Appellants Frank Fernandez ("Fernandez"), Roy Gavaldon ("Gavaldon"), David Gonzales-Contreras ("Contreras"), Dominick Gonzales ("Gonzales"), Jimmy Sanchez ("Sanchez"), and Suzanne Schoenberg-Sanchez ("Schoenberg") (collectively "Appellants") were convicted on a variety of RICO and drug-trafficking charges relating to their participation in or involvement with the Mexican Mafia or "the Eme." They appeal their convictions on numerous grounds. Four of the Appellants also raise challenges to their sentences. We affirm the convictions of all six defendants; affirm the sentences of Fernandez, Gavaldon and Schoenberg; and remand for resentencing in the cases of Contreras, Gonzales, and Sanchez. We will, however, stay the issuance of the mandate as to all appellants except Sanchez pending the Supreme Court's resolution of the impact of Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), on the federal sentencing guidelines.

The district court had jurisdiction over these cases pursuant to 18 U.S.C. § 3231. We have jurisdiction over the consolidated appeals pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). All Appellants filed timely notices of appeal.1

In 1999, a grand jury in Los Angeles filed a twenty-nine-count First Superseding Indictment ("the indictment"), which charged Appellants and eighteen others with a number of racketeering, conspiracy and related counts. Fernandez, Contreras, Gonzales and Sanchez were charged in count one with violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c).2 All Appellants were charged in count two with conspiracy to violate RICO under 18 U.S.C. § 1962(d), and in count three with conspiracy to aid and abet drug trafficking in violation of 21 U.S.C. § 846. Fernandez, Sanchez, and Schoenberg were charged in count four with conspiracy to aid and abet drug distribution within the Los Angeles County Jail ("LACJ") and other California prisons. Fernandez was charged in counts fourteen, fifteen, eighteen and twenty-one with violations of the Violent Crimes in Aid of Racketeering Activity ("VICAR") statute, 18 U.S.C. § 1959, namely, conspiracies to murder four different individuals. Sanchez was charged with two VICAR counts (fifteen and nineteen), also for conspiracy to commit murder. Finally, Gonzales was charged with one VICAR count (twenty-one) for conspiracy to commit murder, and one count (twenty-nine) of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). The jury eventually convicted Appellants on all counts, except that it found Sanchez not guilty on VICAR count nineteen and it hung on VICAR count eighteen against Fernandez.

Although the indictment had originally charged twenty-four individuals, the district court severed a number of death eligible defendants from the non-capital defendants, the latter group including Appellants. Ultimately, eleven defendants including Appellants were tried together in the district court.3

Max Torvisco was an important Eme member who testified for the prosecution about the structure and activities of the organization. Torvisco testified that the Eme is the "gang of all gangs." It is an organization that wields a significant amount of control over several California prisons and jails as well as street gangs in the Los Angeles area. The Eme asserts its control through violence and intimidation.

Torvisco testified that the Eme has both full members and associates. An individual becomes a member of the organization by receiving the votes of three members and by showing loyalty to the organization through committing murder, assault, extortion or drug distribution. The Eme has a number of important rules: (1) members are not to testify against each other; (2) members are not to engage in homosexual acts; (3) members are not to engage in sexual activities with the wives or girlfriends of other members; and (4) no one, not even a member, should attempt to kill or harm a member of the Eme without the vote of three members.

Torvisco testified that the key to the Eme's power was its ability to threaten the members of smaller gangs as well as others with assault and even death if they did not comply with the Eme's demands. In particular, the Eme's power within the prison system gave it leverage even over gang members outside of prison: gang members who did not cooperate with the Eme when they were outside could be dealt with if they ever landed in jail — and many of them did. An Eme member or an associate could place an individual or even a whole gang on the "green light" list, which meant that the individual or gang was targeted for any form of assault up to and including murder. There was also a "hard candy" list, which meant that the individual or gang was targeted for death.

Torvisco testified that Eme members outside of the prison system were engaged in attempts to "organize" street gangs in various parts of the Los Angeles area. A group of Eme members or associates would meet with the members of smaller gangs and explain the Eme's "program:" the gang was to stop engaging in violence without the Eme's approval and would receive a measure of protection from the organization. The gang would also have to pay a "tax"5 on the proceeds from their drug sales. The amount of the tax depended on the size of the gang's territory and the amount of drugs its members were selling. The Eme actually strove to minimize inter-gang violence so each gang would be more efficient in its drug-selling activities and would pay more taxes to the Eme. However, if a gang did not comply with the Eme's demands, it would be placed on the "green light" list. Torvisco testified at trial about the progress the Eme had made in organizing the gangs in East Los Angeles and the west side area of Los Angeles in the mid- to late 1990s.

Appellants Fernandez and Sanchez were identified as members of the Eme. Gavaldon, Contreras and Gonzales were identified as associates. Schoenberg was described as being "associated" with the Eme because she was married to Sanchez.

The government presented evidence that all of the appellants were involved in different aspects of the Eme's taxing of drug trafficking by street gangs. Fernandez, co-defendant Martinez and Torvisco led an effort to "organize" the street gangs in the San Fernando Valley in late 1998. Gonzales, who was Fernandez's stepson, and Contreras were responsible for collecting tax money from gangs in the Valley on behalf of Fernandez and the Eme. Gavaldon was involved in other efforts by Martinez and Torvisco to organize the gangs in the southeast area of Los Angeles, and again, to collect taxes for the Eme. Although Sanchez was incarcerated during the relevant time period, he was able to collect tax payments from gangs on the outside through the help of Torvisco. Torvisco testified that Schoenberg would deliver the payments to Sanchez during her visits to her husband in prison. In addition to testimony by Torvisco and former co-defendant Jesus Rochin, the government presented hundreds of taped conversations which corroborated the appellants' efforts to organize and tax the drug distribution of street gangs.

The government presented evidence that some of the appellants were also involved, not just in the drug taxing schemes, but in direct drug distribution themselves. Fernandez, Contreras, Gonzales and Gavaldon were shown to be engaged in drug trafficking, particularly by supplying drugs to sellers. Evidence was also presented that appellants Fernandez, Sanchez and Schoenberg had engaged in efforts to smuggle drugs into the LACJ, conduct for which they were charged in count four.

Finally, the government presented evidence of conspiracies to commit murders that underlay both the RICO and VICAR counts. Some of these charges related to a conflict — Torvisco described it as a "war" — that developed between two factions of the Eme early in 1998. One faction, led by John "Stranger" Turscak6 and his associate Jesse "Shady" Detevis, confronted another which was led by Martinez, Fernandez, Sanchez, Torvisco and others. The government presented evidence that Martinez, Fernandez and Sanchez had approved the murders of Turscak and Detevis and had discussed plans to carry them out. On Easter Sunday in 1998, Torvisco, Rochin and others actually made an unsuccessful attempt to murder Turscak. The government also presented evidence of a conspiracy to commit murder unrelated to the Turscak dispute. That conspiracy involved Fernandez, Martinez and Gonzales, who discussed killing James "Bouncer" Lopez because of Lopez's interference with the collection of drug taxes in the Valley.

The jury reached a verdict on most counts in October 2000. The jury convicted Appellants on most of the counts charged. Both Fernandez and Sanchez were sentenced to life imprisonment. The remaining appellants were sentenced to the following terms of imprisonment: Gavaldon, 262 months; Contreras, 150 months; Gonzales, 210 months; Schoenberg, 51 months. Each appellant filed a timely notice of appeal.

Except as indicated below, Appellants did not challenge the validity or sufficiency of the indictment in the district court. While challenges to the indictment can be raised at any time, we review for plain error when no objection was raised below. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); United States v. Rodriguez, 360 F.3d 949, 958 (9th Cir.2004).

"Before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Lillard, 354 F.3d 850, 855 (9th Cir.2003) (internal alterations, quotation marks, and citations omitted).

