United States v. Darryl Parker

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-2541
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Darryl Parker
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 16-2598
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Veltrez Black
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 16-3086
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jabari Johnson
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 16-3334
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Tywin Bender
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 16-3335
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Tywin Bender
lllllllllllllllllllll Defendant - Appellant
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Appeals from United States District Court
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for the District of Minnesota - St. Paul
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Submitted: May 10, 2017
Filed: September 12, 2017
____________
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.
1
See Matt McKinney, Three Charged in Gang Shootings, Star Tribune, May
6, 2014, at B3; Matt McKinney & David Chanen, A Bloody Summer of Gang Warfare
Ahead?, Star Tribune, May 27, 2010, at B1, B5.
-3-
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,
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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:
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@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.
2
Testimony revealed that “Bogus” and “Chief” are common nicknames for
Antonio Lewis and Veltrez Black, respectively.
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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. §§ 371and 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
3
Black also argues that his overall sentence is substantively unreasonable. We
need not address this argument because we are vacating his possession conviction and
remanding his case for resentencing.
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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
prejudice him and convict him of having the wrong friends. We disagree.
“[A] 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)).
In 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
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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 association. Id.Black 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.
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The 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.
On this 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.
Beyond 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
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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 prejudicial.
Second, 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 district court.
Third, 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.
Finally, Black argues that the “cumulative effect” of all this information made
the trial “fundamentally unfair.” Gang evidence cannot be used “if its purpose is
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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.
2. Conspiracy Conviction
“In 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. 2007). We will not reverse the verdict if the evidence is sufficient for a jury
to find beyond a reasonable doubt that the defendant participated in the conspiracy.
See id.-12-
Black argues that the government failed to produce sufficient evidence to prove
beyond a reasonable doubt that he personally conspired to obtain weapons. See
Rolon–Ramos, 502 F.3d at 754 (saying “a defendant’s mere presence” or knowledge
of a conspiracy is “insufficient to establish membership in a conspiracy” (quoting
United States v. Jimenez–Villasenor, 270 F.3d 554, 558 (8th Cir. 2001)). The
government charged Black of conspiring with members of the One-Nine street gang
to possess weapons. To establish that conspiracy, the government had to prove: (1) an
agreement existed; (2) Black joined it; (3) Black understood the agreement’s purpose;
and (4) a conspiracy member completed an overt act in furtherance of the conspiracy.
See United States v. Bassett, 762 F.3d 681, 685 (8th Cir. 2014). The government met
this burden.
The government showed that Black was in the presence of both One-Nine
members and firearms five times during the conspiracy time frame. For example,
during a search on December 12, 2013—a few weeks after Washington’s death—law
enforcement found Black in the presence of known One-Nine members and seven
firearms. Law enforcement discovered guns and ammunition at various places
throughout the residence, many of which had DNA samples of multiple individuals,
implying collective possession. In fact, Black acknowledged receiving ammunition
from his One-Nine associates immediately before the search:
Q. Well, how is it that you knew there were bullets there?
A. Deontae just told me that. There’s some [bullets]—he said, “You
need some shells in your gun?” And I was, “Yeah.”
Q. So Deontae told you that?
A. Correct.
Q. That if you needed shells for your gun they have some?
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A. Correct.
Black’s admissions demonstrate knowledge of the group’s practice of
collectively sharing ammunition. Black admitted possessing a .22 mm Magnum
hidden in the rafters of the house. All this evidence is probative of his knowledge of
the One-Nine’s collective and secret storage practices. Of the three guns found in the
room with Black, two could not be excluded as having his DNA—all three had DNA
mixtures of at least “four or more individuals” according to DNA expert Katherine
Kingsland. Further, evidence about the other instances of possession show Black’s
knowledge of the gang’s illegal possession of firearms and provide a strong inference
of his active participation.
The government’s case went beyond the circumstantial evidence placing Black
in the presence of One-Nine members with firearms. It also presented evidence of
Black’s motivation to join the One-Nine’s retaliation against the Taliban and that he
indeed did so. The government presented various pictures from social media showing
Black’s public alignment with the One-Nine. One photo showed Black “throwing
down” the Taliban gang sign, which is a statement of disrespect. The caption read,
“One time for da 1-9. Queen Block.” Another photo shows Black wearing a shirt
saying “I am my brother’s keeper” in honor of Washington, implying an intention to
retaliate for his brother’s death. Another photo included Black wearing the number
19 and the phrase “Long Live King Crack.” Because social media has played a
significant role in escalating the feud between the One-Nine and the Taliban, Black’s
public posts show support for his brother’s gang beyond merely watching on the
sidelines. These posts demonstrate Black that picked a side in the conflict.
