[00:00:00] Speaker 01:
Peggy Sasso, on behalf of Israel Rivas Gomez, I would like to reserve five minutes, please.

[00:00:05] Speaker 04:
All right.

[00:00:05] Speaker 04:
Please watch your clock.

[00:00:06] Speaker 01:
Yes, Your Honor.

[00:00:09] Speaker 01:
Not every murder orchestrated by a gang member is a violation of 1959.

[00:00:14] Speaker 01:
Here, the government turned a state case into a federal one by arguing that there was a gang killing based on the statements of Marcus Castro.

[00:00:24] Speaker 01:
Specifically, Marcus Castro's spun a story about a retaliatory gang murder

[00:00:30] Speaker 01:
that came from Castro and only Castro.

[00:00:33] Speaker 01:
And Rivas Gomez was not only deprived of his opportunity to confront Marcus Castro, Marcus Castro's credibility was repeatedly vouched for by government agent after government agent.

[00:00:48] Speaker 01:
But before we get to that and the Fifth Amendment Miranda violation, even with those unfair advantages, the government failed to prove

[00:00:59] Speaker 01:
count one beyond a reasonable doubt.

[00:01:04] Speaker 01:
Specifically, with respect to count one, Rivas Gomez could only be guilty under a theory of aiding and abetting because it cannot be said on this record that he caused an act that was a substantial cause of Abel's death such that his death would have resulted but for that act.

[00:01:24] Speaker 01:
And so we look at Roseman, the United States,

[00:01:28] Speaker 01:
And that tells us that Brivas Gomez needed to have advanced knowledge at a time when he could walk away.

[00:01:42] Speaker 01:
And there was zero evidence that when Brivas Gomez got to the canal, that when he encountered Molesto, who had someone who he didn't know,

[00:01:55] Speaker 01:
with a knife to his throat, and when Rivas Gomez was not even allowed to walk back to his car by himself without being escorted by Little Whisperer, who was armed with a machete, at that point Rivas Gomez was stuck.

[00:02:07] Speaker 04:
Was there any direct evidence that Rivas had advanced knowledge at a time when he had the opportunity to withdraw?

[00:02:16] Speaker 04:
It seemed to me it was all circumstantial evidence, you know, his motivation to rise in the gang, Snake's testimony.

[00:02:25] Speaker 04:
There was a deleted phone call between Rivas and Molesto.

[00:02:30] Speaker 01:
There was no evidence that Rivas Gomez had knowledge.

[00:02:35] Speaker 01:
The only two people who even claimed to have had advanced knowledge would be Snakers and Castro.

[00:02:41] Speaker 01:
And there's absolutely no evidence that Rivas Gomez had any conversation with either of them during the relevant time period.

[00:02:49] Speaker 01:
Castro was from an entirely different clique, and Snakers had not spoken to anybody in a year and a half since he left Mendota.

[00:02:57] Speaker 01:
And so there is no evidence that he had advanced knowledge before he got to the canal, at which point he was stuck.

[00:03:07] Speaker 01:
And so based on Roseman, the United States, we cannot assume that Rivas Gomez had the requisite intent because the government failed to prove, beyond a reasonable doubt, that he had advanced knowledge before he got there.

[00:03:21] Speaker 04:
What was the objective evidence as to why he went to the canal in the first place?

[00:03:27] Speaker 01:
The objective evidence of why he went to the canal is he received a phone call from, I think it was, I think it was either Palancho or Little Whisper who told him to come over to the house to smoke some marijuana.

[00:03:43] Speaker 01:
He'd been there earlier that day, and he came back to smoke marijuana, at which point he was told, you know, we need to go out to this canal where they arrived at this canal.

[00:03:54] Speaker 01:
on the opposite side of where Molesto was holding this individual at knife point.

[00:04:00] Speaker 01:
So that's the evidence in terms of how he got to the canal.

[00:04:05] Speaker 00:
But we have to review the evidence in the light most favorable to the prosecution here, right?

[00:04:12] Speaker 00:
circumstantial evidence, some of it, but isn't that enough?

[00:04:15] Speaker 00:
You know, Snaker saying that Rivas Gomez wanted to rise to the rank of homeboy and told him about it or was aware of it, the deleted text messages.

[00:04:26] Speaker 00:
Isn't that enough viewed in the light most favorable to the prosecution?

[00:04:31] Speaker 01:
No, Your Honor.

[00:04:33] Speaker 01:
With respect to, there's no evidence that there was any communication to Rivas Gomez.

[00:04:42] Speaker 01:
the messages that went back and forth, the government agents specifically said over and over again, they could not say that there was any connection.

[00:04:48] Speaker 01:
We have two clear missed calls, and then one that went on for, I think, 53 seconds, and several government agents said, we cannot say that there was any connection there.

[00:05:00] Speaker 01:
And so there just simply is no evidence of that.

[00:05:03] Speaker 01:
If we get to Snaker's testimony, that was so implausible on its face that it is simply

[00:05:11] Speaker 01:
not credible.

[00:05:12] Speaker 01:
So we have Snakers saying that when he left Mendota in July of 2016, that Rivas Gomez was at best a paro.