A. Counts One and Two of the indictment (RICO Counts) adequately pled a nexus to interstate commerce

Appellants argue that the indictment failed to allege facts supporting the required nexus to interstate commerce for counts one and two (the two RICO counts). They concede that the indictment stated that the Mexican Mafia was an enterprise, "which is engaged in, and whose activities affect, interstate and foreign commerce," but they claim that the indictment must also allege facts supporting this "conclusory pleading." 2002 WL 32302660 at *52.

The indictment adequately pled the interstate nexus required by the RICO statute. "Generally, an indictment is sufficient if it sets forth the elements of the charged offense so as to ensure the right of the defendant not to be placed in double jeopardy and to be informed of the offense charged." Rodriguez, 360 F.3d at 958 (quoting United States v. Woodruff, 50 F.3d 673, 676 (9th Cir.1995)). We have previously held, in the context of Hobbs Act prosecutions, that an indictment need not set forth facts alleging how interstate commerce was affected, nor otherwise state any theory of interstate impact. See Woodruff, 50 F.3d at 676; see also Rodriguez, 360 F.3d at 958. The rationale of these cases is equally applicable to the interstate nexus requirement in the RICO statute, particularly since both Hobbs Act and RICO prosecutions require a showing of only a de minimis effect on interstate commerce to meet the respective jurisdictional elements. See Woodruff, 50 F.3d at 676 (Hobbs Act); United States v. Shryock, 342 F.3d 948, 985 (9th Cir.2003) (RICO); see also United States v. Juvenile Male, 118 F.3d 1344, 1348 (9th Cir.1997).7

Appellants rely on United States v. ORS, Inc., 997 F.2d 628 (9th Cir.1993), a case involving a criminal indictment for antitrust violations under § 1 of the Sherman Act. In ORS, we required the indictment to include more than "a mere allegation of a relationship to interstate trade or commerce." Id. at 630. Our holding in ORS, however, was premised on the fact that the case involved a prosecution under the Sherman Act, which requires a more significant showing of an effect on interstate commerce. See id. at 629 n. 4 (noting that government needed to allege that ORS's business activities had a substantial effect on interstate commerce). In particular, the ORS court relied on a Supreme Court case, McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980), which had clarified the jurisdictional requirements under the Sherman Act. See ORS, 997 F.2d at 631-32 ("[W]e are bound by the Supreme Court's statements that `jurisdiction may not be invoked under [the Sherman Act] unless the relevant aspect of interstate commerce is identified' ....") (quoting McLain, 444 U.S. at 242, 100 S.Ct. 502).

We conclude that ORS represents the exception rather than the general rule on pleading requirements in the indictment. Because our precedents have previously drawn parallels between the jurisdictional requirements of the RICO statute and the Hobbs Act, see Juvenile Male, 118 F.3d at 1348 (relying on Hobbs Act precedent to reject challenge that RICO prosecution required showing of substantial effect on interstate commerce), we hold that the more lenient pleading requirements of Hobbs Act prosecutions should be applied to RICO cases. The indictment in this case therefore sufficiently pled a nexus to interstate commerce.

B. Counts Three and Four of the Indictment did not need to plead a nexus to interstate commerce

Appellants challenge the sufficiency of the indictment as to counts three and four (the drug conspiracy counts) because it fails to plead a nexus to interstate commerce. Although they recognize that an interstate nexus is not a statutory element of the charged offense under 21 U.S.C. §§ 841 or 846,8 Appellants argue that under recent Supreme Court precedents on the Commerce Clause, an effect on interstate commerce is an implicit element that must be pled in the indictment.

This challenge to the indictment is without merit. We have long held that "no proof of an interstate nexus is required in order to establish jurisdiction of the subject matter" in most prosecutions under 21 U.S.C. § 841(a). United States v. Montes-Zarate, 552 F.2d 1330, 1331 (9th Cir.1977) (per curiam); see also United States v. Tisor, 96 F.3d 370, 374-75 (9th Cir.1996); United States v. Visman, 919 F.2d 1390, 1393 (9th Cir.1990). While we have recently recognized that certain classes of activities prescribed by the CSA may fall beyond the scope of Congress' Commerce Clause power, Raich v. Ashcroft, 352 F.3d 1222, 1229, 1233 (9th Cir.2003) (holding that the CSA may be unconstitutional as applied to the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician), cert. granted, ___ U.S. ___, 124 S.Ct. 2909, ___ L.Ed.2d ___ (U.S. June 28, 2004) (No. 03-1454), the conduct with which the defendants are charged here bears no resemblance to the peculiar circumstances we confronted in Raich. Instead, the conduct charged in this case is the type of drug trafficking activity that this Court has repeatedly held to be within Congress' power to regulate. See Raich, 352 F.3d at 1227 (citing cases); see also United States v. Crenshaw, 359 F.3d 977, 986 (8th Cir.2004) ("It is well-established... that drug trafficking and other forms of organized crime have a sufficient effect on interstate commerce to allow for regulation by Congress."). Because our precedents have rejected the notion that an interstate nexus constitutes an element of offenses under the CSA in the drug trafficking context, the government was not required to plead such nexus in the indictment. See Rodriguez, 360 F.3d at 958.

C. Counts Fourteen, Fifteen and Twenty-One (VICAR Counts) adequately pled motive and intent

Appellants Fernandez, Gonzales and Sanchez argue that the indictment was insufficient because it failed to plead adequately motive and intent elements of counts fourteen, fifteen and twenty-one, counts brought under 18 U.S.C. § 1959, the Violent Crimes in Aid of Racketeering Activity ("VICAR") statute. The government points out that the indictment made a general allegation that the challenged counts, among others, were committed for the "purpose of maintaining and increasing the position of the specified defendants in the Mexican Mafia," see 2003 WL 22706781 at *28-29; that is, the VICAR offenses were so-called "status crimes." Appellants9 claim that a conclusory statement of this element of the offense is insufficient, and that the indictment must plead facts upon which the element is based.

Appellants' arguments fail for the same reasons that their attacks on counts one and two of the indictment fail. We have held that an indictment setting forth the elements of the offense is generally sufficient. See Woodruff, 50 F.3d at 676 ("In the Ninth Circuit, `[t]he use of a `bare bones' information — that is one employing the statutory language alone — is quite common and entirely permissible so long as the statute sets forth fully, directly and clearly all essential elements of the crime to be punished.'") (quoting United States v. Crow, 824 F.2d 761, 762 (9th Cir.1987)). We have also held that the government needs to prove the following elements to establish a VICAR violation when proceeding under the "status crime" theory of the statute: "(1) that the criminal organization exists; (2) that the organization is a racketeering enterprise; (3) that the defendants committed a violent crime; and (4) that they acted for the purpose of promoting their position in the racketeering enterprise." United States v. Bracy, 67 F.3d 1421, 1429 (9th Cir.1995) (citing United States v. Vasquez-Velasco, 15 F.3d 833, 842 (9th Cir.1994)).10 The indictment in this case expressly alleged the required elements and is therefore sufficient.

D. Counts Fourteen, Fifteen and Twenty-One (VICAR Counts) adequately pled the element of a nexus to interstate commerce

Appellants' final collective challenge to the indictment is that it failed to plead adequately an interstate nexus with regard to the VICAR counts. The jurisdictional element of 18 U.S.C. § 1959 requires that the "enterprise" in question be one "which is engaged in, or the activities of which affect, interstate or foreign commerce." 18 U.S.C. § 1959(b)(2); see also Riddle, 249 F.3d at 538. The general allegations in the indictment relating to the VICAR counts alleged that the Mexican Mafia was such an enterprise. As we explained above, an indictment is sufficient if it sets forth the elements of the charged offense. The indictment therefore adequately pled the interstate nexus as to these counts.

