Submitted: May 10, 2017
from United States District Court for the District of
Minnesota - St. Paul
SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.
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.
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. 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.
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.
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
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.
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
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,  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.
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.
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.
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.
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.
Mistrial Based on Prejudicial Evidence
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.
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.
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)).
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
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.
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.
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.
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
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
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.
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.
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. ...