[00:05:22] Speaker 01:
He had nothing concrete with the gang.

[00:05:24] Speaker 01:
And then he went on to testify that Rivas Gomez was present at the planning for the murder of Christina Echevria.

[00:05:34] Speaker 01:
Now the problem

[00:05:35] Speaker 01:
for Snaker's testimony is we know when Christina Achevria died.

[00:05:39] Speaker 01:
It was three months later.

[00:05:41] Speaker 01:
And so Snaker's own testimony is you cannot go from being a paro with nothing concrete with the gang to being on the cusp of being a homeboy in the span of a couple of weeks.

[00:05:53] Speaker 01:
Even Snaker said there's a whole other level, the observation level, where you have to observe for a period of time someone selling drugs.

[00:06:00] Speaker 01:
And then the rules for the gang that was introduced at trial said it took approximately four years of being a Chicao before you'd be on the cusp of being a homeboy.

[00:06:10] Speaker 01:
So that testimony, which Snakers did not even deliver until over two years after debriefing with the government and after he was facing two murder charges and there were two AUSAs in the room, that testimony is just simply

[00:06:27] Speaker 01:
it sort of rises to the level of not credible.

[00:06:31] Speaker 00:
These are good arguments for the jury, but the jury already rendered its verdict and we have to view it in the light most favorable to the prosecution.

[00:06:38] Speaker 01:
That brings us to the Crawford violation, the Crawford violation on steroids.

[00:06:43] Speaker 01:
The government's theory of this case and argument in the opening, in its closing, and its rebuttal was we know this is a gang murder because

[00:06:52] Speaker 01:
of Castro's story, because it was a retaliatory murder against another gang member.

[00:06:57] Speaker 01:
That comes from Castro and only Castro.

[00:07:00] Speaker 01:
Castro is the only one who said that this was a rival gang member from the Bulldogs.

[00:07:05] Speaker 01:
And the evidence would actually suggest he wasn't.

[00:07:08] Speaker 01:
His own father said that he hung out at a house that the government established was an MS-13 gang house.

[00:07:18] Speaker 01:
Nevertheless, the government leaned into this story that Castro spun that this was a retaliatory gang murder, that a junior person, Palancho, had been attacked by some gang members and then went back to the Parkview clique and told them all about it.

[00:07:36] Speaker 01:
And we had Castro from Parkview, Molesta from Parkview, the leader from Parkview go out

[00:07:42] Speaker 01:
to go find this rival gang member.

[00:07:46] Speaker 01:
And then they went out there, and they found this individual, and then they did nothing, which is contrary to what the government's gang expert would have said would have happened.

[00:07:56] Speaker 01:
There would have been a kill on site and broad daylight.

[00:07:59] Speaker 01:
Instead, they waited several weeks.

[00:08:02] Speaker 01:
Nothing happened.

[00:08:03] Speaker 01:
When they finally did something, it was in the mountains in a remote area at night where no message was being sent.

[00:08:09] Speaker 01:
And the only person that was there from Parkview was Molesto.

[00:08:14] Speaker 01:
And we know from the gang's expert that gang killings are clique-based, and we would expect same gang members from the same clique to be there.

[00:08:23] Speaker 01:
And this contrasts sharply with Rivas Gomez's story in terms of what he understood based on what he heard Molesto say in the car to Abel, which was that he, Molesto, had been looking for Abel

[00:08:37] Speaker 01:
for several days.

[00:08:38] Speaker 01:
He hadn't found them.

[00:08:39] Speaker 01:
He'd been looking for them because Abel had attacked Molesto and Little Whisperer.

[00:08:45] Speaker 01:
And that is very significant because, as the government's expert testified, when you have gang members who run away, they could be found in danger of being a coward, at which point that's a death sentence.

[00:09:00] Speaker 01:
So there was a very, very strong incentive for Molesto and Little Whisperer, who were from two different cliques,

[00:09:07] Speaker 01:
to solve this outside of the gang.

[00:09:10] Speaker 01:
And that is what it looks like very compellingly happened here, but for Marcus Castro's testimony.

[00:09:18] Speaker 01:
The very individual that the government complained about selectively was a master storyteller, told whatever he thought that agents wanted to hear.

[00:09:29] Speaker 01:
So why did they bring Rivas Gomez along?

[00:09:34] Speaker 01:
Why did they?

[00:09:36] Speaker 01:
at the canal?

[00:09:40] Speaker 03:
How is it that Rivas Gomez ended up at the canal?

[00:09:43] Speaker 01:
Right, and so we should look at what happened at the canal.

[00:09:46] Speaker 01:
So at the canal...

[00:09:49] Speaker 03:
How does Rivas get there?

[00:09:50] Speaker 01:
Right.

[00:09:50] Speaker 01:
How does Rivas get there?

[00:09:52] Speaker 01:
We have to step back and look at what actually happened.

[00:09:55] Speaker 01:
So we've got Molesto, who's Parkview and a homeboy.

[00:09:59] Speaker 01:
We've got Castro, who's Parkview and a Chicao.

[00:10:02] Speaker 01:
And that's significant because we've got two people who are authorized to do a gang killing based on the government's testimony.