E. The district court properly declined to dismiss the RICO charges against Sanchez

Sanchez argues that the district court erred in denying his motion to dismiss the indictment because it failed to charge him properly with conspiracy to murder Nicholas Navarro. Because Sanchez raised this challenge to the indictment in the district court, we review the district court's decision de novo. United States v. San Juan-Cruz, 314 F.3d 384, 387 (9th Cir.2002).

The district court properly rejected Sanchez's motion to dismiss the indictment. The indictment did not charge Sanchez with conspiracy to murder Navarro, and the government was therefore not required to set out the elements of that offense in the indictment. To the extent that the allegations regarding Navarro do not qualify as overt acts supporting the conspiracy count, they are simply surplusage. See Bargas v. Burns, 179 F.3d 1207, 1216 n. 6 (9th Cir.1999) ("We have repeatedly held that language that describes elements beyond what is required under statute is surplusage and need not be proved at trial.") (citation omitted). Moreover, we have previously noted that such surplusage "may be subject to a motion to strike at the instance of the [defendants] but surplusage is not fatal." United States v. Root, 366 F.2d 377, 381 (9th Cir.1966) (citation omitted); see also United States v. McIntosh, 23 F.3d 1454, 1457 (8th Cir.1994) ("Allegations in the indictment that are not necessary to establish a violation of a statute are surplusage and may be disregarded if the remaining allegations are sufficient to charge a crime."), quoted with approval in United States v. Garcia-Paz, 282 F.3d 1212, 1217 (9th Cir. 2002). Here, Sanchez asked the district court not just to strike the allegations, but to dismiss the indictment because of mere surplusage. The district court did not err in refusing to dismiss the indictment on that basis.

When a claim of insufficient evidence is preserved by making a motion for acquittal at the close of the evidence, we review de novo the district court's denial of the motion. United States v. Carranza, 289 F.3d 634, 641 (9th Cir.2002), cert. denied, 537 U.S. 1037, 123 S.Ct. 572, 154 L.Ed.2d 458 (2002). There is sufficient evidence to support a conviction "if, viewed in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Odom, 329 F.3d 1032, 1034 (9th Cir.2003) (citation omitted).

A. Count One: Racketeering (Substantive Violations)

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

(emphasis added). Thus, a violation of 18 U.S.C. § 1962(c) is established by "proof of `(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.'" Howard v. America Online Inc., 208 F.3d 741, 746 (9th Cir.2000) (quoting Sedima S.P.R.L. v. Imrex Corp., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985)). A pattern of racketeering activity, in turn, requires at least two predicate acts, which include "any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in [narcotics]," that is an offense under state law "and punishable by imprisonment for more than one year." 18 U.S.C. §§ 1961(1), 1961(5).11

1. Predicate Acts (Conduct of Enterprise's Affairs)

Fernandez, Sanchez and Gonzales argue that there was insufficient evidence to support their racketeering convictions because the only predicate acts found by the jury were the conspiracies to murder Turscak, Detevis and Lopez, which were not part of the conduct of the enterprise's affairs, but rather the acts of individuals who had personal feuds with the intended victims. As such, they assert, the conspiracies could not be substantive RICO violations.

First, contrary to Appellants' arguments, the jury specifically found that Fernandez and Sanchez had committed two predicate acts in addition to the charged murder conspiracies — the drug trafficking conspiracies in Los Angeles and in jail. Thus, even if there were insufficient evidence on the murder conspiracies, the jury found the requisite minimum of two predicate acts for these two Appellants.12

Second, the argument that conspiracies to murder other members of the enterprise could not be part of the enterprise's affairs is a variation on a theme reprised throughout Appellants' briefs, the central assertion of which is that any violence between factions within an organization either proves that the group was not a RICO enterprise, or that the violence could not be considered a predicate act of the enterprise's racketeering activity. See, e.g., 2002 WL 32302660 at *66, 70, 84. Similar arguments have been flatly rejected by the Second Circuit, and Appellants' argument is inconsistent with the jurisprudence of at least two other circuits.

In United States v. Orena, 32 F.3d 704 (2d Cir.1994), a case involving the violent `war' between factions of the Colombo Family criminal enterprise, the Second Circuit rejected the appellant's argument that "the evidence was legally insufficient to support the RICO verdicts because no rational juror could have concluded that the Colombo Family enterprise continued to exist after July 1991, when the Orena and Persico factions commenced their conflict." Id. at 710. The court held that "[t]he existence of an internal dispute does not signal the end of an enterprise, particularly if the objective of, and reason for, the dispute is control of the enterprise." Id. (concluding that the evidence did show the existence of an ongoing enterprise, in part because "[a] surveillance recording indicated that Colombo Family members expected relationships to return to normal after the war was over") (citation omitted). See also United States v. Brady, 26 F.3d 282, 284-85, 288 (2d Cir.1994) (holding, in a case like Orena where the indictment alleged a dispute between factions for control of the enterprise, that evidence admitted at trial "was relevant to prove the existence of a war, that in turn was essential to prove the existence of the [murder] conspiracy" that was "part of the same internal struggle for control of the Family"); United States v. Coonan, 938 F.2d 1553, 1560-61 (2d Cir.1991) (rejecting a sufficiency challenge that argued "violent in-fighting somehow proves that the [enterprise] was never a cohesive, ongoing association" because "evidence clearly established that, regardless of internal disputes and membership changes, the [group's] power structure endured and its members functioned as a unit" during the relevant period); United States v. Marino, 277 F.3d 11, 26 (1st Cir.2002) (noting, in the course of a discussion on evidence admissibility, that two factions existed within the same overall enterprise despite a conflict between them); United States v. Pungitore, 910 F.2d 1084, 1100-01 (3d Cir. 1990) (holding that"[t]he evidence also shows that the appellants killed in response to a member's showing of disloyalty to the organization ... and to eliminate a faction of the enterprise's membership which threatened [one defendant's] leadership").

Moreover, in another Mexican Mafia case, we upheld the convictions of several Eme members against insufficient evidence challenges, where one count of the indictment charged five defendants with conspiracy "to kill [another member] because he was politicking against other members, threatening to kill other members, claimed to have made an individual a member without following the proper procedure, and for generally causing dissension within the organization." Shryock, 342 F.3d at 967. See United States v. Shryock, Appellants' Joint Opening Br., 2001 WL 34091052, at *170 (arguing that evidence was insufficient to establish enterprise because it showed "the existence of independent groups or members often in conflict with each other without any decision making structure"); Shryock, 342 F.3d at 988-89 (summarily rejecting all sufficiency challenges).

The evidence presented at trial showed that despite the violent dispute between the Martinez/Torvisco/Fernandez and Turscak/Detevis factions, members of the group still identified themselves as members or associates of the Eme; still invoked the reputation and power of the group as a whole when dealing with people outside the organization; and expected the entire organization to endure beyond the `war,' after which relationships and methods of operation would return to normal. Despite the dispute between two factions within the organization, therefore, the evidence clearly established a single Eme enterprise.

2. Existence of RICO enterprise: ad hoc decision-making13

Appellants argue that the government did not meet its burden of proving substantive violations of the RICO statute because the evidence adduced at trial demonstrated only ad hoc decision-making. This challenge to the sufficiency of the evidence is based on the second element identified in Sedima as necessary to proving a violation of § 1962(c): that the racketeering activity be conducted by an "enterprise." 473 U.S. at 496, 105 S.Ct. 3275. The statutory definition of "enterprise includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). The indictment specifically alleged that the type of enterprise involved in this case is "an association in fact of individuals."

