 537 U.S. 393 (2003), counsel a narrow

interpretation of the term “involving” that does not extend to

attempts and conspiracies.

We have long adhered to the principle that “[a] series of

conspiracies and failed attempts constitutes a ‘pattern of

racketeering activity’ within the meaning of 18 U.S.C.

§ 1961(5), even if no racketeering offense is completed.”

United States v. Brooklier, 685 F.2d 1208, 1216 (9th Cir.

1982) (per curiam); see also United States v. Fernandez,

388 F.3d 1199, 1259 (9th Cir. 2004), modified, 425 F.3d

1248 (9th Cir. 2005) (“It is a well-established principle of

RICO law that a murder conspiracy can be a predicate

racketeering act under § 1962(c), and that predicate

racketeering acts that are themselves conspiracies may form

the basis for a charge and eventual conviction of conspiracy

under § 1962(d).” (internal citations omitted)).

Accordingly, we have repeatedly upheld RICO convictions

16 UNITED STATES V. RODRIGUEZ

premised on attempts and conspiracies as predicate

racketeering acts. E.g., United States v. Houston, 648 F.3d

806, 810–12 (9th Cir. 2011) (affirming RICO convictions

based on predicate racketeering acts of conspiracy to commit

murder, murder, and attempted murder); United States v.

Scott, 642 F.3d 791, 794, 801 (9th Cir. 2011) (per curiam)

(affirming RICO conviction based on predicate racketeering

acts of conspiracy to commit murder); United States v.

Shryock, 342 F.3d 948, 962–70 (9th Cir. 2003) (affirming

RICO convictions based on predicate racketeering acts of

conspiracy to commit murder, murder, attempted murder,

conspiracy to aid and abet narcotics distribution, and

conspiracy to extort). Moreover, our approach toward

attempts and conspiracies aligns with that of the other

circuits to have addressed the issue. See, e.g., United States

v. Marino, 277 F.3d 11, 28–31 (1st Cir. 2002); United States

v. Warneke, 310 F.3d 542, 546 (7th Cir. 2002), as amended

on denial of reh’g and reh’g en banc (Jan. 10, 2003); United

States v. Pungitore, 910 F.2d 1084, 1134–35 (3d Cir. 1990);

United States v. Manzella, 782 F.2d 533, 537–38 (5th Cir.

1986); United States v. Licavoli, 725 F.2d 1040, 1044–45

(6th Cir. 1984); United States v. Ruggiero, 726 F.2d 913,

918–19 (2d Cir. 1984), abrogated on other grounds by

Salinas v. United States, 522 U.S. 52, 61–63 (1997).

Rodriguez does not present a compelling reason to depart

from the weight of this authority. Rodriguez relies on the

Supreme Court’s statutory interpretation in Scheidler to

support her narrow construction of the RICO statute, but that

case does little to advance her position. In Scheidler, the

Supreme Court assessed whether the petitioners could be

found liable for extortion within the meaning of the Hobbs

Act and/or the RICO statute, where they had interfered with,

disrupted access to, and sometimes fully shut down abortion

clinics run by the respondents. 537 U.S. at 397–98, 404–05.

UNITED STATES V. RODRIGUEZ 17

The Supreme Court held that the petitioners’ actions fell

outside the bounds of extortionate conduct under either

statute, because even though they deprived or sought to

deprive the respondents of their property rights, they did not

obtain or attempt to obtain any property from the

respondents. Id. at 404–10. The Supreme Court explained

that extortion fundamentally requires that property be

obtained from another, and the mere interference with or

deprivation of another’s property (as the petitioners had

done) constituted a different offense entirely. Id. at 404–06.

Contrary to Rodriguez’s contention, Scheidler did not

address the completed-offense/inchoate-crime distinction at

issue here. 7

Rodriguez latches onto Scheidler’s language that “for a

state offense to be an ‘act or threat involving . . . extortion,

. . . which is chargeable under State law,’ as RICO requires,

the conduct must be capable of being generically classified

as extortionate,” id. at 409 (citation omitted), but inchoate

variants of extortion are “extortionate.” What the Supreme

Court carved out from RICO’s ambit was an entirely distinct

offense (coercion), which bore some resemblance to

extortion but lacked one of extortion’s core defining

elements.