[00:10:08] Speaker 01:
And it's also significant because the government's testifying expert said that

[00:10:14] Speaker 01:
The example was two individuals that were authorized to make a gang killing is sufficient.

[00:10:20] Speaker 01:
That's the example that we were provided.

[00:10:23] Speaker 01:
They were Same Click, Homeboy, Chicao.

[00:10:25] Speaker 01:
Here we've got that.

[00:10:26] Speaker 01:
So why did Rivas Gomez get there?

[00:10:31] Speaker 01:
So we've got Molesto and Castro at the canal making phone calls and connecting with nobody, which the government expert testified has signed it's not a gang killing.

[00:10:45] Speaker 01:
At that point, we get Rivas Gomez, Palancho, and Little Whisper get to the canal.

[00:10:56] Speaker 01:
And the park view guy, Castro, gets in his car.

[00:10:59] Speaker 01:
and goes home, which makes no sense.

[00:11:01] Speaker 01:
But what we've got is two junior individuals, Palancho, who there's no record evidence is anything but a paro, who is thus not authorized to commit a gang killing, and we've got Rivas Gomez.

[00:11:13] Speaker 01:
The two of them are at a so-called planned murder without any murder weapon, with no change of clothes.

[00:11:20] Speaker 01:
They weren't whisked away.

[00:11:21] Speaker 01:
This is suggestive of

[00:11:25] Speaker 01:
The examples that we see from other cases where they're using little, they're using, yes go ahead.

[00:11:29] Speaker 03:
I'm still, I'm still kind of curious about how Rivas Gomez actually got, did he drive himself to the canal?

[00:11:39] Speaker 01:
So, physically, how he got there?

[00:11:42] Speaker 01:
How did he get there?

[00:11:42] Speaker 01:
Physically, he went over to the house where Palancho called him, where he thought they were going to go smoke marijuana.

[00:11:48] Speaker 01:
When he got there, we have Palancho and Little Whisper getting in the car and saying, hey, we got to go to the canal.

[00:11:55] Speaker 01:
Whose car was it?

[00:11:56] Speaker 01:
It was Rivas.

[00:11:58] Speaker 01:
Rivas Gomez was driving the car.

[00:12:00] Speaker 01:
He was driving the car.

[00:12:01] Speaker 03:
Was it his car?

[00:12:03] Speaker 01:
I think it was technically his brother's car, but he was driving the car.

[00:12:07] Speaker 01:
They had just gotten the car several weeks ago.

[00:12:09] Speaker 01:
And as the government... He goes to this house and he gets there.

[00:12:13] Speaker 01:
Yes, he gets there.

[00:12:14] Speaker 03:
And your point is that he didn't know when he got there, he didn't know anything about a murder.

[00:12:19] Speaker 01:
There's no evidence that he knew anything about a murder.

[00:12:21] Speaker 03:
So he gets to the house.

[00:12:23] Speaker 01:
Correct.

[00:12:23] Speaker 03:
And they suddenly whisper in the other fellow, say, we've got to go to the canal.

[00:12:28] Speaker 01:
Yes.

[00:12:28] Speaker 03:
Is that right?

[00:12:29] Speaker 01:
Yeah, that's what the testimony is.

[00:12:31] Speaker 01:
That Molesto's car had broken down, and they needed to go to the canal to help them out.

[00:12:36] Speaker 01:
Now, the ex-gang experts testified that a lot of these guys don't have cars.

[00:12:41] Speaker 01:
And so it's very valuable to find someone who had a car.

[00:12:44] Speaker 01:
And you can see them at the canal making a bunch of phone calls.

[00:12:47] Speaker 03:
So then the three of them drive in Rivas Gomez's car, his family car, to the canal.

[00:12:55] Speaker 03:
Correct.

[00:12:57] Speaker 03:
And when they get to the canal, Rivas just

[00:13:00] Speaker 03:
stays by the car?

[00:13:02] Speaker 01:
So they get to the wrong side of the canal, which again points that this is not something that was planned in advance.

[00:13:07] Speaker 01:
And so they then walk over.

[00:13:09] Speaker 01:
They have to take a little hike to get to where Molesto is.

[00:13:12] Speaker 01:
And then Molesto said, no, you've got to go get the car.

[00:13:14] Speaker 01:
I need the car over here.

[00:13:16] Speaker 01:
But Rivas Gomez isn't allowed to go back to the car by himself.

[00:13:19] Speaker 01:
He is escorted back to the car with Little Whisperer, who is armed with a machete.

[00:13:23] Speaker 01:
There's no evidence Rivas Gomez has a weapon of any sort.

[00:13:26] Speaker 01:
And so then he is directed to bring the car

[00:13:29] Speaker 01:
with little whisper over to where molesto is.

[00:13:34] Speaker 03:
And is there any evidence at that point that he learned what was going on?

[00:13:40] Speaker 01:
Yes.

[00:13:40] Speaker 01:
I believe at that point he's seeing someone who's being held at gunpoint.

[00:13:46] Speaker 01:
And so I think his testimony or his statement to law enforcement was at that point, what do you expect's going to happen?

