United States v. McArthur

• Citation: 836 F.3d 931
• Decision Date: 08 September 2016
• Docket Number: No. 14–3367,No. 14–3335, No. 14–3336,14–3335
• Parties: United States of America, Plaintiff–Appellee, v. Wakinyan Wakan McArthur, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. William Earl Morris, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Anthony Francis Cree, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

836 F.3d 931

United States of America, Plaintiff–Appellee,
v.
Wakinyan Wakan McArthur, Defendant–Appellant.

United States of America, Plaintiff–Appellee,
v.
William Earl Morris, Defendant–Appellant.

United States of America, Plaintiff–Appellee,
v.
Anthony Francis Cree, Defendant–Appellant.

No. 14–3335
No. 14–3336
No. 14–3367

United States Court of Appeals, Eighth Circuit.

Submitted: May 18, 2016
Filed: September 8, 2016
Rehearing and Rehearing En Banc Denied October 19, 2016

Counsel who presented argument on behalf of the appellant, Wakinyan Wakan McArthur, was Frederick J. Goetz, Minneapolis, MN.

Counsel who presented argument on behalf of the appellant, William Earl Morris, was Thomas Shiah, Minneapolis, MN.

Counsel who presented argument on behalf of appellant, Anthony Francis Cree, was John Charles Brink, Minneapolis, MN.

Counsel who presented argument on behalf of the appellee was David Genrich, AUSA, of Minneapolis, MN.

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

COLLOTON, Circuit Judge.

A jury convicted Anthony Cree, William Morris, and Wakinyan McArthur of criminal offenses stemming from their involvement with the Native Mob, a Minnesota prison and street gang. All three appeal and argue that the district court erred as to the sufficiency of the evidence, jury instructions, or sentencing. We affirm in part, reverse in part, and remand for further proceedings.

I.

A.

As each defendant challenges the sufficiency of the evidence in support of his convictions, we recite the facts in the light most favorable to the verdicts. United States v. Paris , 816 F.3d 1037, 1038–39 (8th Cir. 2016). The Native Mob is a prison and street gang that started in south Minneapolis in the mid–1990s. The Mob developed a large presence in Minnesota and now has over two hundred members in the state. Its members participate in a variety of criminal acts, including sales of controlled substances and assaults on members of rival gangs. Through these activities, Mob members seek to promote the gang's reputation and to protect its members and territory.

In December 2009, McArthur called for a Mob meeting. At the meeting, Mob members elected a new group of leaders in the gang's hierarchical structure. Kenneth Roberts was elected War Chief, and Christopher Wuori was named Cass Lake Representative. Members also agreed to hold monthly statewide meetings.

McArthur served as Chief of the Mob, the top leadership position, from 2010 until 2012. Under McArthur, members had easy access to firearms. Members could request a firearm from another member, or they could retrieve a firearm from one of several Mob associates who stored the weapons. The Mob also placed a premium on retaining firearms. At one meeting, McArthur instructed Mob members to “cherish” firearm ownership and to stop losing Mob weapons.

McArthur and Wuori also increased the Mob's drug trafficking operations. The two men “pooled their money together” to purchase cocaine and divided equally the income derived from their drug sales. Wuori obtained cocaine from suppliers, and then converted the cocaine into crack cocaine. Wuori often completed the conversion process in a residence that he and McArthur shared in Cass Lake, Minnesota. Members frequented the house and assisted McArthur and Wuori in obtaining, packaging, and storing the drugs. McArthur and Wuori sold crack cocaine to several members, who then resold the drugs to individuals throughout Minnesota.

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During McArthur's term as Chief, he often encouraged members to harm rival gang leaders and others who posed a threat to the gang, urging members to be willing to “go out and shoot-'em up.” At one of the Mob's meetings, McArthur told members to attack an enemy of the Mob, instructing one member to shoot at the enemy's residence. McArthur also said that the Mob “need[ed] to whack” the leader of an opposition gang, and that the leader's death “would benefit us all.”

Amos LaDuke, a former associate of the Mob, was the victim of a Mob attack. In early 2010, Mob members, including Wuori and Cree, concluded that LaDuke “needed to be whacked.” Morris also participated in discussions about LaDuke, and Wuori planned to give Morris a “gun ... in case he seen Amos somewhere.” On March 4, 2010, LaDuke was walking in Cass Lake when a car, owned by Cree, approached. Cree, Morris, and two other people were in the vehicle. Morris got out of the car, carrying a firearm as LaDuke started to run away. Morris fired several rounds toward LaDuke, striking LaDuke three times before a former police officer drove his truck between Morris and LaDuke and ended the encounter. Morris fled the scene; authorities arrested him nearby shortly thereafter. Cree and the others in the car drove away during the shooting, and Cree was apprehended in an unrelated incident later that month.

