United States v. Kamahele, Nos. 12–4003

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: BACHARACH
• Citation: 748 F.3d 984
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Eric KAMAHELE, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Daniel Maumau, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Kepa Maumau, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Sitamipa Toki, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Mataika Tuai, Defendant–Appellant.
• Decision Date: 08 April 2014
• Docket Number: Nos. 12–4003,12–4015,12–4007,12–4039.,12–4005

748 F.3d 984

UNITED STATES of America, Plaintiff–Appellee,
v.
Eric KAMAHELE, Defendant–Appellant.
United States of America, Plaintiff–Appellee,
v.
Daniel Maumau, Defendant–Appellant.
United States of America, Plaintiff–Appellee,
v.
Kepa Maumau, Defendant–Appellant.
United States of America, Plaintiff–Appellee,
v.
Sitamipa Toki, Defendant–Appellant.
United States of America, Plaintiff–Appellee,
v.
Mataika Tuai, Defendant–Appellant.

Nos. 12–4003, 12–4005, 12–4007, 12–4015, 12–4039.

United States Court of Appeals,
Tenth Circuit.

April 8, 2014.

[748 F.3d 992]

Diana Hagen Assistant United States Attorney (David B. Barlow, United States Attorney for the District of Utah, Salt Lake City, UT, on the brief) for Plaintiff–Appellee United States of America.

[748 F.3d 993]

Julie George, Salt Lake City, UT, on the brief for Defendant–Appellant Eric Kamahele.

G. Fred Metos, McCaughey & Metos, Salt Lake City, UT, for Defendant–Appellant Daniel Maumau.

Gregory W. Stevens, Salt Lake City, UT, for Defendant–Appellant Kepa Maumau.

Richard P. Mauro, Salt Lake City, UT, for Defendant–Appellant Sitamipa Toki.

David V. Finlayson, Finlayson & Osburn, LLP, Salt Lake City, UT, for Defendant–Appellant Mataika Tuai.

Before TYMKOVICH, HOLMES, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

Mr. Eric Kamahele, Mr. Daniel Maumau, Mr. Kepa Maumau,¹ Mr. Sitamipa Toki, and Mr. Mataika Tuai appeal their convictions arising from armed robberies and shootings in connection with the Tongan Crips Gang (“TCG”) in Glendale, Utah. In a jury trial, Mr. Kamahele, Mr. Kepa Maumau, and Mr. Tuai were found guilty of conspiring to commit a racketeering offense under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961– 1968 (2006). Mr. Eric Kamahele, Mr. Daniel Maumau, Mr. Kepa Maumau, and Mr. Sitamipa Toki were found guilty of committing violent crimes in aid of racketeering activity (“VICAR”), 18 U.S.C. § 1959(a) (2006). Mr. Kamahele, Mr. Kepa Maumau, and Mr. Tuai were also found guilty of violating the Hobbs Act, 18 U.S.C. § 1951(a) (2006). And all were found guilty of violating 18 U.S.C. § 924(c) (2006), for using guns during their respective crimes.

All of the defendants contend the district court erred by: (1) admitting expert testimony by Mr. Break Merino about the TCG's history, structure, and activities, and (2) denying their motions for a judgment of acquittal under Federal Rule of Criminal Procedure 29 based on the Government's failure to prove various elements of RICO and VICAR.

Four defendants also raise individual claims:

• Mr. Daniel Maumau contends the district court erred in its instruction to the jury on VICAR, selecting the jury, and deciding the appropriate sentence.

• Mr. Tuai contends the district court erred in instructing the jury on RICO.

• Mr. Kepa Maumau argues the district court erred by admitting evidence of identification from a photo array that was unduly suggestive.

• Mr. Kamahele alleges prosecutorial misconduct.

Rejecting all of the Defendants' arguments, we affirm.

I. Factual Background

To address the Defendants' appeal points, we must understand the TCG's structure and history, as well as the underlying crimes that were alleged.

A. Tongan Crips Gang's Structure and History

The TCG is part of the Crips gang that began in California and made its way to the Tongan community in Glendale, Utah. The Glendale chapter of TCG organizes through “generations,” which are roughly equivalent to high-school age groups. The gang is also loosely organized by “families,”

[748 F.3d 994]

which are signified by monikers such as “Loc,” “Dog,” and “Down.”

Gang members are initiated into TCG by being “jumped in” (when the recruit fights gang members to prove his toughness) or “blessed in” (when the recruit has already proven himself as tough, either by being related to a TCG member or by his criminal reputation). Once initiated, gang members show their association with TCG through certain insignia. For example, members wear blue bandanas, solid-blue clothing, the number 104 (the last three digits of Glendale's zip code), and TCG tattoos (such as “Almighty T Gang”). Gang members also make “T” and “C” hand signs.

The gang adheres to principles such as the values of toughness and loyalty. Gang members must maintain a tough reputation by fighting and committing crimes (called “putting in work”). The gang values not only toughness, but also loyalty. Thus, TCG disapproves of “snitching” (giving information to police or rival gang members) and “hood jumping” (quitting TCG to become a member of another gang).

When the Utah gang formed in the 1990s, TCG members stole beer and fought. As time passed, TCG members continued to steal beer, but advanced to more serious crimes such as armed robberies and assaults.