[00:13:52] Speaker 01:
It's not going to be a picnic.

[00:13:54] Speaker 01:
This is, he's gotten himself into a very big mess, which at that point he has no ability to walk away from without being killed and his family being killed.

[00:14:03] Speaker 01:
And Roseman doesn't ask for an individual to put themselves at risk.

[00:14:09] Speaker 01:
They have to be able to safely walk away.

[00:14:10] Speaker 01:
And he could not do that at that time.

[00:14:12] Speaker 03:
From the car to where Abel was the victim, they walked up there?

[00:14:20] Speaker 01:
So Abel was in the car with Molesto and Castro at Knife Point when they arrived at the wrong side of the canal.

[00:14:31] Speaker 01:
And they walked over.

[00:14:33] Speaker 01:
And at that point, Molesto said, no, I want the car over here, because guess what?

[00:14:36] Speaker 01:
I'm not here to just get picked up.

[00:14:38] Speaker 01:
I want the car over here.

[00:14:40] Speaker 01:
And so that's when they went over there.

[00:14:41] Speaker 01:
Then it's another half an hour from there to drive to the mountain, if that's what your honor's asking.

[00:14:48] Speaker 03:
And when they got to the mountain,

[00:14:50] Speaker 03:
Yes.

[00:14:50] Speaker 03:
Did Rivas Gomez stay in the car?

[00:14:54] Speaker 01:
The evidence is that he was out of the car.

[00:14:58] Speaker 01:
The other guys went and took Abel over a fence and over a distance, and Rivas Gomez stayed by the car.

[00:15:08] Speaker 01:
Now, at some point, as one would expect, he was called over because they're not going to let

[00:15:14] Speaker 01:
somebody who's gotten to that point not have their hands dirty.

[00:15:17] Speaker 01:
So he was brought over.

[00:15:19] Speaker 01:
But the evidence from the coroner is there was a lot of post-mortem wounds that were inflicted.

[00:15:26] Speaker 01:
And Rivas Gomez, he didn't know that he was still even alive at that point.

[00:15:32] Speaker 01:
And where he said he struck the individual, there were post-mortem wounds.

[00:15:36] Speaker 01:
So we have no idea whether Rivas Gomez did anything post-mortem or not.

[00:15:44] Speaker 01:
the coroner testified that at some point you wouldn't know unless you were a professional whether he was dead or not.

[00:15:49] Speaker 03:
As Judge Lee said, the jury heard this whole story, correct?

[00:15:53] Speaker 01:
With Castro, who is the only person that says that this was a gang killing, and that is what the government's entire case was based on.

[00:16:01] Speaker 01:
They don't have a federal case without that, and that is Castro, and 100 percent Castro, and he was not able to confront Castro, and so we have

[00:16:10] Speaker 01:
a Crawford violation on steroids here.

[00:16:12] Speaker 01:
This goes far beyond what this court was concerned about in Ocampo, which was just about the veneer of credibility when law enforcement was reading in testimonial statements.

[00:16:22] Speaker 01:
Here, we have not only reading in testimonial statements, but vouching over and over again.

[00:16:29] Speaker 01:
His testimony is spot on as he saves lives.

[00:16:32] Speaker 03:
I thought that the statements that Castro made,

[00:16:39] Speaker 03:
were directed, or that encompassed Rivas Gomez, that the judge admonished the jury to only use that evidence against Castor.

[00:16:51] Speaker 01:
The limiting instructions were specifically about when Castor was testifying to what he did.

[00:16:57] Speaker 01:
We know the government used these statements at its opening and its closing and in its rebuttal against Rivas Gomez as the basis for this is a gang killing, which they needed it to be a retaliatory gang killing.

[00:17:11] Speaker 01:
And that came from Castro, and it was used against Rivas Gomez in the government's closing and in its rebuttal.

[00:17:18] Speaker 01:
There was absolutely no line drawn.

[00:17:21] Speaker 01:
Without it, there was no federal case against.

[00:17:24] Speaker 01:
against Kasper, against Rivas Gomez.

[00:17:26] Speaker 01:
There had to be a retaliatory game.

[00:17:29] Speaker 03:
So your point is irrespective of, just putting it aside for a moment, irrespective of the Miranda issue, irrespective of the

[00:17:37] Speaker 03:
of the jury instruction based on federal law, not California law, that there was just insufficient evidence as to count one?

[00:17:45] Speaker 01:
Is that what you're... Well, as to count one, yes.

[00:17:50] Speaker 01:
But the bigger issue that I'm talking about besides that is the Crawford violation, which impacts both count one and count two because the government had to prove that this was actually a gang murder or a gang kidnapping.

[00:18:02] Speaker 01:
Otherwise, they don't have the element that shows that this was for the purpose of advancing

[00:18:07] Speaker 01:
within the gang.

[00:18:07] Speaker 01:
If it is not a gang killing, it is not done for that purpose.

[00:18:11] Speaker 01:
We don't have a federal crime.

[00:18:12] Speaker 01:
It's not a violation of 1959.

[00:18:14] Speaker 01:
And that is Castro, 100% Castro, and all Castro.