Rodriguez next relies on our decision in Franklin, but

again her reliance is misplaced. In Franklin, we evaluated

7

If anything, Scheidler supports the district court’s instructions by

implying that attempted extortion and conspiracy to extort could qualify

as RICO predicates, so long as the underlying conduct satisfies the

fundamental requirements of an extortion offense. See 537 U.S. at 410

(explaining that claims of extortion, attempted extortion, and conspiracy

to extort could not sustain a RICO conviction solely “[b]ecause

petitioners did not obtain or attempt to obtain respondents’ property”

(emphasis added)).

18 UNITED STATES V. RODRIGUEZ

the meaning of the term “involving,” as used in the Armed

Career Criminal Act. 904 F.3d at 800–02. We observed that

“‘[i]nvolving’ does not have a single, uniform meaning, but

it usually signifies something narrower than ‘relating to.’”

Id. at 801. We added that, “[s]pecifically, ‘involving’ often

connotes ‘includ[ing] (something) as a necessary part or

result.’” Id. (quoting New Oxford American Dictionary 915

(3d ed. 2010)). We provided an example: “a crime ‘involves

use of explosives’ where it actually constitutes the use of

explosives; a crime somewhat like the use of explosives, or

a crime relating to the use of explosives, does not necessarily

‘involve[ ] use of explosives.’” Id. at 802. Rodriguez

extrapolates from this discussion to argue that conspiracies

and attempts to murder, extort, or traffic drugs cannot be

considered acts “involving” the core offenses, because

“[c]onspiracies and attempts to murder, extort, or deal in

controlled substances do not include murder, extortion, or

dealing in controlled substances ‘as a necessary part or

result.’” But Rodriguez takes the language of Franklin well

beyond its context. Both Franklin and the cases on which it

rests focus on how to assess offenses that have similar but

not coextensive elements. They do not address the wholly

separate relationship between completed offenses and their

inchoate counterparts, and isolated quotes extracted from

one context do not readily transfer to the other.

Franklin further noted, and Rodriguez emphasizes, that

Scheidler taught that “the only crime that ‘involv[es]

extortion’ is generic extortion; the word ‘involving’ does

nothing to broaden the scope of that generic crime.” Id.

at 801. But that proposition, again, does not implicate the

distinction Rodriguez seeks to address. All it dictates is that

the “involving” language does not cast a broader net than

conduct that satisfies the core elements of extortion; while it

UNITED STATES V. RODRIGUEZ 19

precludes a distinct offense like coercion, it does not bar

inchoate variants of extortion.

C. Mid-Trial Instruction

Rodriguez contends that the district court, over her

objection, gave an erroneous mid-trial jury instruction about

the selection of the recordings introduced into evidence by

the prosecution, thereby tilting the scales against her. The

court gave the challenged instruction at the request of the

government, which had argued that defense counsel’s

aggressive objections and cross-examination “improperly

suggested that Officer Gallardo and perhaps other members

of the Santa Ana Gang Task Force intentionally withheld

relevant evidence from the government’s counsel, defense

counsel, and now the jury.”

The court instructed the jury as follows: 8

[Y]ou heard testimony with regard to how the

recorded passages you heard were selected.

You also heard that the government did not

prepare the complete transcripts for some

recordings.

8

Part of the instruction, not excerpted here, dealt with the

government’s ability to engage in stealth and deception, including the

use of jailhouse informants. Rodriguez briefly asserts in a footnote that

this part of the instruction constituted improper “vouching for a

notorious jailhouse informant, without any balancing instruction that

such testimony should be viewed with caution” and therefore “was also

problematic.” This passing reference, without any meaningful

supporting argument, is insufficient to raise this as an issue on appeal.

United States v. Stoterau, 524 F.3d 988, 1003 n.7 (9th Cir. 2008).

20 UNITED STATES V. RODRIGUEZ

Once the government produced a recording,

any party was free to make its own

transcription. An opposing party is free to

request the Court to order additional portions

of a recording be played where necessary to

place the portions played in context or to

avoid any misleading impression resulting

from just the portions played.

Rodriguez contends that the court’s mid-trial instruction

misstated the law, bolstered the government’s case,

undermined the defense, and shifted the burden of proof, by

suggesting that “both parties had equal ability to introduce

recordings” even though she faced hearsay constraints that

the government did not. She asserts that “the instruction

suggested either that defendants had been dilatory in failing

to request recordings be played, or that the court had already

determined the selection of recordings was not, in fact,

misleading”—and that, in either case, the court was

inappropriately vouching for the government. She adds that

it was a wholly permissible defense tactic to challenge the

investigation as biased, and the court was wrong to undercut

that approach.