Under Supreme Court and Ninth Circuit precedent, establishing the existence of an associated-in-fact enterprise requires proof (1) of an ongoing organization, formal or informal, (2) which exhibits a hierarchical or consensual decision-making structure beyond that inherent in the alleged racketeering activity, and (3) in which the various associates function as a continuing unit. United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981); Chang v. Chen, 80 F.3d 1293, 1297, 1299-1300 (9th Cir.1996). In order for a group of individuals to qualify as an enterprise, "the [decision-making] structure should provide some mechanism for controlling and directing the affairs of the group on an on-going, rather than an ad hoc, basis." Chang, 80 F.3d at 1299 (citation and internal quotation marks omitted); see also Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1083 (9th Cir.2000) ("A group whose members collectively engage in an illegal act, in-and-of-itself, does not constitute an `enterprise' for the purposes of RICO.").14

In their brief, Appellants support their characterization of the Eme as "an anarchy," 2002 WL 32302660 at *69, by pointing to apparent confusion about who was on the "green light" list, the process by which associates became members, the concentration of decision-making power in the hands of a few individuals, and disputes between individuals and factions within the Eme. Even if these appraisals of the evidence are accurate, they neither contradict nor undermine the jury's conclusion that the Eme was a RICO enterprise, for none is inconsistent with the existence of an associated-in-fact enterprise.

First, as discussed above, the mere existence of a dispute between rival factions within an organization is not dispositive of whether it qualifies as an associated-in-fact enterprise. Second, as the Second Circuit has noted, "[c]ommon sense suggests that the existence of an association-in-fact is often-times more readily proven by what it does, rather than by abstract analysis of its structure." Coonan, 938 F.2d at 1559 (emphasis in original) (internal citations and quotation marks omitted). The evidence at trial clearly established that the drug taxing and drug trafficking conspiracies were undertaken by individuals on behalf of the enterprise, and were in fact an integral part of the conduct of the Eme's affairs. Additionally, the murder conspiracies were proof of the existence of an enterprise, because the dispute was between different factions of the enterprise struggling for position within and control of the organization. Cf. United States v. Amato, 15 F.3d 230, 234 (2d Cir.1994) (holding, in context of criminal prosecution of members of one faction within a criminal enterprise that "[r]ivalry and dissension, however violent, do not necessarily signify dissolution of a conspiracy.").

In this case there was evidence of more than the racketeering acts and conspiracies. Wiretap evidence showed, and several witnesses testified, that the Eme was a criminal organization of long standing, with a well-defined set of rules that were enforced by violence or the threat of violence,15 consistent procedures for recruitment and advancement, and the overall goal of controlling Latino gangs in southern California by maintaining and projecting its power both inside and outside of prison.

3. Sanchez: Predicate Act Not Proved Under California Law16

The indictment alleged that "[b]eginning on a date unknown to the Grand Jury and continuing at least until January 1999," several defendants including Sanchez "conspired to murder John Turscak, aka `Stranger,' and a co-conspirator committed an overt act in furtherance of the conspiracy, in violation of California Penal Code Sections 182 and 187." Sanchez claims that there was insufficient evidence at trial to convict him of the conspiracy to murder John Turscak because under California law, he committed no crime: neither he nor Martinez committed an overt act between November 1998 (the date that he joined the conspiracy) and February 1999. His arguments in support of this claim fail, because it is clear under California conspiracy law that he bears responsibility for the actions of his co-conspirators.

Under California law, "[a] conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit" a specified crime, "with the further specific intent to commit that crime ..., followed by an overt act committed in this state by one (or more) of the parties for the purpose of accomplishing the object of the agreement." CAL. JURY INSTRUCTIONS, CRIMINAL (7th ed.2004) 6.10; see also People v. Heredia, 257 Cal.App.2d 862, 65 Cal.Rptr. 402, 404 (1968). It is clear from the record that Sanchez agreed with others to kill Turscak or to have him killed, and his arguments focus on the lack of evidence of an overt act after he joined the conspiracy.

California law does not require that each defendant charged with conspiracy have committed an overt act; it is sufficient that at least one co-conspirator have committed an overt act in furtherance of the conspiracy. See CAL. PENAL CODE § 184 (overt act must be committed "by one or more of the parties to such agreement"); People v. Russo, 25 Cal.4th 1124, 1135, 108 Cal.Rptr.2d 436, 25 P.3d 641 (2001) ("Moreover, any one of the conspirators, and not necessarily the charged defendant, may commit the overt act to consummate the conspiracy."). It is unclear, however, whether the overt act must be committed while the defendant is a part of the conspiracy in order for it to be used against him. Compare CAL. JURY INSTRUCTIONS, CRIMINAL 6.10 ("It is not necessary to the guilt of any particular defendant that he personally committed an overt act, if he was one of the conspirators when the alleged overt act was committed.") (alternative pronouns omitted), with 1 WITKIN & EPSTEIN, CALIFORNIA CRIMINAL LAW (3d ed. 2000) Elements § 95 ("[O]ne who joins with the existing conspirators in the criminal plan does not create a new conspiracy but becomes a member of the existing conspiracy. Hence, an overt act committed prior to the new member joining will be just as effective against him or her as against the prior parties....").17

Even if the overt act must have been committed while Sanchez was a member of the conspiracy, his contention that no such act was committed between November 1998 and February 1999 is not supported by the evidence. In December 1998, Martinez followed Turscak's wife home on the freeway in order to determine where the Turscaks lived, so that Turscak could be killed after he was released from prison. This overt act, committed after it was clear that Sanchez had joined the conspiracy, is the last necessary element that establishes Sanchez was a member of a conspiracy to murder Turscak. Both his challenge to his conviction on count fifteen (which alleged that he participated in this conspiracy for a particular purpose) and his challenge to count one (which included this conspiracy as one of the predicate acts in which Sanchez participated) fail.

B. Counts Two, Three and Four: RICO Conspiracy, Drug `Taxing' Conspiracy, Drug Trafficking in Jail Conspiracy

1. Existence of single interdependent conspiracy in each count

Whether a single conspiracy has been proved is a question of the sufficiency of the evidence. United States v. Duran, 189 F.3d 1071, 1078 (9th Cir.1999) (citing United States v. Bibbero, 749 F.2d 581, 586 (9th Cir.1984)). The test for determining whether a single conspiracy, rather than multiple smaller conspiracies, has been proved was outlined most recently in Duran:

A single conspiracy can only be demonstrated by proof that an overall agreement existed among the conspirators. Furthermore, the evidence must show that each defendant knew, or had reason to know, that his benefits were probably dependent upon the success of the entire operation. Typically, the inference of an overall agreement is drawn from proof of a single objective ... or from proof that the key participants and the method of operation remained constant throughout the conspiracy. The inference that a defendant had reason to believe that his benefits were dependent upon the success of the entire venture may be drawn from proof that the coconspirators knew of each other's participation or actually benefitted from the activities of his coconspirators.

189 F.3d at 1080 (internal citations, alterations, and quotation marks omitted); see also United States v. Bibbero, 749 F.2d 581, 587 (9th Cir.1984) (holding that "[t]he relevant factors include the nature of the scheme; the identity of the participants; the quality, frequency, and duration of each conspirator's transactions; and the commonality of time and goals").

Appellants assert that instead of the single conspiracies charged in counts two, three and four, the evidence at trial proved only the existence of multiple smaller conspiracies.18 With regard to count three, which alleged a drug trafficking and taxing conspiracy in the greater Los Angeles area, Appellants concede that "these many conspiracies often involved some of the same people," but assert that "they were separate territorial activities, the success of each of which was not dependent upon the success of any others." 2002 WL 32302660 at *75. With regard to count four, Appellants assert that the prosecution's evidence showed only the existence of multiple smaller conspiracies to sell drugs in county jail and state prison.

This challenge focuses on the problem of variance between the indictment and the proof at trial: if the indictment alleges a single conspiracy, but the evidence at trial establishes only that there were multiple unrelated conspiracies, there is insufficient evidence to support the conviction on the crime charged, and the affected conviction must be reversed. See United States v. Antonakeas, 255 F.3d 714, 723 (9th Cir.2001) (discussing variance theory based on Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).

