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United States v. Gonzalez

United States Court of Appeals, Ninth Circuit

May 13, 2015

UNITED STATES, Plaintiff-Appellee,
v.
LORENZO GONZALEZ, AKA Grumpy, Defendant-Appellant

Argued and Submitted, Pasadena, California December 11, 2014.

Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-cr-00050-GAF-5. Gary A. Feess, District Judge, Presiding.

SUMMARY[**]

Criminal Law

The panel affirmed a conviction on a count charging the defendant with committing a violent crime in aid of a racketeering enterprise--conspiracy to murder rival gang members--in a case in which the defendant argued that the district court's jury instructions violated his right to a unanimous jury verdict.

The panel assumed, without deciding, that a specific unanimity instruction was required because the breadth of the indictment, in conjunction with the nature of the evidence, raised the specter of different jurors concluding that the defendant participated in different conspiracies to murder different rival gang members.

The panel discerned no abuse of discretion, where the effect of the district court's additional instruction was to ensure juror unanimity on all of the elements of conspiracy to murder rival gang members and to prevent different jurors from finding the defendant guilty based on different conspiracies to murder different gang members. Joining sister circuits, the panel held that so long as jurors unanimously agree that the Government has proven each element of a conspiracy, they need not unanimously agree on the particular overt act that was committed in furtherance of the agreed-upon conspiracy.

James Bisnow, Pasadena, California, for Defendant-Appellant.

Jennie L. Wang, Assistant United States Attorney (argued), André Birotte Jr., United States Attorney, Robert E. Dugdale and Justin R. Rhoades, Assistant United States Attorneys, for Plaintiff-Appellee.

Before: Kim McLane Wardlaw and Marsha S. Berzon, Circuit Judges, and William E. Smith, District Judge.[*] Opinion by Judge Smith.

OPINION

Page 715

SMITH, District Judge:

Lorenzo Gonzalez appeals his conviction and sentence following a jury trial in which he was found guilty of racketeering conspiracy (Count One) and of two counts of committing a violent crime in aid of a racketeering enterprise (" VICAR" ): conspiracy to murder rival gang members (Count Two) and conspiracy to murder Edward Clark (Count Ten). In this opinion, we consider only Gonzalez's argument that the district court's instructions to the jury on Count Two violated his right to a unanimous jury ...


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