The district court has “substantial latitude” in

formulating jury instructions, United States v. Hicks,

217 F.3d 1038, 1045 (9th Cir. 2000), as amended on denial

of reh’g (July 31, 2000), and we conclude that the court did

not abuse its wide discretion in giving the curative

instruction. First, the instruction aligned with the substance

of Rule 106 and thus did not constitute legal error. See Fed.

R. Evid. 106 (“If a party introduces all or part of a writing or

recorded statement, an adverse party may require the

introduction, at that time, of any other part—or any other

writing or recorded statement—that in fairness ought to be

UNITED STATES V. RODRIGUEZ 21

considered at the same time.”). Second, informing the jury

that any party could seek to present certain evidence is

distinct from telling the jury a party was required to do so—

and the remaining jury instructions eliminated any possible

doubt as to the burden of proof. The jury was otherwise

instructed that the defense did not need to present any

evidence, and that the government bore the burden of

proving every element of the charges beyond a reasonable

doubt.

The instruction also did not preclude Rodriguez from

arguing that the government’s investigation was biased or

conducted haphazardly. In fact, she repeatedly so argued,

implicitly through cross-examination and explicitly during

closing argument. Unlike the cases Rodriguez cites, the

instruction here did not direct the jury not to consider

potential methodological shortcomings or bias in the

government’s investigation, or to avoid drawing a particular

set of inferences. Indeed, the instruction said nothing about

how the jury should evaluate the evidence before it—except

to remind the jury that, ultimately, “it is for you to determine

the weight to be given any item of evidence.” Therefore, we

find that the district court did not abuse its discretion in

giving its mid-trial instruction. 9

9

As the defense correctly points out, its strategy of attacking the

investigation as biased, including arguing that the agents were biased in

their selection of recordings presented to the jury, is a common one.

Although we find no abuse of discretion here, the mid-trial instruction

was unnecessary and, as formulated, ran the risk of being incomplete or

potentially misleading. While the instruction was consistent with

Federal Rule of Evidence 106, it failed to fully capture the restrictiveness

of the rule of completeness, including the defense’s need to overcome

significant evidentiary hurdles. See, e.g., United States v. Collicott,

92 F.3d 973, 982–83 (9th Cir. 1996) (discussing constraints on seeking

22 UNITED STATES V. RODRIGUEZ

III. Dual Role Opinion Testimony

We now turn to Rodriguez’s challenges to the dual role

opinion testimony offered by two law enforcement witnesses

for the government. Rodriguez contends that the district

court erred both in instructing the jury on such testimony and

in admitting it in the first place.

We review a district court’s admission of expert

testimony or lay opinion testimony for abuse of discretion.

United States v. Gadson, 763 F.3d 1189, 1202, 1209 (9th Cir.

2014). However, we review de novo a district court’s

“construction or interpretation of the Federal Rules of

Evidence.” United States v. Wells, 879 F.3d 900, 914 (9th

Cir. 2018) (citation and ellipsis omitted).

We review de novo whether a jury instruction misstates

the law, although we review the “language and formulation”

of a jury instruction for abuse of discretion. Cortes, 757 F.3d

at 857. Plain error review applies where the defendant failed

to object at the trial level. Murphy, 824 F.3d at 1204.

A. Jury Instructions

Rodriguez contends that the district court did not

properly instruct the jury regarding dual role witnesses. She

argues that the district court failed to distinguish between lay

and expert opinion testimony, lumping all opinion testimony

into a single category. She asserts that the court’s

instructions not only failed to clarify the witnesses’ various

roles for the jury, and the significance of each, but also

the admission of hearsay statements through Rule 106). We thus caution

district courts in the use of jury instructions along the lines of the mid-

trial instruction used in this case.

UNITED STATES V. RODRIGUEZ 23

erroneously “elevated all their opinions to the status of

expert opinions.”

