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United States v. Parker

United States Court of Appeals, Eighth Circuit

September 12, 2017

United States of America Plaintiff- Appellee
Darryl Parker Defendant-Appellant United States of America Plaintiff- Appellee
Veltrez Black Defendant-Appellant United States of America Plaintiff- Appellee
Jabari Johnson Defendant-Appellant United States of America Plaintiff- Appellee
Tywin Bender Defendant-Appellant United States of America Plaintiff- Appellee
Tywin Bender Defendant-Appellant

          Submitted: May 10, 2017

         Appeals from United States District Court for the District of Minnesota - St. Paul

          Before SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.

          SMITH, Chief Judge.

         This is the consolidated appeal of four of eleven individuals indicted and convicted of conspiring to possess firearms, in violation of 18 U.S.C. §§ 371 and 922(g)(1). The conspiracy involved gang members with felony convictions who enlisted "straw purchasers, " i.e., associates who could pass the requisite background checks, to obtain guns legally. The straw purchasers then gave the "legal" guns to the gang for its use. Codefendants Darryl Parker, Veltrez Black, Jabari Johnson, and Tywin Bender appeal their individual cases to this court.

         I. Background

         North Minneapolis, Minnesota, knows gang violence. Two rival street gangs-the Taliban and the One-Nine Block Dipset-have traded high-profile homicides in a decades-long conflict.[1] When Tyrone "Ty Crack" Washington, a leader of "the One-Nine, " was shot and killed at Epic nightclub in November 2013, the Taliban released a series of videos on Facebook and YouTube taunting members of the One-Nine and its derivative group, the Stick Up Boys (SUB). Retaliation soon began.

         Kibbie Walker, a Taliban member present at Epic nightclub on the night of Washington's murder, was shot by a One-Nine member as he left work in April 2014. Two weeks later, Walker fired multiple shots into a vehicle, hitting SUB-member Marquis Woods. Walker pleaded guilty to two counts of assault and was imprisoned. As the feud continued, members of the One-Nine began stockpiling weapons. To acquire weapons, the One-Nine recruited friends who did not have felony records to legally purchase firearms that would eventually become part of the gang's arsenal.

         In November 2014, someone likely affiliated with the Taliban shot One-Nine-member Jabari Johnson multiple times. To avoid further reprisals, law enforcement indicted the leaders of the One-Nine and SUB. Nine gang members-including Veltrez Black, Tywin Bender, Darryl Parker, and Jabari Johnson-and two straw purchasers were indicted for conspiracy to illegally possess firearms. Each gang member was also indicted on a single count of felony gun possession. When police came to arrest Johnson, he credited the police arrests for preventing a gang battle, stating that his gang was "just about to go shoot them up." Johnson voluntarily led officers to a storage locker containing two Glock handguns, a Sig Sauer .9 mm, two AK-47 rifles, and high-capacity magazines. All defendants except Black pleaded guilty.

         At Black's trial, the government presented evidence that the open hostilities underlying the present gang conflict began with the murder of Taliban-member Kyle Parker by One-Nine-member Christopher Bahtuoh in 2009. This killing was followed by the murder of SUB-member Dacari "Pudda Loc" Starr and Taliban-member Derrick "D-Nice" Martin. The government discussed Washington's murder at the nightclub and the subsequent drive-by shootings of residences belonging to Taliban members deemed responsible for Washington's murder. The government's proof placed Black in the presence of One-Nine members and firearms on five occasions during the conspiracy period. In one instance, Black was seen in a house with a large group of One-Nine members, where seven firearms were found. Two of the firearms, a .45 mm Kimber and a Czech 7.62 mm rifle, were discovered in the same room as Black. Both guns had a mixture of DNA. A forensic biologist with the Hennepin County Sheriff's Office Crime Lab testified that Black's DNA could not be excluded from the mixtures. Firearms examiner Kristin Reynolds testified that gun casings found at residential shootings of Taliban members, on November 20 and 26, 2013 (shortly after Washington's murder), were consistent with the same Kimber pistol.

