United States v. Parker

• Decision Date: 12 September 2017
• Docket Number: Nos. 16-2541, 16-2598, 16-3086, 16-3334, 16-3335.,s. 16-2541, 16-2598, 16-3086, 16-3334, 16-3335.
• Citation: 871 F.3d 590
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Darryl PARKER, Defendant-Appellant United States of America, Plaintiff-Appellee v. Veltrez Black, Defendant-Appellant United States of America, Plaintiff-Appellee v. Jabari Johnson, Defendant-Appellant United States of America, Plaintiff-Appellee v. Tywin Bender, Defendant-Appellant United States of America, Plaintiff-Appellee v. Tywin Bender, Defendant-Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

871 F.3d 590

UNITED STATES of America, Plaintiff-Appellee

v.Darryl PARKER, Defendant-Appellant

United States of America, Plaintiff-Appellee

v.Veltrez Black, Defendant-Appellant

United States of America, Plaintiff-Appellee

v.Jabari Johnson, Defendant-Appellant

United States of America, Plaintiff-Appellee

v.Tywin Bender, Defendant-Appellant

United States of America, Plaintiff-Appellee

v.Tywin Bender, Defendant-Appellant

Nos. 16-2541, 16-2598, 16-3086, 16-3334, 16-3335.

United States Court of Appeals, Eighth Circuit.

Submitted: May 10, 2017

Filed: September 12, 2017

Jeffrey S. Paulsen, Assistant U.S. Attorney, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN, for Plaintiff–Appellee.

Frederick J. Goetz, Goetz & Eckland, Rabea Jamal Zayed, Dorsey & Whitney, Robert August Lengeling, Beito & Lengeling, Paul C. Engh, Paul Engh Law Office, Minneapolis, MN, for Defendants–Appellants.

Darryl Parker, Pro se.

Veltrez Black, Pro se.

Jabari Johnson, Pro se.

Tywin Bender, Pro se.

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.

#neversnitchonan[****]onadry

##Low-end

###FREEDAREAL

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...