The evidence presented at trial shows that (1) Black knew that the One-Nine
members were fighting with the Taliban; (2) he intentionally joined that fight; (3) he
knew the group was amassing weapons for the fight; and (4) Black, a felon,
participated in illegally sharing weapons with other known felons. “[V]iewed in the
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light most favorable to the verdict,” the evidence presented at trial was sufficient to
support Black’s conviction for conspiracy. Rolon–Ramos, 502 F.3d at 754; see also
United States v. Herra–Herra, 860 F.3d 1128, 1132 (8th Cir. 2017) (“Given our
standard of review, there was enough circumstantial evidence at trial to establish that
there was a . . . conspiracy, that [the defendant] knew of the conspiracy, and that he
intentionally became a part of it.”).
3. Possession Conviction
The government indicted Black for illegal possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). Authorities found the allegedly illegal firearm after a police
chase involving a vehicle that Black occupied. Black contends that there is
insufficient evidence to support his conviction. We agree and therefore vacate this
conviction.
On April 22, 2014, law enforcement executed a warrant for Black’s arrest on
a charge of violating supervised release. Officers observed Black retrieve an
unidentified object from his own vehicle and then enter a vehicle driven by One-
Nine-member Omar Rush. In an unmarked vehicle, Officers Ryan Hjelm and
Benjamin Johnson followed Rush’s vehicle and attempted to make a stop. Rush
pulled into an apartment complex and stopped momentarily. Officers saw Black
“bend over like he was reaching under the [passenger] seat.” When the officers exited
their vehicle, Rush rapidly sped away. The careening vehicle made a quick left turn
and collided with an oncoming pickup truck. Rush continued before the officers
stopped the car a few blocks away. The officers recorded the entire chase using their
dashboard camera. Unfortunately, Rush’s vehicle is out of frame for about three
seconds as it rounds a corner and is obscured by a building.4
4
This video was submitted into evidence, and the court has reviewed it.
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After the chase ended, a maintenance worker for the apartment complex arrived
on scene and noticed a firearm. The firearm was located along the path traveled by
the vehicle that Black occupied. The maintenance worker alerted law enforcement,
stating, “Maybe that’s what you’re looking for.” Until then, law enforcement did not
suspect that a firearm could be involved in the chase. The dashboard camera does not
show a gun leaving the vehicle, nor does it show a door open or a hand reaching out
of the window. Forensic examination of the gun did not reveal any DNA or
fingerprint evidence. None of the officers or other witnesses testified to seeing any
activity from inside the vehicle to connect it to the weapon during those missing three
seconds of footage, as the testimony of Officer Hjelm illustrates:
Q. [A]t any point during this chase did you see any of the car doors
open and something being dropped?
A. No.
Q. At this point did you see anything being thrown out?
A. No.
***
Q. You have no idea how that object got there, right?
A. I have a speculation.
“While reasonable inferences from the evidence weigh against the defendant,
speculation does not.” United States v. Pace, 922 F.2d 451, 453 (8th Cir. 1990). The
government argues that five distinct inferences raise the evidence presented against
Black above speculation, but they are not persuasive. First, the government argues
that in a prison letter from 2010, Black wrote that he would carry a gun “at all times,”
and the jury could infer that he was likely carrying a gun in this instance—especially
noting that officers testified that Black went to his vehicle to retrieve an unidentified
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item before the chase began. Black’s statement in 2010 that he would carry a gun at
all times does not sufficiently support an inference that he actually had one on April
22, 2014. At best, the 2010 statement goes to propensity. See United States v.
Johnson, 439 F.3d 884, 887 (8th Cir. 2006) (“Propensity evidence, whether of a
person’s general character or examples of specific bad acts, is ordinarily excluded
because of the likelihood the jury may misuse it.”).
Second, the government relies on the “furtive movements” Black made when
the vehicle initially stopped before the chase, citing United States v. Chatmon, 742
F.3d 350, 352 (8th Cir. 2014), for the proposition that such movements move the
inference of possession beyond speculation. In Chatmon, we upheld a possession
charge for a gun discovered by police in a hidden compartment of the vehicle that the
defendant was driving before his arrest. Id. at 351. The defendant’s constructive
possession of the vehicle, plus his movements inside the vehicle immediately before
arrest near the secret compartment, amounted to sufficient evidence to support the
conviction. Id. at 352–53. Black’s movements, however, occurred before the chase
began—and unlike those in Chatmon, they are not directly connected to the gun’s
location or to the defendant’s constructive possession of the vehicle.