         The government also presented two letters that Black wrote while in jail. In one, Black mentioned the death of Derrick "D-Nice" Martin. In the other, Black instructed a fellow inmate to identify the One-Nine as "1-9 pushup and 1-9 pipes" when talking to others. The government presented Facebook and Instagram posts showing Black in the company of One-Nine members, wearing clothing referencing the gang, and showing contempt for the Taliban. Many of these photos had inscriptions referencing the One-Nine. Minneapolis Police Officer Jaclyn Tuma, who specializes in gang intelligence, testified that the Minneapolis Police Department uses nine indicators to identify gang members. Black met seven. (A typical gang identification requires only three indicators.) Additionally, the government presented testimony from SUB-member Antonio Lewis and Taliban-member Kibbie Walker. Lewis and Walker both provided context to the gang war and the animosity between the Taliban and the One-Nine. After a six-day trial, the jury convicted Black of illegally possessing a firearm and conspiring to illegally possess firearms.

         The day after Black's conviction, Tywin Bender (also known as Finn Winn), a SUB-leader and Black's codefendant, called a friend from prison using a borrowed telephone identification code. He instructed this friend to send e-mails to two people in the Rush City Correctional Facility, the location where witnesses Lewis and Walker were housed. He gave this instruction:

@FinnWinn aye bro the n[****] bogus a rat he took the stand on chief, [2] smash him as soon as you see him. green light. the n[****] kibby took the stand too on chief. let everybody know. no talking no explanations.

         The prison staff intercepted one of the e-mails. The other e-mail reached its intended recipient and was found in his belongings. Although already imprisoned for the firearms conspiracy, Bender's action drew a new charge for conspiracy to retaliate against the government witnesses. Before jury deliberations began, Bender sought several jury instructions, including one regarding his First Amendment right to free speech. The district court rejected his proposed instructions. Bender was convicted, although his conspiracy codefendant was acquitted.

         At sentencing, defendants Parker and Johnson each received the 60-month statutory maximum sentence for the firearm conspiracy, and they each received concurrent 78-month sentences for their respective illegal-possession counts. Bender received 60 months on the conspiracy conviction and an additional 70 months for the retaliation conviction. Black also received 60 months' imprisonment on the conspiracy charge and an additional 120 months for the possession charge. All four defendants appeal.

         II. Discussion

         Black was convicted of, and Johnson and Parker pleaded guilty to, one count of conspiring to illegally possess firearms, in violation of 18 U.S.C. §§ 371 and 922(g)(1), and one count of illegally possessing a firearm, in violation of 18 U.S.C. § 922(g)(1). Bender pleaded guilty to one count of conspiring to illegally possess firearms, in violation of §§ 371 and 922(g)(1). Bender was also convicted of an additional count of conspiring to retaliate against a government witness, in violation of 18 U.S.C. § 1513(f), based on the e-mail that he sent to residents of the Rush City Correctional Facility. We will address each defendant's case in turn.

         A. Veltrez Black

         Veltrez Black argues that the district court erred by (1) denying his motion for mistrial; (2) denying his motion for acquittal on the conspiracy conviction; and (3) denying his motion for acquittal on the possession conviction. We disagree with his arguments regarding the conspiracy conviction and his motion for mistrial and accordingly affirm those convictions. We agree, though, with his argument regarding his possession conviction and reverse.[3]

         1. Mistrial Based on Prejudicial Evidence

         "We review the denial of motions for mistrial for abuse of discretion, " United States v. Peoples, 250 F.3d 630, 635 (8th Cir. 2001), and "[w]e review a district court's decision to admit or exclude testimony for an abuse of discretion, " United States v. Thunder, 745 F.3d 870, 876 (8th Cir. 2014) (quoting United States v. Jewell, 614 F.3d 911, 918 (8th Cir.2010)). Black argues that the district court abused its discretion by permitting the government to introduce evidence showing that the One-Nine and the Taliban gangs engaged in ongoing acts of retaliation. Black argues that such evidence was "irrelevant, inflammatory, and unduly prejudicial." Because we find the evidence relevant and not unduly prejudicial, we affirm.