In count three, the indictment alleged that all six appellants participated in a conspiracy to sell drugs on the street and demand taxes from "narcotics traffickers and street gangs ... in order to continue their narcotics trafficking activities free of interference from the Mexican Mafia," and that "failure to pay the taxes would result in retribution, both on the streets and in penal institutions, by the Mexican Mafia."

While Appellants are correct that there were different sub-groups operating in different areas of Los Angeles, the method of operation remained constant, and included the demand for payment of tributes or taxes, the promise of protection and support in exchange for payment, and the threat of or use of violence if payment was not made. Moreover, the operation of different Eme groups in different areas of town does not contradict the existence of a single conspiracy, as the jury could reasonably have concluded (especially given the evidence presented to this effect) that the actions of the enterprise's members were co-ordinated, so as to ensure that no two groups were taxing in the same area. Last, even Appellants' description of the conspiracies reveals the common participation of key senior Eme members, another factor supporting the conclusion of a single conspiracy in which senior members of the enterprise co-ordinated and managed the operations of their subordinates. See 2002 WL 32302660 at *76-79 (common participation of Martinez, Torvisco and Fernandez with various associates).

In count four, the indictment alleged that Fernandez, Sanchez and Schoenberg conspired to smuggle narcotics "into the Los Angeles County Jail and other California penal facilities" where one-third would be sent to Eme members, and that "a portion of the profits from the sale of [these] narcotics" would be sent to these defendants and other Eme members. Here again, the evidence adduced at trial showed consistent methods for smuggling drugs into jail. More importantly, there was an established system for the distribution and sale of drugs once inside a jail, which involved the standard tribute given to Eme members, the advertisement of drugs for sale, the method of payment, and the threat of violence for nonpayment.

Appellants' arguments in support of a theory of multiple conspiracies are meritless. First, although they concede that Ramirez testified that "some of the drugs belonged to the Mexican Mafia," and that he had agreed to "sell drugs within state prison for Mr. Fernandez, as would others associated with the Mexican Mafia," 2002 WL 32302660 at *79, 80 (emphasis added), they maintain that "no evidence ... was presented to suggest that any other appellant knew about these private schemes, much less took part in the conspiracy to sell these drugs." Even if true, this fact does not mean that there was not a single overall conspiracy to sell drugs in penal facilities. See Bibbero, 749 F.2d at 587 (holding that "[a] single conspiracy may involve several subagreements or subgroups of conspirators"). Second, the assertion that "each ... person's drug sales... constitute[s] a different conspiracy" is directly contradicted by the evidence of a generalized, coherent and consistent scheme for the reception and distribution of narcotics and division of profits from sale.

For each of the conspiracies alleged in counts three and four, the evidence showed not only that members and associates knew of the activities of others within the group, but that the entire operation of the drug taxing and jail distribution schemes was heavily dependent on the reputation and strength of the Mexican Mafia as an entire organization, and that each scheme was intended to benefit all members and associates within the enterprise. The evidence at trial established a single interdependent conspiracy for each of counts three and four. See Kotteakos, 328 U.S. at 773, 66 S.Ct. 1239 (distinguishing between many co-conspirators, who "invite mass trial by their conduct," and "those who join together with only a few, though many others may be doing the same and though some of them may line up with more than one group").

2. Schoenberg's challenge to Count Two: no conspiracy because no agreement to direct Eme's affairs

Relying on the governing case in this circuit on RICO conspiracy, Neibel v. Trans World Assur. Co., 108 F.3d 1123 (9th Cir.1997), Schoenberg asserts that she cannot be convicted for conspiracy to violate RICO if she did not agree to direct the enterprise's affairs. We conclude that Neibel is no longer good law because it is inconsistent with subsequent Supreme Court precedent. Under the appropriate test outlined in Salinas v. United States, 522 U.S. 52, 62, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997), the evidence presented at trial was sufficient to support Schoenberg's conviction under § 1962(d) for conspiracy to violate § 1962(c).

Title 18 U.S.C. § 1962(d) provides, in relevant part: "It shall be unlawful for any person to conspire to violate any of the provisions of subsection ... (c) of this section." In Reves v. Ernst & Young, 507 U.S. 170, 184, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993), the Supreme Court held that liability under § 1962(c), for substantive violations of the RICO statute, was limited to "those who participate in the operation or management of an enterprise through a pattern of racketeering activity." After reasoning that "[i]n order to `participate, directly or indirectly, in the conduct of such enterprise's affairs,' one must have some part in directing those affairs," id. at 179, 113 S.Ct. 1163 (quoting § 1962(c)), the Court cautioned that its adoption of the `operation or management' test did not mean that liability was limited to upper management. "An enterprise is `operated' not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management." Id. at 184, 113 S.Ct. 1163; see also id. at 179, 113 S.Ct. 1163 ("Of course, the word `participate' makes clear that RICO liability is not limited to those with primary responsibility for the enterprise's affairs ... but some part in directing the enterprise's affairs is required.").

In Neibel, we adopted the reasoning of the Third Circuit in United States v. Antar, 53 F.3d 568, 581 (3d Cir.1995), in which that court extended Reves' § 1962(c) holding to conspiracy convictions under § 1962(d), and concluded:

[W]e believe that a distinction can be drawn between, on the one hand, conspiring to operate or manage an enterprise, and, on the other, conspiring with someone who is operating or managing the enterprise. Liability under section 1962(d) would be permissible under the first scenario, but, without more, not under the second.

Antar, 53 F.3d at 581 (emphasis in original) (quoted in Neibel, 108 F.3d at 1128). In applying this approach to the insufficient evidence challenge before it, the Neibel panel concluded: "We agree with the Third Circuit that to uphold the jury's verdict in this case after Reves, there must have been substantial evidence that [the defendant] agreed to have some part in directing [the enterprise's] affairs." 108 F.3d at 1128 (internal quotation marks omitted) (emphasis in original).19

In Salinas, a unanimous decision handed down almost nine months after Neibel, the Supreme Court held that a sheriff's deputy could be convicted of conspiracy under § 1962(d) for his role in a scheme that violated the federal bribery statute even though he neither committed nor agreed to commit the predicate acts that are required for a substantive violation of § 1962(c). After outlining "certain well-established principles" of the law on conspiracies that were equally applicable to RICO conspiracies, 522 U.S. at 63-65, 118 S.Ct. 469, the Court held that "[t]he evidence showed that [the sheriff] committed at least two acts of racketeering activity when he accepted numerous bribes and that [the deputy] knew about and agreed to facilitate the scheme. This is sufficient to support a conviction under § 1962(d)." Id. at 66, 118 S.Ct. 469 (emphasis added). The Salinas court did not refer to its earlier Reves opinion and its adoption of the operation or management test required to sustain a conviction under § 1962(c), nor did it mention the Antar-Neibel approach, which appeared to require more than knowledge and an agreement to facilitate the enterprise's activities for a § 1962(d) conviction. The Court did note, however, that "[a] conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor." Id. at 65, 118 S.Ct. 469.

In response, over three years later, the Third Circuit stated unequivocally:

[W]e hold that any reading of United States v. Antar to the effect that conspiracy liability under section 1962(d) extends only to those who have conspired personally to operate or manage the corrupt enterprise, or otherwise suggesting that conspiracy liability is limited to those also liable, on successful completion of the scheme, for a substantive violation under section 1962(c), is inconsistent with the broad application of general conspiracy law to section 1962(d) as set forth in Salinas.

