793 Fed.Appx. 151 (4th Cir. 2010), 08-5204, United States v. Toliver

Docket Nº:08-5204, 08-5217
Citation:793 Fed.Appx. 151
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gary Lynn TOLIVER, Jr., a/k/a BG, a/k/a Lil Gary, a/k/a Garry Toliver, Jr., Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Mikal Mustafa Mix, a/k/a Stash, a/k/a Dirty Boy, a/k/a Mikail Mix, a/k/a Man Man, Defendant-Appellant.
Attorney:Rebecca Sue Colaw, REBECCA S. COLAW, PC, Suffolk, Virginia; Lawrence H. Woodward, Jr., SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK, PC, Virginia Beach, Virginia, for Appellants. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. Dana J. Boente, United...
Judge Panel:Before GREGORY, AGEE, and DAVIS, Circuit Judges.
Case Date:July 13, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 151

793 Fed.Appx. 151 (4th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Gary Lynn TOLIVER, Jr., a/k/a BG, a/k/a Lil Gary, a/k/a Garry Toliver, Jr., Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Mikal Mustafa Mix, a/k/a Stash, a/k/a Dirty Boy, a/k/a Mikail Mix, a/k/a Man Man, Defendant-Appellant.

Nos. 08-5204, 08-5217

United States Court of Appeals, Fourth Circuit

July 13, 2010

Argued: May 14, 2010

Amended: November 12, 2019

UNPUBLISHED

Editorial Note:

Unpublished opinions are not binding precedent in this circuit. (See Federal Rule of Appellate Procedure Rule 32.1)

Page 152

Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:08-cr-00022-JBF-JEB-3; 2:08-cr-00022-JBF-JEB-2).

ARGUED:

Rebecca Sue Colaw, REBECCA S. COLAW, PC, Suffolk, Virginia; Lawrence H. Woodward, Jr., SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK, PC, Virginia Beach, Virginia, for Appellants.

Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

ON BRIEF:

Dana J. Boente, United States Attorney, Alexandria, Virginia, William D. Muhr, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

Before GREGORY, AGEE, and DAVIS, Circuit Judges.

OPINION

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Page 153

Gary Toliver ("Toliver") and Mikal Mix ("Mix") appeal their convictions for racketeering and various violent crime, gun, and drug distribution offenses connected to gang activity by the Bounty Hunter Bloods ("BHB") in Norfolk, Virginia. On appeal, they raise, both jointly and individually, a number of claims concerning their trial. For the reasons that follow, we affirm both Toliver and Mix’s convictions in their entirety.

I.

This case concerns Toliver’s and Mix’s participation in the BHB gang in Norfolk, Virginia. The evidence presented at trial described both the overall structure of the gang and specific instances of violent conduct or drug and gun distribution activity involving the defendants.

A.

The BHB was established in Norfolk in the early 1990s by an Original Gangster of the BHB in New York, Cody. The BHB has a formal hierarchical command and authority structure with defined roles. The BHB controlled several neighborhoods of Norfolk, and each was called a "chapter."[1] Each chapter was led by a different BHB member called a general. The general controlled all BHB activity in his chapter. Each general, in turn, had other members working underneath him in his chapter called young gangsters ("YG") or little homies.

Both Mix and Toliver had prominent roles in the BHB. Mix, also known as Stash, Man Man, or Dirty Boy, was one of the founding members of the gang from Mount Vernon, New York and was the general of the Ocean View area of Norfolk. Toliver, also known as BG, was the general of Norview. Antonio Fulford, a codefendant who pleaded guilty and testified for the prosecution, was the general of Little Creek. Another cooperating coconspirator, hereinafter referred to as "John Doe" or "Doe," was the leader of the BHB overall, and all of the generals, including Mix and Toliver, reported to him.

Individuals can become members of the BHB in three ways. The most common way is to "shoot a 31" whereby the person looking to join stands in the middle of five BHB members in a five-pointed star formation. The current members then beat the inductee for thirty-one seconds. Individuals can also be blessed in by current members of the gang. Finally, women, called rubies, can be "sexed in," by having sexual intercourse with five members of the gang. John Doe estimated that at the time he was arrested along with Mix and

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Toliver, the BHB had between 300 and 400 members, mostly teenagers but with some members as young as nine.

Members of the gang from all chapters would meet every two to three months. During these meetings, the generals would report what was happening in their chapter, violations of gang rules would be cured by having the offending member shoot a 31, and members would be encouraged to "represent their flag" by letting others know they were part of the BHB. Toliver led most of these larger meetings, and Mix would also participate.