         At trial, Black presented a "mere presence" defense. Although his brother and his cousins belonged to the One-Nine, Black argued that he innocently happened to be in their presence when they possessed firearms. Black argued that he did not agree to jointly possess guns with them, that he was not involved as a member of the One-Nine, and that he did not take part in the gang warfare. Black argues that because the evidence merely demonstrated association with the One-Nine and not his participation in the conspiracy, the evidence of gang violence merely served to prejudice him and convict him of having the wrong friends. We disagree.

         "[A] defendant cannot be convicted because of his association with a group, " United States v. Looking Cloud, 419 F.3d 781, 786 (8th Cir. 2005), but "[w]e have admitted evidence of a defendant's association with a group where the association establishes motive or opportunity to commit the crime." Id. We have admitted limited gang-related evidence to disprove a "mere presence" defense. See United States v. Lemon, 239 F.3d 968, 972 (8th Cir. 2001). We have also allowed gang-related evidence "to establish conspiracy or to rebut codefendants' innocent explanations of their relationships with one another." United States v. Street, 548 F.3d 618, 632 (8th Cir. 2008). "[G]ang-related evidence is often admissible where 'the defendant is . . . a gang member himself, ' the issues in the case 'concern the mere fact of a defendant's gang membership . . ., ' and the evidence 'is generally an unavoidable incident of presenting other permissible evidence.'" United States v. Gaines, 859 F.3d 1128, 1131 (8th Cir. 2017) (internal quotation marks omitted) (first ellipsis in original) (quoting United States v. Payne-Owens, 845 F.3d 868, 873 (8th Cir. 2017)).

         In Looking Cloud, we allowed evidence of gang-related activity because the defendant's conduct "could only be explained within the context" of his group's activity. 419 F.3d at 786. Evidence about the context of the gang activity "tended to make the government's theory . . . more probable." Id. Proof of the defendant's involvement in the group was "crucial" to explain the defendant's motivation. Id. We held that the "evidence of mere membership" provided "a low risk" that the jury would find the defendant guilty of the crime by mere association. Id.

         Black argues that the district court erred in allowing the government to discuss gang activity in its opening and closing statements. "The trial court has broad discretion in controlling the direction of opening statements and closing arguments, 'and this court will not reverse absent a showing of abuse of discretion.'" United States v. Conrad, 320 F.3d 851, 855 (8th Cir. 2003) (quoting United States v. Johnson, 968 F.2d 768, 769 (8th Cir. 1992)); but see Street, 548 F.3d at 629 (reversing the district court's denial of mistrial because the government's "main purpose" in its closing argument was to illustrate the violence of gangs and not the defendant's guilt). In Black's trial, the government stated its intent to present evidence relating to gang violence was for context only:

Now, let me talk a little bit about this gang war that I have alluded to. And I want to caution you right now. This information that you're going to get about this gang war is being brought to you for a limited purpose. This Indictment does not accuse Mr. Black of having murdered anybody or having shot anybody, but it accuses him of being a member of a gang that was involved in a gang war. And the Indictment alleges that the existence of that gang war was one of the reasons they agreed to have all these guns together: to carry on the gang war.
So you're going to hear about this gang war as kind of context and background and information that might help you decide what the people's motivation was for possessing these guns. . . . This information is being brought to you as background information so you can understand the context of what was going on.

         The government discussed the very public and notorious gang war between the One-Nine and the Taliban, but it did so with the limited purpose of putting Black's actions in context.

         On this record, we conclude that the district court did not abuse its discretion in allowing the government's statements, nor did it abuse its discretion in allowing evidence to support these statements. The gang information aided the jury in understanding Black's motivations for indirectly acquiring firearms. The government limited the information to relatively recent violence such as the 2009 murder of Taliban-member Kyle Parker by One-Nine member Christopher Bahtuoh. A photo posted on social media linked Black to this incident by depicting Black wearing a shirt asking the government to "free" Bahtuoh from prison. Black additionally referenced the 2010 murder of Derrick "D-Nice" Martin in his jail letter, further linking Black to the One-Nine gang. Information regarding the murder of One-Nine-member Washington, Black's older brother, showed a reasonable motive for Black to join the conspiracy. Evidence of the two house shootings in the aftermath of Washington's death was relevant because it connected the Kimber firearm to Black. Information relating to Kibbie Walker's significant involvement in the gang violence laid the foundation to introduce his testimony. Information regarding the actions of Black's codefendants Marquis Woods and Jabari Johnson went directly to proving the overt acts of the conspiracy. The district court accepted the government's use of the information to show Black's knowledge of the conspiracy and his motive to join it. The information did not unduly imply that Black actually took part in violent retaliations. The jury was told to use the information only for its intended purpose and not to convict Black based on his association.