[00:18:19] Speaker 03:
And your point is that Rivas Gomez was not allowed to cross-examine Castro on those points.

[00:18:28] Speaker 01:
Yes.

[00:18:28] Speaker 01:
The entire case built against him was based on Castro's statement, and he was deprived of his opportunity

[00:18:36] Speaker 01:
to confront.

[00:18:37] Speaker 01:
And this is particularly problematic when Castro's statements are not lining up with the blueprint that the government provided in terms of what we would expect for a gang murder.

[00:18:46] Speaker 01:
And we've got Castro being vouched for, as the government said, the best informant.

[00:18:51] Speaker 01:
And the government's complaining that Castro has a history of making things up to suit law enforcement.

[00:18:58] Speaker 04:
OK.

[00:18:59] Speaker 04:
Thank you, counsel.

[00:19:10] Speaker 05:
Good morning your honors may please the court Ross Pearson for the government I just want to clarify a few points my colleague just argued because the argument seems to be what the facts were and what the jury should have believed them to be but as this court has pointed out

[00:19:23] Speaker 05:
Its job on review for sufficiency is to view the evidence in light most favorable to the government.

[00:19:29] Speaker 05:
And there's this statement that there was zero evidence that Rivas Gomez knew about this murder in advance.

[00:19:34] Speaker 05:
That is flat out false, because a rational juror could have found from several items of evidence that Rivas Gomez knew that this murder was going to be planned ahead of time.

[00:19:44] Speaker 05:
There's Snaker's statement that this was his way for Rivas Gomez to climb up in the clique to become a made man in MS-13.

[00:19:51] Speaker 05:
There was the call that Snakers got from another member of Vatos Locos in the days leading up to the murder that said this murder was being planned by three different cliques, Parkview, Francis, and Vatos Locos.

[00:20:04] Speaker 05:
And that the two cliques, Parkview and Francis, were calling for permission for a Vatos Locos member to participate.

[00:20:12] Speaker 05:
The only person there at the scene of the murder who was Vatos Locos was Rivas Gomez himself.

[00:20:18] Speaker 05:
There was also the deleted Facebook call with molesto the day before the murder, which I understand there are arguments why that might not have been a conversation about the murder, but that was for the jury to resolve.

[00:20:28] Speaker 05:
And then there were two calls, or sorry, there was also the gang expert's testimony in this case that a murder like this would typically be well planned, that everyone who would participate in this murder would know in advance.

[00:20:40] Speaker 05:
And what my colleague here was saying were facts, were a lot of things that Rivas Gomez said.

[00:20:46] Speaker 05:
Things that were self-serving statements like I didn't know ahead of time that this was going to happen.

[00:20:51] Speaker 05:
I didn't do anything once we got to the field until he was dead.

[00:20:55] Speaker 05:
The jury was free to disregard those facts though.

[00:20:57] Speaker 05:
And that just goes to the sufficiency and what any rational juror could have found.

[00:21:02] Speaker 05:
Here, looking at the totality of the evidence and especially viewing

[00:21:06] Speaker 05:
the inferences from these facts in the light most favorable to the government, the jury, any rational juror, easily could have found that Rivas Gomez knew about this murder in advance and that he participated because it was his way to advance in the gang.

[00:21:21] Speaker 05:
And that brings me to the second point that I want to just refute, that we relied on Marcos Castro's statements to prove this case.

[00:21:29] Speaker 05:
That is flat out false, again.

[00:21:31] Speaker 05:
Our argument as to Rivas Gomez was that

[00:21:34] Speaker 05:
He committed this gang murder to climb the ranks in the gang.

[00:21:37] Speaker 05:
The statement, what he was directed by his fellow MS-13 members was to go out and kill someone.

[00:21:43] Speaker 05:
And to him, it didn't matter who he killed.

[00:21:45] Speaker 05:
He just had to kill someone to climb the ranks in the gang.

[00:21:48] Speaker 05:
And we did not argue at any point in our closing argument that Rivas Gomez killed Abel because Abel was a bulldog.

[00:21:56] Speaker 05:
Our argument, and you can take a look at 18 ER 4967 to 68,

[00:22:02] Speaker 05:
And then forty nine fifty four that's the part of closing where we're talking about Revis Gomez.

[00:22:06] Speaker 05:
The only thing we argued was that Revis Gomez killed Abel to climb the ranks in the gang.

[00:22:11] Speaker 05:
Period.

[00:22:12] Speaker 04:
All right counsel.

[00:22:13] Speaker 04:
But didn't the district court err by giving the federal jury instruction on aiding and abetting as opposed to the California instruction.

[00:22:22] Speaker 05:
No your honor.

[00:22:22] Speaker 04:
And that's because your position is not err.

[00:22:25] Speaker 04:
Not that it's err but harmless.

[00:22:28] Speaker 05:
Correct, it's either one.

[00:22:30] Speaker 05:
First off, it wasn't error.

[00:22:31] Speaker 04:
Correct?

[00:22:33] Speaker 04:
No, that's not an answer to my question.

[00:22:35] Speaker 04:
Wasn't it an error in your law to give the federal jury instruction on AD and Bending instead of the California one?

