United States v. Gary White

MEMORANDUM **

Defendants-Appellants' Gary White, Anthony Gabourel, and Jermaine Hardi-man appeal their criminal convictions arising from their activities in the Pueblo Bishop Bloods (PBB) gang. All appeal their convictions for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962 (d), asserting that there was insufficient evidence. In addition, White appeals his conviction for conspiracy to distribute controlled substances under 21 U.S.C. §§ 841 , 846, and his sentence of 168 months imprisonment. Gabourel also appeals his conviction for conspiracy to commit a violent crime in aid of racketeering (VICAR), 18 U.S.C. § 1959 (a)(6), and his conviction for using and carrying a firearm in relation to a crime of violence under 18 U.S.C. § 924 (c)(1)(A). Last, Hardiman appeals his conviction for conspiracy to distribute controlled substances under 21 U.S.C. §§ 841 , 846, and his sentence of 188 months imprisonment and 10 years supervised release. We have jurisdiction under 28 U.S.C. § 1291 . We affirm the district court’s judgments and sentences except for White’s conviction and sentence for drug trafficking conspiracy which we reverse.

1.…

concurring in part, and dissenting in part:

While I agree with the majority on all other counts, I would affirm White’s conviction for conspiracy to distribute controlled substances. In my view, the district court did not abuse its discretion in declining to provide a Sears instruction. I read United States v. Montgomery, 150 F.3d 983, 996-97 (9th Cir.1998), as implicitly holding that a Sears instruction is not required when there is overwhelming evidence of a drug conspiracy with non-governmental conspirators.

Here, there was abundant evidence that White was a high-ranking, senior member of the Pueblo Bishops criminal street gang, and that one of the gang’s primary purposes was to control drug sales in the Pueblo Bishops Housing Projects. The government produced evidence of hundreds of drug transactions conducted by PBB members, and that White knew and approved of these drug sales by his position in the PBB and by encouraging other PBB members to protect the gang’s drug selling territory. In light of this evidence, the district court did not err in finding that there was an insufficient evidentiary foundation to require a Sears instruction.

The jury’s drug quantity finding…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JUL 23 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 12-50589

Plaintiff - Appellee, D.C. No. 2:10-cr-00923-SJO-

v.

MEMORANDUM*

GARY WHITE, AKA Big J-Killa, AKA Big Killa, AKA JC, AKA James Cail White, AKA JC White,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 13-50183

Plaintiff - Appellee, D.C. No. 2:10-cr-00923-SJO-

v.

ANTHONY GABOUREL, AKA Bandit,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 13-50184

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 Plaintiff - Appellee, D.C. No. 2:10-cr-00923-SJO-

v.

JERMAINE HARDIMAN, AKA J-Killa,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Argued and Submitted June 1, 2015 Pasadena, California

Before: THOMAS, Chief Judge, CALLAHAN, Circuit Judge and KORMAN,**…