Rodriguez did not object below to the district court’s

dual role instructions, so plain error review applies. 10 The

court’s instructions explained that two government

witnesses, Officers Gonzalo Gallardo and John Feeney, had

been permitted to “testif[y] in a type of dual role: They

testified about facts they saw, heard, or learned as a

percipient witness but also were allowed to express opinions

based on their education, training, and experience.” The

court urged the jury to “pay careful attention as to whether a

witness testified to his personal knowledge as a percipient

witness or testified to an opinion” and explained the caveats

attendant to each role. The court explained that, when

witnesses provided opinion testimony, they might rely on

facts outside their personal knowledge—but such testimony

could not serve as proof of the underlying facts. The court

also admonished the jury that “[t]he fact that these witnesses

were allowed to express those opinions should not cause you

to give those witnesses undue deference to any aspect of

their testimony or otherwise influence your assessment of

the credibility of such witnesses.” The dual role

instructions—including the distinction between fact

testimony, on the one hand, and opinion testimony, on the

other—closely tracked the corresponding Ninth Circuit

model instruction. See Ninth Circuit Manual of Model

10

The only objection voiced by defense counsel was to eliminate

any use of the term “expert” in the court’s provisional instruction and

replace it with the broader label of “opinion witnesses”—which the court

did. Thus, it is defense counsel’s own phrasing of which Rodriguez now

complains.

24 UNITED STATES V. RODRIGUEZ

Criminal Jury Instructions, No. 4.15, Dual Role Testimony

(2019).

We conclude that the jury instructions were not plainly

erroneous. The district court addressed the two main areas

of concern we have identified with respect to dual role

witnesses: (i) that the facts on which an expert opinion is

premised “should not be considered for their truth but only

to assess the strength of his opinions”; and (ii) that the jury

should not give undue deference to the testimony of an

opinion witness, just because he has been permitted to testify

in that capacity. United States v. Vera, 770 F.3d 1232, 1246

(9th Cir. 2014). The court’s decision not to label Gallardo

or Feeney as an “expert” in front of the jury further mitigated

the risk that the jury would attach too much weight to the

officers’ lay testimony based on their dual witness status.

Although we find no plain error in the district court’s

instructions, we emphasize that trial courts should endeavor

to explain clearly the differences between lay percipient

testimony, lay opinion testimony (as governed by Rule 701),

and expert opinion testimony (as governed by Rule 702) in

settings where all three arise. In many cases, designating an

umbrella category of “opinion testimony” may fail to

provide an appropriate level of nuance to guide the jury’s

evaluation of dual role testimony.

B. Admission of Opinion Testimony of Officers Gallardo

and Feeney

Rodriguez also argues that the district court erred in

admitting the testimony of Officers Gallardo and Feeney, to

the extent they testified about the meaning of the intercepted

UNITED STATES V. RODRIGUEZ 25

phone calls played at trial. 11 Rodriguez contends that the

court erroneously admitted the officers’ opinions as expert

testimony, although they testified to terms without fixed

meanings and without a reliable methodology of

interpretation. Rodriguez further contends that the

testimony would not be admissible as lay opinion testimony

either—and that its admission “infected the entire trial” and

prejudiced her defense.

We agree with Rodriguez that the district court erred in

admitting some of the opinions of Gallardo and Feeney as

expert testimony. The district court appeared to

misapprehend the parameters of expert testimony in the gang

expert context, assuming that the officers’ general

qualifications sufficed to support the full range of opinion

testimony they might give. But as we have explained, to

provide interpretive testimony concerning terms or phrases

without fixed meanings, “an officer’s qualifications,

including his experience with [gang] investigations and

intercepted communications, are relevant but not alone

sufficient to satisfy Federal Rule of Evidence 702.” Vera,

770 F.3d at 1241. “Rather, Rule 702 requires district courts

to assure that an expert’s methods for interpreting the new

terminology are both reliable and adequately explained.” Id.

Of course, some of the testimony offered by Gallardo

and Feeney indeed passes muster under Rule 702. The

officers’ appropriate expert testimony included their

opinions about the structure and operation of the OCMM, as

well as their opinions concerning the meanings of terms with

fixed meanings like “taxes,” “green lights,” or “hard candy

11

Rodriguez does not challenge “the portions of the witnesses’

testimony relating to the Mexican Mafia’s organization, structure,

methods of operations, roles, and members.”

26 UNITED STATES V. RODRIGUEZ

lists.” See id. (“Officers may testify about their

interpretations of ‘commonly used . . . jargon’ based solely

on their training and experience.” (citation omitted)); United

States v. Hankey, 203 F.3d 1160, 1167–70 (9th Cir. 2000)

(permitting police gang expert testimony where the officer

had acquired relevant expertise through “street

intelligence”).