Smith v. Berg, 247 F.3d 532, 534 (3d Cir. 2001) (internal citations omitted). The Smith panel found that Antar's "novel distinction," upon which Neibel had relied, "was unnecessary to our holding, as [the opinion] concluded, in effect, that the defendant met either standard." Id. at 536. The Third Circuit read the Supreme Court's decision in Salinas, upholding the conspiracy conviction of a defendant who had been acquitted of substantive RICO violations, as a rejection of the view that a violation of § 1962(c) was a prerequisite for a violation of § 1962(d). Id. at 537. Although it is unclear whether the Smith panel was dismissing Antar's restrictions as mere dicta, or concluding that any binding statement of the law had been vitiated by Salinas, compare id. at 536, with id. at 537, its holding on § 1962(d)'s requirements is straightforward: "a defendant may be held liable for conspiracy to violate section 1962(c) if he knowingly agrees to facilitate a scheme which includes the operation or management of a RICO enterprise." Id. at 538. After Smith, ours was the only circuit in which the Reves operation or management test was applied to RICO conspiracies. See id. at 536 n. 8.

We now agree with the Third Circuit that the rationale underlying its distinction in Antar, and our holding in Neibel, is no longer valid after the Supreme Court's opinion in Salinas. Accordingly, this case presents a situation similar to Miller v. Gammie, in which we held that "where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider itself bound by the later and controlling authority, and should reject the prior circuit opinion as having been effectively overruled." 335 F.3d 889, 893 (9th Cir.2003) (en banc). We adopt the Third Circuit's Smith test, which retains Reves' operation or management test in its definition of the underlying substantive § 1962(c) violation, but removes any requirement that the defendant have actually conspired to operate or manage the enterprise herself. Under this test, a defendant is guilty of conspiracy to violate § 1962(c) if the evidence showed that she "knowingly agree[d] to facilitate a scheme which includes the operation or management of a RICO enterprise." Smith, 247 F.3d at 538.

Schoenberg's role in the activities of the Eme enterprise is enough to justify her § 1962(d) conspiracy conviction. See Howard, 208 F.3d at 751 (holding that, in addition to the general conspiracy principles mentioned in Salinas, "[a] defendant must also have been `aware of the essential nature and scope of the enterprise and intended to participate in it.'") (quoting Baumer v. Pachl, 8 F.3d 1341, 1346 (9th Cir.1993)). The evidence at trial showed that Schoenberg collected protection money for the Eme on behalf of her husband, an Eme member; passed messages to her husband and other Eme members in order to facilitate communication between murder conspirators; smuggled drugs into prison; and accepted payment for drugs sold on the street. We affirm her conviction for conspiracy to violate RICO.20

3. Sanchez's challenge to Count Two: general insufficiency

Like his arguments in relation to count one, Sanchez's challenge to his conviction of RICO conspiracy in count two also focuses on whether or not certain overt acts were committed. The government construes these arguments as assertions that Sanchez must have committed some overt act in order to be convicted of conspiracy, and correctly argues that the prosecution was not required to prove that he committed any such act with respect to count two. See 2003 WL 22706781 at *72-73 (citing Salinas, 522 U.S. at 64-65, 118 S.Ct. 469).

To the extent, however, that Sanchez's arguments are simply directed toward the sufficiency of the evidence that he even conspired to violate RICO, they are belied by the evidence adduced at trial, which established Sanchez's role in the enterprise's activities, including collecting drug taxes, drug distribution in jail, and the conspiracy to murder Turscak. Moreover, his arguments are inconsistent with governing RICO case law, under which a defendant convicted of a substantive violation of § 1962(c) is also guilty of a § 1962(d) conspiracy to violate RICO, as long as the separate elements of the crime of conspiracy are met. See, e.g., United States v. Starrett, 55 F.3d 1525, 1549 (11th Cir.1995) (holding that because evidence was sufficient to support defendants' § 1962(c) convictions, and jury could infer from evidence that defendants each manifested an agreement to participate in enterprise's affairs, evidence was sufficient to support defendants' § 1962(d) convictions for RICO conspiracy); United States v. Frega, 179 F.3d 793, 808-10 (9th Cir.1999) (holding that judge erred in not explaining to jury that it could consider predicate acts listed in relation to substantive RICO count when deciding whether defendants had also conspired to violate RICO); United States v. Marino, 277 F.3d 11, 18 (1st Cir.2002) (noting, in case of defendants convicted under §§ 1962(c) and (d) that, although the two are legally distinct crimes, "[t]he substantive RICO and RICO conspiracy counts required the defendants to be found guilty of at least two racketeering acts or predicate acts."); United States v. Bennett, 44 F.3d 1364, 1374 (8th Cir.1995) (holding that in addition to the elements of the substantive violation, "[a] RICO conspiracy requires proof of the additional element of an agreement").

4. Gavaldon's challenge to Count Two: Not an Eme "member"

Roy Gavaldon argues that there was insufficient evidence at trial to support his conviction for participation in the racketeering conspiracy because he was not a member of the enterprise. Gavaldon's arguments confuse the factual particularities of the enterprise in this case with the legal standards for participation in a racketeering enterprise: the fact that he was not a "member" of the Eme, i.e., did not have decision making authority within the group, did not mean that he did not conspire to participate in the conduct or operation of the enterprise. As an Eme associate who was ordered to handle the southeast Los Angeles gangs, and to assault someone who had "burned" Eme members, and who collected payments on behalf of Eme members, Gavaldon shared the liability of other individuals within the enterprise, even if he was not a leader within the group. See Salinas, 522 U.S. at 65, 118 S.Ct. 469; cf. United States v. Brady, 26 F.3d 282, 289-90 (2d Cir.1994) (rejecting as "semantic and ... entirely without merit" argument that VICAR murder conspiracy conviction should be reversed because defendant was "merely an associate" and therefore "had no position in the Family" and noting that witness testimony and the indictment "make it clear that associates are considered to be members of the enterprise, even though they are not `made members' of the Family").21

C. Counts Fourteen, Fifteen and Twenty-One: VICAR Murder Conspiracies

The federal statute on violent crimes in aid of racketeering activity ("VICAR statute") provides in relevant part:

Whoever, [1] as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or [2] for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished[.]

18 U.S.C. § 1959(a) (emphasis added).

The statute clearly contemplates two alternative theories of motive for the commission of VICAR offenses: either the defendant received something of pecuniary value from the racketeering enterprise to commit the crime ("quid pro quo crime" or "murder for hire"); or the crime was committed to achieve, maintain or increase the defendant's status in the enterprise ("status crime"). It is the second motive that was alleged by the government in this case.

Fernandez, Sanchez and Gonzales raise five challenges to the evidence supporting their VICAR convictions: (1) no substantial evidence was adduced to prove the commission of crimes for quid pro quo consideration; (2) a status crime must be committed to "enhance one's position in the eyes of the organization itself, not just ... in the eyes of individuals associated with, or factions of, the organization," 2002 WL 32302660 at *84; (3) the motive suggested by the government was "nonsensical" because "[i]t would not enhance, maintain or establish any of the appellants' positions within the Mexican Mafia to eliminate the very people they would allegedly be trying to impress by their actions," id. at *85; (4) the government failed to prove that the crimes, even if alleged to be status crimes, were committed on behalf of the enterprise, not simply to benefit individuals within the enterprise, id. at *85, 89-92; and (5) insufficient evidence that the crimes alleged were committed for the motives ascribed to the defendants. Id. at *86-87. All five claims are meritless.

First, the indictment clearly alleged that "the defendants specified below committed the offenses specified below, each such offense having been committed for the purpose of maintaining and increasing the position of the specified defendants in the Mexican Mafia." The government's theory of the case—from the terms of the indictment to the evidence presented at trial—was that the participants in the VICAR murder conspiracies intended to commit status crimes, not quid pro quo crimes. No evidence was presented to support an allegation that was never made by the prosecution. Appellants' first challenge thus provides no basis for reversing the VICAR convictions.