         Beyond admission of the gang violence background information, Black argues that other evidentiary rulings that the district court made unfairly prejudiced him. First, Black cites Officer Tuma's testimony as unfairly prejudicial. Black filed a pretrial motion in limine to exclude Tuma's testimony. The court allowed Tuma's testimony over objection, but it instructed her not to testify about the "ultimate" conclusion of whether Black belonged to the One-Nine. Tuma abided by this restriction. In Gaines, we rejected a similar argument about testimony from a gang expert, saying that "we have repeatedly held explanatory evidence like this to be admissible." 859 F.3d at 1132. "Evidence is not unfairly prejudicial because it tends to prove guilt, but because it tends to encourage the jury to find guilt from improper reasoning. Whether there was unfair prejudice depends on whether there was an undue tendency to suggest decision on an improper basis." United States v. Ramos, 852 F.3d 747, 755 (8th Cir. 2017) (internal quotation marks omitted) (quoting Looking Cloud, 419 F.3d at 785). Tuma's testimony was not inflammatory, nor did it suggest that Black had taken part in any crime beyond joining the conspiracy. Tuma's discussion of the factors relating to Black's gang involvement was not unfairly prejudicial.

         Second, Black argues that the district court erred by not limiting the testimony of ballistics expert Kristin Reynolds. Before trial, the court prohibited Reynolds from testifying that she was "100% sure" or "certain" that the relevant guns matched the relevant shell casings. On appeal, Black argues that Reynolds violated that restriction by describing the general reliability of the ballistics testing process. Reviewing the trial transcript, we conclude that Reynold's testimony stayed within the bounds set by the district court.

         Third, Black argues that his Facebook and Instagram photos should have been excluded. He claims that the photos were not properly authenticated and that their admission unfairly prejudiced him. To the contrary, we find that they were supported by a proper foundation and provide probative, relevant evidence supporting the conspiracy charge.

         Finally, Black argues that the "cumulative effect" of all this information made the trial "fundamentally unfair." Gang evidence cannot be used "if its purpose is solely to prejudice the defendant or prove his guilt by association with unsavory characters." Gaines, 859 F.3d at 1131 (internal quotation marks omitted) (quoting United States v. Ellison, 616 F.3d 829, 833 (8th Cir. 2010)). "We have previously cautioned against the 'relentless attempt to convict [a defendant] through his association' with a gang . . . 'merely to show that [the defendant] is a bad person and thus more likely to have committed the crime.'" Id. at 1131-32 (alterations in original) (quoting United States v. Roark, 924 F.2d 1426, 1430-34 (8th Cir. 1991)). As noted above, the district court found that the government did not present the gang evidence for the this purpose. Evidence of the gang war directly related to the conspiracy's motivation and to Black's motivation to join it. The evidence of his association with the One-Nine directly related to his participation in that conspiracy. "Any unfairly prejudicial effect of the gang-related evidence did not substantially outweigh its probative value." Id. at 1132. The district court did not abuse its discretion in allowing this evidence or in denying Black's motion for mistrial.

         2. Conspiracy Conviction

         "In reviewing the denial of a motion for a judgment of acquittal, we review the sufficiency of the evidence de novo, evaluating the evidence in the light most favorable to the verdict and drawing all reasonable inferences in its favor." Thunder, 745 F.3d at 874 (quoting United States v. Wright, 739 F.3d 1160, 1167 (8th Cir. 2014)). "The conspiracy's existence may be proved by direct or circumstantial evidence." United States v. Rolon-Ramos, 502 F.3d 750, 754 (8th Cir. 2007) (quoting United States v. Cain, 487 F.3d 1108, 1111 (8th Cir. 2007)). For a conspiracy conviction, the government need not prove a formal agreement existed, but rather "a tacit understanding" between the parties. United States v. May, 476 F.3d 638, 641 (8th Cir. ...

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