But when the officers began to opine about uncommon

terms or phrases that they encountered for the first time in

this investigation, the basis for their expert testimony in

numerous instances grew thin. And when this occurred, the

officers generally did not offer an explanation for how they

arrived at their interpretations, nor did the court require them

to provide one. At times when the officers did provide an

explanation, some of those explanations failed to evince

indicia of reliability or methodological rigor.

The district court uniformly treated all the officers’

interpretive testimony as expert opinion, irrespective of the

specific foundation for any individual interpretive statement.

In so doing, the court misapplied the Rules of Evidence to

the testimony before it.

As the government argues, some of the proffered expert

testimony was appropriate for admission as lay opinion

testimony based on the officers’ firsthand experience with

the investigation. But because the district court did not view

any of the officers’ interpretive testimony as lay opinion

testimony, it did not require the officers to establish the

requisite foundation for each such opinion. See Vera,

770 F.3d at 1243 (“[L]aw enforcement officers may offer lay

and expert opinions about the meaning of intercepted phone

calls, but the foundation laid for those opinions must satisfy

Rules 701 and 702, respectively.”). Therefore, while

Gallardo and Feeney established the requisite personal

UNITED STATES V. RODRIGUEZ 27

knowledge to support some of their lay opinions, they failed

to do so in numerous instances, and those portions of their

testimony were erroneously admitted.

We note that the district court’s struggle to be a “vigilant

gatekeep[er]” of the line between the two roles, United

States v. Freeman, 498 F.3d 893, 904 (9th Cir. 2007), was

compounded by its failure to bifurcate or otherwise clearly

mark the distinctions in the officers’ testimony as lay and

expert witnesses. District courts should be cognizant of the

“dangers” and confusion associated with allowing officers to

give both lay and expert opinion testimony. United States v.

Torralba-Mendia, 784 F.3d 652, 658 (9th Cir. 2015); Vera,

770 F.3d at 1242; United States v. Anchrum, 590 F.3d 795,

803 (9th Cir. 2009); Freeman, 498 F.3d at 903–04. To

ameliorate this concern, we encourage district courts to

“clearly separate the case agent’s testimony between lay

observations and expert testimony.” Torralba-Mendia, 784

F.3d at 658; see also United States v. Martinez, 657 F.3d

811, 817 (9th Cir. 2011) (“The government was nearly

always exact in specifying when it was asking for [the

agent’s] testimony as an expert.”); Anchrum, 590 F.3d at

803–04 (explaining with approval how the district court

“clearly separated” the case agent’s testimony into different

phases for lay and expert opinion to avoid the risks identified

in Freeman). Careful separation of this testimony “avoid[s]

blurring the distinction between [an agent’s] distinct role as

a lay witness and his role as an expert witness,” as happened

in this trial. Anchrum, 590 F.3d at 804; Freeman, 498 F.3d

at 904. And clear demarcation of when officers are

testifying in their lay or expert roles makes it easier to

determine whether and how that testimony is supported by

the proper foundation.

28 UNITED STATES V. RODRIGUEZ

We next ask whether the erroneously admitted testimony

was harmless. Wells, 879 F.3d at 923. Although we “begin

with a presumption of prejudice[,] ‘[t]hat presumption can

be rebutted by a showing that it is more probable than not

that the jury would have reached the same verdict even if the

evidence had [not] been admitted.’” Jules Jordan Video, Inc.

v. 144942 Can. Inc., 617 F.3d 1146, 1159 (9th Cir. 2010)

(quoting Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir.

2005)).

Upon consideration of the totality of the record, we find

that the erroneously admitted testimony was harmless. The

majority of the officers’ testimony did pass muster under the

Rules of Evidence. And three cooperating witnesses

separately implicated Rodriguez in the conspiracies for

which she was convicted—including particularly extensive

testimony by cooperator Glenn Navarro. The phone calls

themselves were admitted into evidence as well, amenable

to interpretation through a combination of the admissible

portions of Gallardo’s and Feeney’s testimony and the

context provided by the percipient witnesses at trial. Cf.

Torralba-Mendia, 784 F.3d at 662 (finding that the district

court’s error in failing to instruct the jury on how to evaluate

gang expert’s dual role testimony did not require reversal in

part because evidence on which the expert based his

testimony was provided to the jury, such that “the jury had

the information it needed to evaluate [the expert’s]

opinions”). And the government’s case was bolstered by the

documentary evidence admitted at trial, including a series of

prison correspondences and Mexican Mafia ledgers that

further implicated Rodriguez. In the context of the full trial,

the inadmissible evidence played a small role. We thus

conclude that it is more probable than not that, without the

erroneously admitted testimony, the jury would have

reached the same verdict.