[00:22:42] Speaker 05:
No, Your Honor, and that's because the Senate and that the courts that have actually directly considered this issue all say that's how RICO and Vicard work.

[00:22:51] Speaker 05:
So the Senate specifically says that someone who

[00:22:54] Speaker 05:
Orders or commands another person to commit a violation of vicar is guilty under the federal aiding and abetting statute And then you have courts like the Second Circuit and Diaz and Osborne that have directly considered this issue they have held that you use federal theories of liability in vicar cases and that is directly from Diaz and Osborne which is pages 27 and 28 of our brief you election the indictment though that he He committed a murder under California law

[00:23:23] Speaker 02:
We did, Your Honor, and that's... Right there, I looked at it just to make sure.

[00:23:27] Speaker 05:
Correct, and that's why the court instructed under the elements for murder under California law.

[00:23:32] Speaker 03:
Why didn't he, he should have instructed under the aiding and abetting as well.

[00:23:35] Speaker 03:
You don't flip, you don't, you don't split things.

[00:23:39] Speaker 03:
You keep it everything consistent.

[00:23:41] Speaker 05:
Well, respectfully, Your Honor, I think the courts have said you do split the baby so you don't have separate... I don't think that's correct.

[00:23:48] Speaker 05:
I don't think that's the Ninth Circuit law.

[00:23:50] Speaker 04:
I don't think that's correct.

[00:23:51] Speaker 04:
So why don't you argue why it's harmless?

[00:23:53] Speaker 03:
Sure, Your Honor.

[00:23:53] Speaker 04:
Because I have questions.

[00:23:54] Speaker 04:
I know you argued that it was harmless because he was convicted as a principal.

[00:23:59] Speaker 04:
But what was the evidence that he was a principal in this killer?

[00:24:04] Speaker 04:
I mean, I think the evidence was that maybe after other people had stabbed and macheted and whatever else.

[00:24:11] Speaker 04:
the victim that he made a few stabs to.

[00:24:13] Speaker 05:
It's the same argument or the same evidence I just discussed, but I want to point out the clearest way that this court can see that it's harmless is by looking at what the jury had to find to convict him under the elements actually given.

[00:24:27] Speaker 05:
The jury had to find that he knew of the plan to murder Abel Rodriguez in advance.

[00:24:32] Speaker 05:
It had to find that he had the specific intent to murder Abel Rodriguez

[00:24:36] Speaker 05:
And if you look at the kidnapping instructions, you'll see that the jury had to find that he acted for the specific purpose, that he kidnapped Abel Rodriguez for the specific purpose of murdering him.

[00:24:48] Speaker 05:
That's one of the elements of the kidnapping instruction, that he acted for a nefarious purpose.

[00:24:53] Speaker 05:
And the only nefarious purpose that we argued and the only nefarious purpose that's supported by any of the evidence in the record is that

[00:25:00] Speaker 05:
He acted for the specific purpose of killing Abel Rodriguez.

[00:25:04] Speaker 05:
And whether you're under state law or federal law, kidnapping someone so they can be murdered, so they can be stabbed and hacked to death by your fellow gang members is aiding and abetting a murder.

[00:25:15] Speaker 05:
It makes it easier for the murder to happen.

[00:25:17] Speaker 05:
It specifically furthers and aids in the murder.

[00:25:21] Speaker 04:
We were saving the ineffective assistance error by saying he was convicted as a principal.

[00:25:31] Speaker 04:
Sorry your honor can you rephrase that question well, so You didn't understand what I was asking so correct okay, so my view is that dating and it was error to give the Federal jury instruction on California aiding and abetting when you had to prove California murder But that error is saved it rendered harmless if he was convicted as a principal and you just went back to arguing that he was convicted as an aider and a better again and

[00:26:01] Speaker 05:
I'm not trying to argue that, well, we did argue both.

[00:26:05] Speaker 05:
We argued that he was guilty as a principal.

[00:26:08] Speaker 05:
But what I'm trying to point out to the court is that you can look at what the jury necessarily found in this case and see that just based on what the jury necessarily found here, that Rivas Gomez kidnapped Abel for the specific purpose of helping his fellow gang members murder him, that he knew of the plan ahead of time, and that he acted with the intent to further that murder, that is murder under California law too.

[00:26:30] Speaker 05:
And it's far different from the Reyes case that he cites in his appeal because in that case you just have a few gang members biking around and one of them pulls out a gun and shoots someone in the head.

[00:26:41] Speaker 05:
There's no evidence that the defendant knew about that planned murder in advance or did anything to help it.

[00:26:46] Speaker 05:
Here, just looking at what the jury necessarily found under these facts, there is ample evidence, or the jury had to find that Rivas Gomez knew about this planned murder in advance.

[00:26:57] Speaker 05:
And that's also why I highlighted earlier that

[00:27:00] Speaker 05:
When counsel relies on the facts and highlights the statements that Rivas Gomez made to detectives, the jury rejected those.

[00:27:08] Speaker 05:
The jury rejected those arguments.

[00:27:10] Speaker 05:
They just didn't believe his defense.

[00:27:12] Speaker 05:
Because if they had believed that defense, they would not have been able to find that he had advanced knowledge of the planned murder.