Appellants cite no case (nor can one be found) to support their second contention, that the motive for committing a status crime must be to enhance one's position in the eyes of the enterprise itself, not individuals or factions within the enterprise. See, e.g., United States v. Tse, 135 F.3d 200, 206 (1st Cir.1998) (adopting the position of the Second and Fourth Circuits in holding that, for VICAR status crime conviction, a jury is required to find only that defendant's general motive was to maintain his position in enterprise and that he acted to further his membership in enterprise, and mentioning no other requirements) (citing United States v. Fiel, 35 F.3d 997, 1004-05 (4th Cir.1994); United States v. Concepcion, 983 F.2d 369, 380 (2d Cir.1992)). Moreover, Appellants' distinction between the individuals and "the enterprise itself" appears to mirror their general confusion about the type of RICO enterprise involved in this case. Where the indictment alleges, and the government sets out to prove, the existence of an associated-in-fact enterprise, it is clear that the role of individuals within that enterprise is particularly important. Enhancing one's status in the eyes of certain individuals, especially if they are in leadership roles within the group, could very well lead to promotion within the enterprise.

Appellants' third argument—that the alleged motive of a status crime is nonsensical because the intended victims were themselves members of the enterprise—is a repackaged version of the assertion that an enterprise cannot exist where different factions fight for control. It is equally meritless. Conspiring to kill members of a rival faction within the enterprise is perfectly consistent with an attempt to maintain or increase one's position in the group, especially when the intended victims were not leaders in the group and the conspiracy takes place in the context of a power struggle within the group.

Contrary to the Appellants' assertions in their fourth challenge to their VICAR convictions, the government need not prove that the status-crime was committed on behalf of the organization itself, rather than to benefit the individual conspirators. That requirement is relevant only to allegations of quid pro quo crimes. Compare Vasquez-Velasco, 15 F.3d at 842 (no requirement that status crime be on behalf of organization itself), and Concepcion, 983 F.2d at 381 (same, and referring to status crime motivation as "self-promotion"), with United States v. Andino, 101 F.Supp.2d 171, 175 (S.D.N.Y.2000) ("To convict a defendant under the `murder for hire' provision of § 1959(a), the government must prove [1] that the defendant was paid or promised payment for attempting or conspiring to commit murder[; and] [2] that the payment or promise of payment was received from an enterprise engaged in racketeering activity.... Put differently, in order for the payment to have been received from the enterprise, Castro must have been acting as an agent of the enterprise, not in his personal capacity, when he made the payment to Andino.") (emphasis added). Appellants' reliance on Andino, a case involving quid pro quo offenses, is misplaced.

Last, in their fifth claim, Appellants challenge the evidence supporting the individual motives ascribed to them in their murder conspiracy convictions. Relying on the leading Second Circuit case on status crime VICAR convictions, they assert that there was no evidence that the enterprise expected Gonzales, Sanchez and Fernandez to commit the crimes; or that they knew the enterprise expected them to commit these crimes; or that the commission of these crimes would actually maintain or enhance their positions within the Eme. See Concepcion, 983 F.2d at 381 ("We consider the motive requirement satisfied if the jury could properly infer that the defendant committed his violent crime because he knew it was expected of him by reason of his membership in the enterprise or that he committed it in furtherance of that membership.").

For all the reasons explored above—the importance of individuals within an associated-in-fact enterprise, the violent methods used to enforce the Eme's strict rules, and the fact that maintenance of an individual's position within an organization that contains two rival factions can hinge on eliminating threats to one's power and prestige within the group—we hold that a rational trier of fact could have found that these defendants conspired to murder their rivals in order to secure their own positions within the Eme and maintain its overall cohesion as a single organization. We reject Appellants' challenge to their VICAR convictions.

III. Motions to suppress wiretap evidence and requests for an evidentiary hearing

A. Probable cause and necessity to support the wiretaps

Appellants argue that the district court erred in failing to suppress evidence gathered by the government through the wiretapping of the home phone lines of Fernandez ("Line 6") and co-defendant Martinez ("Line 7"). Appellants claim that the wiretap applications contained false and misleading statements and omitted important information, so that probable cause would not have been established if the applications had been prepared properly. Appellants argue that, at a minimum, they made a sufficient showing of misrepresentations in the wiretap applications to require the district court to conduct a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Appellants further claim that the wiretap applications for the relevant phone lines failed to establish the "necessity" requirement set out in 18 U.S.C. § 2518(1)(c).

"A district court's denial of a motion to suppress evidence is reviewed de novo and underlying factual issues are reviewed for clear error." United States v. Lynch, 367 F.3d 1148, 1159 (9th Cir.2004) (citation omitted). "We review de novo whether a full and complete statement of the facts was submitted in compliance with 18 U.S.C. § 2518(l)". United States v. Blackmon, 273 F.3d 1204, 1207 (9th Cir. 2001) (citation omitted). "The ultimate question of whether a false statement or omission is necessary to a finding of probable cause is a mixed question of law and fact" reviewed de novo. United States v. Tham, 960 F.2d 1391, 1395 (9th Cir.1991). If a full and complete statement of facts was submitted, the court reviews the issuing judge's decision that the wiretap was necessary for an abuse of discretion. Blackmon, 273 F.3d at 1207.

Appellants filed or joined a number of separate motions at the district court challenging the validity of the wiretap applications for Lines 6 and 7, and for a cell phone used by Detevis ("Line 1") to the extent that it provided the basis for the applications for Lines 6 and 7. The district court denied all the motions.

The government applications for the three lines in question were supported by affidavits from FBI Special Agent David Olsen ("Olsen affidavits"). Although much of the language used in the Olsen affidavit for Line 1 is repeated verbatim in the later affidavits, the latter do build on the information developed through the earlier wiretaps.

The government argues that Appellants lack standing to challenge the validity of the wiretap as to Line 1 because none of them was targeted under that line. Even assuming this is the case, any meritorious challenges raised by Appellants would apply equally to the wiretap applications for Lines 6 and 7, and the government does not appear to challenge Appellants' standing regarding those lines. The government also argues that Contreras did not join in any of the motions to suppress the evidence gathered through wiretaps. The district court record, however, reflects that Contreras did join in co-defendants Mercado and Nieto's motion regarding Line 1 and Martinez's motion regarding Lines 6 and 7. We therefore consider the merits of the claims as to all appellants.

2. Material misstatements or omissions and probable cause

Appellants argue that the facts omitted from the Olsen affidavits, if considered with the rest of the information provided, would not establish probable cause for the wiretaps. In order to issue a wiretap order, the district court must find probable cause to believe "(1) that an individual is committing, has committed, or is about to commit specified offenses, ... (2) that communications relevant to that offense will be intercepted through the wiretap, and (3) that the individual who is the focus of the wiretap investigation will use the tapped phone." United States v. Meling, 47 F.3d 1546, 1552 (9th Cir.1995) (internal citations omitted). We conclude that none of the alleged omissions, if they existed at all, undermine the district court's finding of probable cause.

Appellants first claim that the Olsen affidavit for Line 6 failed to mention that Fernandez was a federal fugitive and that the government had never attempted to arrest him. The government appears to concede that this fact was omitted from the Olsen affidavits, but argues that the fact was not material because, if anything, it made it more likely that Fernandez was engaged in criminal behavior. The district court agreed, noting that Fernandez's fugitive status would have increased the showing of probable cause, not diminished it. We agree with the district court's determination as it relates to probable cause. However, the district court's analysis does not defeat Appellants' arguments that the omission was material to the necessity requirement. We address those arguments in the next section.

Appellants' second claim is that the Olsen affidavits failed to mention that the person Confidential Witness # 2 ("CW # 2") claimed was Fernandez's associate was, in fact, CW # 2's associate. At the district court, Appellants claimed that the associate was an individual named Debra Wood Farris or "Deb," and provided evidence that this person was in fact CW# 2's—rather than Fernandez's—associate. The government, however, submitted the affidavit of FBI Special Agent Franklin Davis, who stated that the individual referred to in the affidavit was co-defendant Robert Cervantes, who was in fact Fernandez's associate. Appellants provided no evidence to rebut this assertion, and the district court agreed with the government that the reference was to Cervantes. The Olsen affidavits were therefore neither false nor misleading on this point. Appellants have pointed to nothing in the record that would lead us to conclude that the district court's finding was clearly erroneous.