UNITED STATES V. RODRIGUEZ 29

IV. Witness Exclusion

Finally, we address Rodriguez’s argument that the

district court improperly excluded a key defense witness,

Teresa Cantu, who is Rodriguez’s sister. She contends that

Cantu’s testimony was relevant to her mental state and her

defense that she participated in the recorded conversations

not because she was a “Mexican Mafia secretary,” but

because she “never turned her back on anyone.”

Below, Rodriguez proffered that Cantu would testify to

the sisters’ upbringing in a volatile home, Rodriguez’s

tendency to act as a “rescuer” and a “fixer,” and Rodriguez’s

resolve not to let down or abandon anyone. Cantu would

also testify to Rodriguez’s longstanding abusive relationship

with her ex-husband Tommy, and Cantu’s “belie[f] that

[Rodriguez] put protecting Freddy, [her] son, above all else.”

The government objected to Cantu’s testimony as

relevant only to “a pure jury nullification defense” and an

“appeal to the sympathies of the jury.” In reference to

Rodriguez’s abusive relationship, the government added that

Rodriguez had not properly noticed a duress defense—thus

barring her from seeking to do so at trial. Rodriguez

responded that Cantu’s testimony was relevant to her state

of mind, and that her state of mind was material to the

specific intent crimes of which she was accused. She further

argued that Cantu’s testimony “goes to the voluntariness” of

her statements and actions, amidst Tommy’s threats and

persistent abuse.

Reviewing the district court’s exclusionary ruling for

abuse of discretion, United States v. Haischer, 780 F.3d

1277, 1281 (9th Cir. 2015), we affirm. Most of Cantu’s

expected testimony had little connection to the issues in

dispute, and the district court reasonably concluded that

30 UNITED STATES V. RODRIGUEZ

Cantu’s testimony would unduly target the sympathies of the

jury. For example, Rodriguez’s tumultuous childhood

would paint her as a more sympathetic defendant, but it had

little to do with her guilt or innocence of the charges.

Although the district court did not cite a specific evidentiary

rule, it is clear from the record that the court undertook a

Rule 403 balancing analysis and concluded that the

probative value of Cantu’s proffered testimony was

substantially outweighed by the danger of unfair prejudice.

That conclusion was a reasonable one.

The district court also did not err in concluding that at

least some of Cantu’s testimony went to an unpreserved

duress defense. 12 Cantu would testify that Tommy (a

principal conspirator) repeatedly threatened Rodriguez with

violence, and that Rodriguez “lived in fear of Tommy.” To

the extent Rodriguez argued this testimony “goes to the

voluntariness” of her conduct, the court correctly determined

that Rodriguez was putting on a duress defense in all but

name.

However, Rodriguez is also correct that evidence

negating the mental state required for a specific intent crime

is not coextensive with an affirmative defense of duress. See

Haischer, 780 F.3d at 1283 (“Duress and the absence of the

required mens rea are not the same thing.”). Without relying

on a duress defense, Rodriguez could argue that she acted

out of a desire to protect herself and her family, out of fear

from Tommy, or simply because she would never leave

anyone behind, rather than with the requisite mens rea. That

said, the Cantu proffer was extremely weak to the extent it

spoke to any issues beyond duress. Cantu could provide

12

Rodriguez does not dispute that she failed to preserve a duress

defense.

UNITED STATES V. RODRIGUEZ 31

only general background on Rodriguez, and Rodriguez’s

claimed motives were not inconsistent with knowingly

conspiring to racketeer, or acting with the purpose of

maintaining or increasing her position in the OCMM. Even

if Rodriguez became involved with the organization with an

eye toward protecting herself and her family, or out of an

impulse to “rescue” others, that would not exonerate her.

We view the district court’s rulings regarding duress and

Rule 403 as intertwined, and we find that the court

reasonably concluded that the only proffered testimony with

meaningful probative value went to duress—and that all

other testimony in the proffer carried minimal probative

force, substantially outweighed by the risk of unfair

prejudice. Therefore, we conclude that the district court did

not err in excluding Cantu’s testimony.

Based on our foregoing assessment of Rodriguez’s

claimed errors, and the totality of the evidence presented at

trial, we likewise find that cumulative error does not provide

a basis for reversal of Rodriguez’s convictions.

AFFIRMED.