Third, the government points to Black’s flight from police as proof of gun
possession. See United States v. Garrett, 648 F.3d 618, 622 (8th Cir. 2011) (affirming
a conviction when defendant’s flight evidence was coupled with eye-witness
testimony). This fact does not advance the quantum of proof for Black’s alleged gun
possession beyond speculation. Black was not driving, and the decision to flee could
have been Rush’s alone, himself a convicted felon. Black also knew that a warrant for
his arrest had been issued for violating supervised release. This too could explain
Black’s flight, regardless of any firearm possession. “[T]he government must show
a sufficient nexus between the defendant and the firearm.” Id. (quoting United States
v. Evans, 431 F.3d 342, 345 (8th Cir. 2005)). In Garrett, a witness testified that she
“observed a hand throw a gun out of the window,” and we upheld the verdict because
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“[t]he jury could infer from Garrett’s actions of fleeing the scene of the traffic stop
and the testimony about the gun that he unlawfully possessed the firearm.” Id. at
622–23. Without testimony actually connecting the gun to the fleeing vehicle or to
Black, the government’s proof falls short of enabling a jury to make a reasonable
inference of possession.
Fourth, the government contends that only Black could have thrown the gun
because the driver of the pickup truck struck by Black’s vehicle saw Rush with “his
hands on the steering wheel.” But, the driver also admitted that he “probably wouldn’t
have seen” Rush throw the gun if Rush had done so. Even if the driver’s testimony
completely precluded a finding that Rush tossed the gun, his testimony alone does not
preclude the possibility that the gun was already on the ground before the vehicle
even arrived. Thus, we are left with only speculative inferences to conclude that the
gun came from Black.
Finally, the government argues that because the gun was found at “the exact
spot” where Black was out of camera view and because there was asphalt on the gun,
the only reasonable inference is that the firearm came from Black. We disagree. On
these facts, assuming the firearm came from the vehicle at all is speculative.
To establish firearm possession, the government had to prove actual or
constructive possession beyond a reasonable doubt. Garrett, 648 F.3d at 622. It is
possible that Black possessed the firearm and discarded it as the government alleged,
but based on the record evidence, we think “a conscientious mind would have to have
entertained a reasonable doubt.” Ramos, 852 F.3d at 755 (quoting United States v.
Hall, 999 F.2d 1298, 1299 (8th Cir. 1993)). Therefore, we vacate Black’s firearm
possession conviction due to insufficient evidence and remand for resentencing.5
5
Because we vacate Black’s conviction, we need not address his argument that
the district court erred by failing to dismiss his possession charge for inaccurate
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B. Tywin Bender
Tywin Bender brings two arguments on appeal. First, he argues that the district
court erred in denying his prospective jury instructions. In this respect, we affirm
Bender’s conviction. Second, he argues that his sentence is procedurally unsound and
substantively unreasonable. We find that Bender’s sentence is procedurally unsound
because of a Guidelines calculation error, and we vacate Bender’s sentence and
remand for resentencing.
1. Jury Instructions
“We review a district court’s rejection of [a] defendant’s proposed
instruction for abuse of discretion, and we recognize that district courts
are entitled to broad discretion in formulating the jury instructions.”
“We will affirm so long as the jury instructions given by the district
court, ‘taken as a whole, fairly and adequately submitted the issues to
the jury.’”
Thunder, 745 F.3d at 873–74 (alteration in original) (citations omitted) (first quoting
United States v. Ironi, 525 F.3d 683, 688 (8th Cir. 2008); and then quoting Chatmon,
742 F.3d at 354). Bender contends that the district court abused its discretion in
denying his instructions about his free speech defense, the elements of conspiracy,
and the time frame of the conspiracy.
a. Free Speech Instruction
Bender argues that the district court erred in rejecting his request for a jury
instruction regarding his defense based on the Free Speech Clause of the First
Amendment of the U.S. Constitution. See Camreta v. Greene, 563 U.S. 692, 727
(2011) (Kennedy, J., dissenting) (saying the Constitution may be used “as a defense
against criminal prosecution”). He argues that he had a First Amendment right to state
his disapproval of the behavior of the two government witnesses via the e-mail that
indictment testimony.
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he sent to prisoners at the Rush City Correctional Facility. He contends that the e-mail
did not constitute a true threat but rather was protected speech.