[00:27:18] Speaker 05:
They wanted to have been able to find that he was acting with the intent to further that murder.

[00:27:22] Speaker 05:
And they wanted to have been able to find that he was kidnapping Rodriguez for the specific purpose of murdering him.

[00:27:30] Speaker 05:
His defense was just, I showed up at this canal bank and had no idea what was going to happen.

[00:27:34] Speaker 05:
But by finding him guilty, they necessarily rejected that defense.

[00:27:39] Speaker 03:
Counsel just made a big point that Rivas Gomez's counsel at trial did not have the opportunity to cross examine Castro.

[00:27:50] Speaker 03:
What's your response to that?

[00:27:52] Speaker 05:
It's common in joint trials for us to use each defendant's statement, and we didn't rely on Castro's statement or anything that Castro said in proving the case against Rivas Gomez.

[00:28:03] Speaker 05:
The jury heard it, but, Your Honor, as you pointed out in questions to my colleague, it heard it with a limiting instruction that specifically said you are only to consider Castro's statements against him.

[00:28:17] Speaker 05:
It didn't at all implicate Rivas Gomez.

[00:28:20] Speaker 05:
There was nothing in Castro's statement that pointed the finger at him.

[00:28:23] Speaker 05:
The only reason the jury ever heard that Castro said anything about Rivas Gomez was because his attorney chose to draw that evidence out on cross-examination.

[00:28:31] Speaker 05:
And if you look at the reply brief, it argues that we relied on Castro's statements in our closing argument to convict Rivas Gomez.

[00:28:40] Speaker 05:
One of the, there are two citations, and I just want to clarify each of them.

[00:28:44] Speaker 05:
The first citation in the reply brief is to 18ER 4984 to 485.

[00:28:51] Speaker 05:
Now, that is a section of our closing argument where we're talking about the evidence against Marcos Castro.

[00:28:58] Speaker 05:
We told the jury that we were going to divide closing into two parts.

[00:29:02] Speaker 05:
We talked about the evidence against Rivas Gomez.

[00:29:04] Speaker 05:
In that section, we only argued that he killed Abel Rodriguez

[00:29:08] Speaker 05:
to climb the ranks in the gang, that he was going to be a made man if he killed Abel.

[00:29:12] Speaker 05:
We took a break, and then we moved to the evidence against Marcos Castro.

[00:29:16] Speaker 05:
And that's what they're citing to in the reply brief to say that we used Castro's statement against Rivas Gomez.

[00:29:22] Speaker 05:
It's simply not true.

[00:29:24] Speaker 05:
The second citation is from a single comment and rebuttal argument, 19ER.

[00:29:30] Speaker 05:
5137 where my we argued that Abel was killed because or that the defendant said Abel was a bulldog the defendant said that Abel had chased a specific MS-13 member with a bat and I'll just point out that Rivas Gomez that that was Castro statement We admit that was a stray comment, but Rivas Gomez his own statement mirrors that remarkably Rivas Gomez said he imagined that Abel was killed because he was a bulldog and that

[00:29:59] Speaker 05:
as they were confronting Abel on the drive to the mountains where they would ultimately kill him, that they said that Abel had chased them with a knife in advance of the murder and that they'd been looking for him for weeks.

[00:30:12] Speaker 05:
And you can see that at 3ER 503 to 504.

[00:30:16] Speaker 05:
And so in more than 30 days of trial testimony, there's one stray comment that largely mirrored Rivas Gomez's statement.

[00:30:25] Speaker 05:
And in any event, the court gave repeated limiting instructions saying,

[00:30:28] Speaker 05:
You can only consider Castro's statement as evidence against Marcos Castro.

[00:30:33] Speaker 02:
And so... What happened in the trial?

[00:30:35] Speaker 02:
I can't remember.

[00:30:36] Speaker 02:
Maybe I didn't pay attention, but was Castro convicted too?

[00:30:40] Speaker 02:
No, Your Honor, the jury hung on him.

[00:30:43] Speaker 04:
That's what I thought, because they sent back a note saying they were sure as to Rivas Gomez, but they weren't sure as to...

[00:30:55] Speaker 04:
Castro, but I didn't see the end where they hung correct correct that the jury kind of reside that Castro's Cooperating informant with the government ends up being tried with Rebus Gomez and then ends up with the jury hung on him Just seems like an odd series of events Yes, your honor and as it relates to this appeal it made there was simply no

[00:31:23] Speaker 05:
Crawford violation because we didn't use any of Castro's statements against Rivas Gomez I'd be happy to answer any Castos relationship with Rivas Gomez This isn't in the record from trial but based on Castro's statements He said he knew Rivas Gomez pretty extensively that he knew Rivas Gomez was an MS 13 member and that he they hung out socially on a few occasions that's not in the evidence that

[00:31:53] Speaker 05:
Trial again because we took great lengths to make sure that the jury never heard anything that Castro said about Rivas Gomez and in fact His Rivas Gomez his own attorney said that she had approved all of the United States Bruton redactions to Castro's statements.

[00:32:09] Speaker 04:
So what what were all of the other?