B. Specific Crimes

At trial, the Government focused on a series of crimes: a shooting at the Faamausili home, a parking-garage robbery, a robbery of a clothing store, two restaurant robberies, and the robbery of a Wal–Mart.

1. Shooting at the Faamausili Home

In 2007, Mr. Toki and Mele Faamausili were having intercourse in a car when they were confronted by Mele's family. Upset by this discovery, Mele's cousin (Magic) punched Mr. Toki in the face. Mr. Toki jumped out of the car to fight Magic, but Mele's family left before the altercation could escalate.

Mr. Toki, still with Mele, rounded up two fellow TCG members (Mr. Daniel Maumau and Mr. David Kamoto) to “apologize” to Mele's family. Once they arrived at the Faamausili home, the three men shot at the home and into a carport where the Faamausili family was partying. During the shooting, Mr. Daniel Maumau and Mr. Kamoto wore blue bandanas over their faces.

Police later showed Mele a photo array of possible suspects, and she identified the shooters as Mr. Daniel Maumau and Mr. Kamoto.

2. Republic Parking Garage Robbery

In 2008, Mr. Kamahele and two accomplices robbed a cashier in a Republic Parking Garage ticket booth. The three men donned blue bandanas and pulled up in a tan Cadillac Escalade as the cashier was counting money. The men showed the cashier a sawed-off shotgun and demanded money, and the cashier turned over his credit cards and a manila envelope containing coins.

Approximately 30 minutes later, police discovered a Cadillac Escalade matching the cashier's description parked outside a home with Mr. Kamahele and others nearby. After being driven to the home by police, the cashier identified Mr. Kamahele as one of the robbers. Officers patted down Mr. Kamahele and discovered a manila envelope with coins, similar to the envelope stolen from the cashier. Police also found a sawed-off shotgun inside the Cadillac and the cashier's cards scattered nearby.

[748 F.3d 995]

3. Gen X Clothing Store Robbery

Later in 2008, Mr. Kepa Maumau and another gang member (Mr. Edward Kamoto) robbed a Gen X clothing store in South Ogden, Utah. During the robbery, which took approximately one minute, Mr. Kepa Maumau partially covered his face with his shirt and carried a gun. Of the three store employees who were present during the robbery, two later viewed a photo array and identified Mr. Kepa Maumau as one of the robbers.

4. El Pollo Loco and Jack in the Box Robberies

After robbing the Gen X Clothing store, Mr. Kepa Maumau and Mr. Kamoto went to Tempe, Arizona, and robbed an El Pollo Loco restaurant. Wielding a gun, the two took money from the cash register.

Mr. Kepa Maumau and Mr. Kamoto then robbed a Jack in the Box restaurant down the street. While fleeing the robbery, they encountered a couple leaving a nearby restaurant, who noticed that the robbers were wearing blue bandanas. After being chased by police for two miles, Mr. Kepa Maumau crashed the car. He and Mr. Kamoto tried to run, but were detained and arrested by police. After the arrest, police learned that the car was registered to Mr. Kepa Maumau and matched the witnesses' description. Inside were papers bearing Mr. Kepa Maumau's name, a document titled “Exit Plan,” and a loaded gun. The “Exit Plan” described Mr. Kepa Maumau's involvement with TCG.

After his arrest, Mr. Kamoto pled guilty to robbery charges in Arizona state court and served eighteen months in an Arizona county jail. After his release, he returned to Utah with an enhanced reputation among his fellow TCG members because of his participation in these robberies.

5. Wal–Mart Robbery

In 2008, Mr. Latutaofieiki Fakaosiula, Mr. Kamahele, Mr. Tuai, Mr. Vainga Kinikini, and Mr. Tevita Tolutau attempted to rob a Wal–Mart Super Store in Riverton, Utah. At the time, Mr. Kinikini was a Wal–Mart employee. Using information obtained as an employee, Mr. Kinikini orchestrated the robbery plan. Essentially, the plan called for Mr. Kamahele and Mr. Tuai to arm themselves, enter the office where the money was held, and steal the proceeds.

The plan went badly. Mr. Kamahele and Mr. Tuai were able to enter the Wal–Mart office, but could not go into the area where the money was kept. Mr. Kamahele abandoned the plan, and the men fled.

Shortly thereafter, Mr. Kinikini and Mr. Fakaosiula confessed. According to Mr. Fakaosiula, Mr. Tuai and Mr. Kamahele discussed giving some of the robbery proceeds either to family members of incarcerated TCG members or to fund a drug-dealing operation. Mr. Kinikini denied such a plan, stating that the robbers were going to split the proceeds among themselves.

While in jail, Mr. Kamahele and Mr. Tuai attacked Mr. Fakaosiula and Mr. Kinikini in retaliation for “snitching.”

Approximately one month after the Wal–Mart robbery, Mr. Kamahele stated in a recorded jailhouse telephone conversation that he did not intend to stop “putting in work” and that he needed “at least three.”

II. Procedural Background

The Defendants were charged under one or more of four statutes:

• 18 U.S.C. § 1962(d) (2006), conspiracy to commit a racketeering offense,

[748 F.3d 996]

• 18 U.S.C. § 1959(a) (2006), violent crimes in aid of racketeering,

• 18 U.S.C. § 1951(a) (2006), Hobbs Act...