The Mob also went to great lengths to protect its drug distribution territory. Of particular concern to the Mob was Lawrence Daniels, a drug dealer who competed against the gang for control of the Cass Lake drug trade. Starting in May 2010, Mob members talked about harming Daniels in hopes of removing him from their territory. During one conversation, McArthur and Wuori told Mob members Roberts, Emilio Bunker, Jeremee Kraskey, Cory Oquist, and Pedro Sayers that they wanted to find Daniels and “eliminate him by any means.” McArthur and Wuori decided to send members to “get ... information out” of a known associate of Daniels about Daniels's whereabouts; from that excursion Mob members determined that Daniels was living in Bemidji, Minnesota.

Shortly after learning Daniels's location, McArthur and other members, including Wuori, Bunker, Kraskey, and Roberts, discussed “going to Bemidji ... and shooting” Daniels. On August 21, 2010, Wuori drove Bunker, Oquist, and Sayers to Bemidji, where the three men shot into a home where they believed Daniels lived. They realized soon after, however, that Daniels had no connection to the residence. In the presence of McArthur and Roberts, the four members recounted their error. Days later, on August 24, some of the same members made a second attempt on Daniels, shooting at the Raisch residence where Daniels was staying.

The Mob continued to pursue Daniels. At the request of McArthur and Wuori, Mob member Dale Pindegayosh agreed to participate in a home invasion to intimidate Daniels. On March 28, 2011, Pindegayosh and three other members, armed with firearms, broke into the home of Daniels's father-in-law, John Wilke. Approximately two months later, McArthur and Wuori requested that Pindegayosh rob the Wilke home. Pindegayosh opted not to complete the crime, and that was the last evidence concerning Mob activity toward Daniels.

B.

Federal and state authorities began investigating the Native Mob as early as 2004. The investigation expanded after the LaDuke shooting. During the investigation, members-turned-informants wore recording devices to four Mob meetings in

836 F.3d 938

2010 and 2011. Law enforcement officers conducted surveillance of several Mob members and installed GPS devices on vehicles used by members.

In January 2012, a grand jury charged Cree, Morris, McArthur, and others in a multicount indictment. Cree, Morris, and McArthur proceeded to trial. After a six-week trial, which included testimony from victims of Mob attacks, former Mob members, and investigators, a jury convicted the men of several charges. After the trial, the district court denied the defendants' motions for judgments of acquittal or, in the alternative, new trials.

Cree was convicted of conspiracy to participate in racketeering activity, see 18 U.S.C. § 1962(d), and conspiracy to distribute and possess with intent to distribute controlled substances. See 21 U.S.C. §§ 841(a), (b), 846. He also was convicted of four counts related to his involvement in the LaDuke shooting: conspiracy to use and carry firearms during and in relation to a crime of violence, see 18 U.S.C. § 924(o ), attempted murder in aid of racketeering, see id. §§ 1959(a)(5), 2, assault with a dangerous weapon in aid of racketeering, see id. §§ 1959(a)(3), 2, and use and carrying of a firearm during and in relation to a crime of violence. See id. §§ 924(c), 2. The district court sentenced Cree to 292 months' imprisonment.

Morris's convictions stemmed from the LaDuke shooting. He was convicted of attempted murder in aid of racketeering, assault with a dangerous weapon in aid of racketeering, use and carrying of a firearm during and in relation to a crime of violence, and possession of a firearm as a previously convicted felon. See id. § 922(g). Over Morris's objection, the district court at sentencing ruled that Morris's three prior Minnesota third-degree burglary convictions constituted “violent felonies” for purposes of the Armed Career Criminal Act. See id. § 924(e). Because the court found that Morris had at least three previous convictions for violent felonies, he was subject to a mandatory minimum 180–month sentence and a maximum of life on his conviction for possession of a firearm as a previously convicted felon, Count 6. See id. The court sentenced Morris to 360 months' imprisonment on that count and to 420 months' imprisonment total.

McArthur was convicted of conspiracy to...