[00:32:13] Speaker 05:
Participants in this prosecuted They were not your honor they were one they are at the

[00:32:22] Speaker 05:
No, no they weren't your honor for various reasons Not all of them were located initially others have picked up charges and other districts that are All of the people participate in this murder Revis Gomez is the only one who's convicted in serving time Castro has since pleaded guilty of

[00:32:43] Speaker 05:
To the to the charges here, so he has also been convicted and then there are references to little whisper one of the people who also Participated in this murder.

[00:32:51] Speaker 05:
He was convicted in state court The panel has no further questions we would ask that it affirmed the conviction and the sentence in this case Thank you.

[00:33:06] Speaker 04:
Thank you counsel.

[00:33:07] Speaker 04:
Okay.

[00:33:07] Speaker 04:
I know you were overtime assessor, but we'll give you some time to respond I

[00:33:12] Speaker 01:
Thank you very much, Your Honor.

[00:33:14] Speaker 01:
I would just like to point the court to the government's opening at 293 and 299.

[00:33:21] Speaker 01:
Rivas Gomez participated in the crimes charged because the victim in this was a member of a rival gang.

[00:33:27] Speaker 01:
By targeting and attacking a rival, he could help MS-13 and promote within the gang.

[00:33:32] Speaker 01:
The government's rebuttal, which it just referred you to, said this was a gang crime because Abel was a bulldog, a beat-up Palantir with a bat, and Mr. Palach

[00:33:42] Speaker 01:
Castro, in fact, said that the same day he joined the surveillance team to go to the rival Bulldog territory to locate and identify this assailant.

[00:33:50] Speaker 01:
Then later at Site 5160, this was a gang crime because they were targeting a rival Bulldog gang member for participating in a reprisal attack that bears all the hallmarks of MS-13 tradecraft.

[00:34:05] Speaker 01:
That's how you know the defendants, plural, were knowledgeable and integral members of the team.

[00:34:12] Speaker 01:
Castro was 100% the source of all of that.

[00:34:16] Speaker 01:
And Rivas Gomez was denied his right to confront Castro's statements.

[00:34:22] Speaker 01:
And if we look at the sufficiency of the evidence issue, the advanced knowledge that the government's claiming was Snakers at a meeting in 2016, over a year and a half

[00:34:33] Speaker 01:
year and a half before this, there was no discussion of a bell.

[00:34:37] Speaker 01:
It was a discussion about the murder of Christina Chevria.

[00:34:41] Speaker 01:
So that is not advance notice that Rivas Gomez had any idea what was happening before he got to the canal.

[00:34:48] Speaker 01:
Then we've already talked about the statement that

[00:34:52] Speaker 01:
Snakers received, even though he, by his own testimony, was not involved with MS-13, was working for a different side, hadn't spoken to anyone for a year and a half, he suddenly gets a phone call about a three-click gang murder that he didn't remember for two and a half years while debriefing, and for which there is absolutely no evidence that there was any meeting, any click meeting, planning this remarkable three-click gang murder.

[00:35:18] Speaker 01:
The government's agent testified they went through social media.

[00:35:22] Speaker 01:
There was nothing, no evidence of any of that.

[00:35:25] Speaker 01:
And this idea that they asked Snakers for permission completely is rebutted by the government's own argument and rebuttal where they said it was preposterous that Snakers would have had any involvement here because he was from a different clique.

[00:35:39] Speaker 01:
The only evidence, and it's not proof beyond a reasonable doubt, is a deleted message that we have no idea if there was any communication at all and only happened because we know Molesto called Rivas Gomez under threat of death if he did not delete all of the evidence in terms of their phone calls.

[00:36:00] Speaker 01:
This was just not a well-planned click

[00:36:05] Speaker 01:
Not a well-planned murder at all.

[00:36:08] Speaker 01:
There was no evidence that this was planned at all.

[00:36:11] Speaker 01:
And so I guess at the end of the day, I would ask the court where we have the theory of the case premised on Castro's statement entirely.

[00:36:22] Speaker 01:
That's the only way we get to 1959.

[00:36:24] Speaker 01:
Castro's credibility was repeatedly vouched for as being spot on.

[00:36:28] Speaker 01:
And I would note he pled to only one of the accounts, and that was about two years ago.

[00:36:33] Speaker 01:
He is yet to be sentenced.

[00:36:34] Speaker 01:
I think that speaks volumes there.

[00:36:37] Speaker 01:
At the same time that the government during this trial was complaining that Castro made things up as he went along.

[00:36:43] Speaker 01:
And we have the jury instructions that were changed.

[00:36:47] Speaker 01:
Court's absolutely right.

[00:36:49] Speaker 01:
He was charged with a state law predicate.

[00:36:51] Speaker 01:
He had to be instructed on a state law predicate.

[00:36:55] Speaker 01:
And with all of that, we would ask that the court reverse, with respect to count one,

[00:37:00] Speaker 01:
I'll find that there was insufficient evidence and remand for trial with respect to count two.

[00:37:05] Speaker 04:
All right.

[00:37:06] Speaker 04:
Thank you, counsel.

[00:37:08] Speaker 04:
US versus Rivas Gomez will be submitted.