Within each chapter, the members of the BHB made money through home invasions, robberies, and sales of narcotics. Additionally, members were expected to "put in work," to do an act of violence, such as a robbery or shooting, to represent the BHB. Rubies often put in work by attracting a robbery victim and leading him to a group of waiting gang members. If a YG or little homie refused to put in work, they would be disciplined by having to shoot a 31 again. If members seriously dishonored the gang, they could be killed.

The BHB has its own language and lingo that members use between themselves. For example, members avoid using words that begin with the letter "C" and instead change it to a "B" because the letter "C" is associated with the Crips, a rival gang. The BHB greet each other with the phrase "what’s poppin" or with the call "blllaat." Additionally, members are required to learn oaths to be sworn to the gang. Generals would test YGs or little homies on their knowledge of the gang by walking up to them and "G Checking" them, asking them a question about gang protocol, which also served to make sure that someone was not "false flagging" and pretending to be a member of the gang. The BHB’s symbol is a five-pointed star. Each point on the star has a meaning: body, unity, love, lust, and soul. The BHB wear red as an identifying color and put a red bandana in their right back pocket. They use hand symbols such as "ck," meaning Crip killer, and a five-pointed star. All of these identifying characteristics serve to brand the gang, both within its membership and to rival gangs and the public.

B.

In addition to being part of the overall command structure of the BHB, Toliver and Mix were involved in several violent incidents perpetrated by BHB members between March 2004 and November 2007.

1.

On March 5, 2004, a dance for teenagers was held at the VFW in Ocean View. Many members of the BHB and Crips attended. Tension between the gang members rose during the dance, so the attendees were sent outside by the organizers, and the dance ended. Once outside, a fight started, and a member of the BHB called Mix and told him to bring guns to the VFW. Mix then drove to the VFW and passed out four or five guns to the BHB members who were there. They started shooting into the crowd and one girl, who was uninvolved in the fight, was grazed in the head, requiring emergency care.

2.

On May 1, 2004, Samuel Oteng and Harold Gladden, two naval officers, rented a room at the Tides Inn in Norfolk, Virginia so that they could hold a going away party. Upon checking in, they noticed some women at the hotel and greeted them. The women, unbeknownst to the sailors, were members of the BHB. Oteng and Gladden invited the women to come to the party later that night, but they never showed.

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After the party had broken up around 2:00 a.m. and the guests had left, Gladden and Oteng were confronted by three men carrying guns outside their hotel room. One of the men grabbed Oteng’s gold chain off his neck and then attempted to force him into the room. To avoid being trapped in the room with armed individuals, Oteng offered to let the men search his car for money, and the men took his keys and drove the car away. Oteng ran after them to see where the men were taking the car. As he was doing so, a shot was fired. One of the female members of the BHB present at the hotel that night testified that Mix fired the shot and was one of the men who threatened the sailors that evening.

3.

In April 2006, John Doe, the leader of the BHB, heard that Rich Porter, a drug dealer, accused him of false flagging. In response, Doe ordered Toliver to get Porter and bring him to Doe’s house in Coleman Place. Toliver drove to Porter’s house, showed him a 9mm handgun, and demanded he get in the car. Toliver then drove Porter to Doe’s house where Doe interrogated him about the rumors he was spreading. Ultimately, Doe let Porter go.

4.

In spring 2007, two men broke into Andre Parham’s house and demanded money from him. Parham was a drug dealer with whom the BHB did business. The men hit Parham and burned him on his back with an iron before departing. Later that evening, the men came back and started pounding on his door. Parham responded by shooting through the door. On August 20, 2007, Parham was again the victim of a home invasion. He became unconscious after the men entered his home and beat him. He was again burned with an iron and cut on his arm. John Doe testified that Toliver was present at that home invasion with other members of the BHB and stole heroin and guns.

5.

In July 2007, Timothy Minter, Jamal Ashe, and James Robertson, Minter’s cousin, were all spending time together in Norfolk where Minter and Ashe were stationed with the Navy. One night, after dinner, they met two women in front of the pizza parlor where they ate. The women did not have a car, so they offered to drive the women home. Robertson asked for their phone numbers, but the women preferred to take his number from him.

Later, on July 27th, Robertson received a call from one of the women inviting him to hang out. He accepted and drove with Minter and Ashe to 16th Bay in Norfolk where the girls had indicated they would be. When Robertson, Minter, and Ashe pulled into the parking lot, they saw seven girls as well as one man.

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