Finally, Appellants argue that the Olsen affidavits failed to mention that "CW # 2 personally facilitated the purchase of drugs to be taken into the Los Angeles County Jail." 2002 WL 32302660 at *104. As the district court pointed out, however, the Olsen affidavits made specific reference to the fact that CW# 2 had facilitated such a drug deal. The record therefore fully supports the district court's finding that the Olsen affidavits contained "no material misrepresentations or omissions with respect to CW# 2's drug use and drug dealing."

In sum, none of the omissions alleged by the appellants undermines the district court's finding that probable cause existed to approve the wiretaps.

Appellants claim that the wiretap applications failed to make the required showing of necessity. In order to obtain a court-approved wiretap, the government must submit an application that includes, among other things, "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(1)(c). Our court has adopted

a `common sense approach' in which the reviewing court uses a standard of reasonableness to evaluate the government's good faith effort to use alternative investigative means or its failure to do so because of danger or low probability of success. Though the wiretap should not ordinarily be the initial step in the investigation, ... law enforcement officials need not exhaust every conceivable alternative before obtaining a wiretap.

United States v. Canales Gomez, 358 F.3d 1221, 1225-26 (9th Cir.2004) (internal quotation marks and citations omitted).

Appellants' arguments regarding the necessity requirement lack merit. Appellants first claim that the government's use of two confidential informants, CW # 1— now known to be John Turscak—and CW # 2, obviated the need for a wiretap because they were able to provide significant information regarding the activities of the Eme. We have recently rejected similar arguments under virtually identical circumstances. In Shryock, 342 F.3d at 976, the government had access to seven cooperating individuals whom we described as providing "a wealth of information and evidence" in an investigation of the Eme. We found that even with access to these informants, the government had been able to meet the necessity requirement:

[T]he Mexican Mafia is a broad-based organization with several hundred members and an unknown number of associates. Several informants—including former members of the Mexican Mafia...—could not possibly reveal the full nature and extent of the enterprise and its countless, and at times disjointed, criminal tentacles.

Id. (citations omitted). Our holding in Shryock is controlling here and defeats Appellants' arguments regarding the informants. See also Canales Gomez, 358 F.3d at 1226 ("The government need not show that informants would be useless in order to secure a court-authorized wiretap."); United States v. McGuire, 307 F.3d 1192, 1197 (9th Cir.2002) (holding that the government had established necessity for wiretaps despite its use of three cooperating witnesses because "those witnesses were able to give agents only limited information, not including the names of all members of the conspiracy").

Appellants also argue that the fact that the Olsen affidavits failed to disclose Fernandez's status as a federal fugitive undermines the district court's finding of necessity. We conclude, however, that this omission was not material because the inclusion of the omitted information would not have affected the district court's determination of necessity. See Meling, 47 F.3d at 1553. The Olsen affidavits pointed out that interviews and grand jury investigations of Mexican Mafia members were risky investigative techniques because they would alert the targets of the ongoing investigation. The fact that the government had the authority to arrest Fernandez and question him about his activities did not mean that it would have been able to obtain the information it gathered through the wiretaps. See Canales Gomez, 358 F.3d at 1226 ("This court [has] consistently upheld findings of necessity where traditional investigative techniques lead only to the apprehension and prosecution of the main conspirators, but not to the apprehension and prosecution of ... other satellite conspirators.") (quoting McGuire, 307 F.3d at 1198). While the information regarding Fernandez's fugitive status was relevant to the necessity inquiry, the district court could reasonably have found that the wiretaps were necessary even in the presence of that information. The omission was therefore not material to the necessity inquiry.22

Appellants' most compelling argument is that the generalized averments made in the Olsen affidavits as to why normal investigative techniques would not work in this case were not sufficient to establish necessity. Some aspects of the Olsen affidavits are indeed problematic in this regard, especially in light of our precedent in Blackmon, 273 F.3d at 1210, where we concluded wiretap applications that included generalized statements as to why normal investigative techniques would be unsuccessful were insufficient. We noted that the "boilerplate assertions" made in the affidavits at issue in that case were "unsupported by specific facts relevant to the particular circumstances of [the] case and would be true of most if not all narcotics investigations." Id. Portions of the Olsen affidavits suffer from the same flaws emphasized in Blackmon: they include statements that are "nothing more than a description of the inherent limitations" of particular investigative techniques. Id.23

In the end, however, we cannot conclude that the district court abused its discretion in finding that the Olsen affidavits satisfied the necessity requirement set out in 18 U.S.C. § 2518(1)(c). This case is distinguishable from Blackmon because our holding in that case was premised on a finding that the affidavits supporting the wiretap applications were plagued by material misrepresentations and omissions. See Blackmon, 273 F.3d at 1209-10; see also Canales Gomez, 358 F.3d at 1225 (declining to apply Blackmon because no material omissions or misstatements were alleged in that case). As we explained above, Appellants have not shown that the Olsen affidavits suffered from material misrepresentations or omissions. We therefore affirm the district court's decision not to suppress the wiretap evidence in this case.

B. The district court's failure to conduct a Franks hearing

Appellants argue that the district court erred in failing to conduct a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). We review the district court's denial of a Franks hearing de novo, but review the underlying factual findings of the district court regarding materiality under the clearly erroneous standard. United States v. Bennett, 219 F.3d 1117, 1124 (9th Cir. 2000).

A defendant is entitled to a Franks hearing where he or she makes "a substantial preliminary showing that a false statement was (1) deliberately or recklessly included in an affidavit submitted in support of a wiretap, and (2) material to the district court's finding of necessity." Shryock, 342 F.3d at 977 (citation omitted). As we have explained in the preceding sections, the district court properly rejected Appellants' arguments that the Olsen affidavits contained material misstatements or omissions. The district court therefore did not err in denying Appellants' request for a Franks hearing.

Appellants argue that the district court erred in failing to dismiss the indictment because of outrageous government conduct in the process of investigating this case. Appellants claim that various aspects of the government's involvement with and reliance on informant John "Stranger" Turscak resulted in conduct so improper that their due process rights have been violated. They also argue that the district court should have dismissed the indictments under its supervisory power as a sanction for the government misconduct. Appellants Fernandez, Gonzales, Sanchez and Schoenberg all joined a motion by co-defendant Cervantes raising this claim at the district court. We review the due process claim as to these appellants de novo, United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003), but review the supervisory power claim under the abuse of discretion standard. Id. We review the claims with respect to appellants Gavaldon and Contreras for plain error. See United States v. Duncan, 896 F.2d 271, 275 (7th Cir.1990). In reviewing these claims, we view the evidence in the light most favorable to the government and accept the district court's factual findings unless clearly erroneous. Gurolla, 333 F.3d at 950.24

"The defense of outrageous government conduct is limited to extreme cases in which the government's conduct violates fundamental fairness and is shocking to the universal sense of justice mandated by the Due Process Clause of the Fifth Amendment." Gurolla, 333 F.3d at 950 (citations and internal quotation marks omitted). We have found outrageous government conduct in instances where the government has "engineer[ed] and direct[ed] the criminal enterprise from start to finish," United States v. Smith, 924 F.2d 889, 897 (9th Cir.1991), and in "that slim category of cases in which the police have been brutal, employing physical or psychological coercion against the defendant." United States v. Bogart, 783 F.2d 1428, 1435 (9th Cir.1986) (citation omitted), vacated in part on other grounds sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir.1986).

We do not find such conduct here. Appellants claim that the government engaged in outrageous conduct in this case because it used Turscak as a confidential informant even as he continued to engage in illegal conduct and, particularly, as he continued to discuss a potential attack on co-defendant Martinez with other Eme members and associates. The district court found, however, that "[a]lthough the Government was aware that Turscak was talking about a conspiracy to murder Martinez, Turscak was coope