In denying Bender’s free speech instruction, the district court concluded that
all of the purported First Amendment issues raised by Defendants are
simply another way of arguing Defendants did not act with intent to
retaliate. Accordingly, the Court does not believe the jury need be or
should be given separate First Amendment instructions, as it will be
expressly instructed that it must find the Defendants acted with intent in
order to be found guilty; further instructions may both confuse the issues
and be unnecessarily complex. Defendants are free, of course, to argue
to the jury that they did not act with intent to retaliate (and the Court will
consider a theory-of-defense instruction along these lines once such an
instruction has been submitted) . . . .
Bender relies on Elonis v. United States, 135 S. Ct. 2001, 2013 (2015), in which the
Supreme Court reversed a defendant’s conviction of threatening his ex-wife on
Facebook because the court’s instructions did not require the jury to consider the
defendant’s intent in making the posts but rather the reasonable observer’s
interpretation of them. We find Elonis inapplicable to Bender’s case.
“As in other First Amendment cases, the court is obligated ‘to make an
independent examination of the whole record in order to make sure that the judgment
does not constitute a forbidden intrusion on the field of free expression.’” Snyder v.
Phelps, 562 U.S. 443, 453 (2011) (internal quotation marks omitted) (quoting Bose
Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984)). The
First Amendment prohibits the punishment of expressing unpopular ideas, “so long
as there is no showing of an intent to incite disobedience” to constitutional laws.
Cohen v. California, 403 U.S. 15, 18 (1971). Here, the record facts do not support
Bender’s claim that he was simply exercising his First Amendment rights. The facts
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established at trial show that Bender conspired to threaten government witnesses. The
First Amendment does not shield such speech.
Bender argues that his e-mails were merely “idle” threats, like rap lyrics,
which—although offensive to some—are still entitled to protection under the Free
Speech Clause. See id. at 25 (“[O]ne man’s vulgarity is another’s lyric.”). The facts
belie his argument. Bender claims that the e-mails were never meant to be delivered,
but in fact one of the messages reached its intended recipient, and the other would
have done so if it had not been intercepted by corrections officers. Bender claims that
he was only expressing negative emotions, yet the e-mails clearly instruct his fellow
gang members to “smash” the witnesses with “no talking” and “no explanations.”
Bender attempted to achieve anonymity by having a friend send the e-mails via a
different prisoner’s telephone identification number. Such secrecy suggests that the
e-mails were not merely “idle” threats. “Defendants are entitled to a theory of defense
instruction if it is timely requested, is supported by the evidence, and is a correct
statement of the law.” Thunder, 745 F.3d at 874 (quoting Chatmon, 742 F.3d at 354).
Bender’s defense was not supported by the evidence. The district court did not abuse
its discretion in denying his First Amendment instruction.
b. Conspiracy Elements
Bender next argues that the district court abused its discretion by not accepting
the following jury instruction: “For a conspiracy to exist there must be at least two
co-conspirators, since one cannot conspire with oneself.” (citing United States v.
Gisehaltz, 278 F. Supp. 434, 437 (S.D.N.Y. 1967)). Bender’s co-conspirator was
acquitted, and thus Bender argues that the jury wrongfully convicted him for
conspiring with himself. We find this argument without merit.
First, it is not unusual for a conspiracy conviction to stand even if one
codefendant is acquitted. Our focus centers on the strength of the evidence that the
defendant conspired to commit the offense. The conviction will be upheld if it is
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supported by sufficient evidence. See Bassett, 762 F.3d at 685. Second, the jury was
instructed that in order to find a conspiracy in Bender’s case, they had to agree that
“two or more persons reached an agreement to retaliate against witnesses Antonio
Lewis and Kibbie Walker.” The evidence against Bender was sufficient to establish
that he conspired with his codefendant to retaliate against the government witnesses.
The instruction, like the one Bender requested, required at least two coconspirators.
And, it accurately described the law. See id. (approving a similar instruction). “We
conclude that the district court’s instructions adequately submitted the issues to the
jury and that it did not abuse its discretion in denying the requested instruction.” Soo
Line R.R. Co. v. Werner Enters., 825 F.3d 413, 422 (8th Cir. 2016).
c. Conspiracy Time Frame
Finally, Bender argues that the jury instructions allowed him to be convicted
for actions outside of the indictment because the instructions included the following
sentence: “The [conspiracy] agreement may last a long time or a short time.” Bender
relies on Stirone v. United States, in which the Supreme Court reversed a defendant’s
conviction because the conviction “no longer [reflected] the indictment of the grand
jury.” 361 U.S. 212, 216 (1960) (quoting Ex parte Bain, 121 U.S. 1, 13 (1887)); see
also United States v. Spencer, 592 F.3d 866, 873 (8th Cir. 2010) (“A constructive
amendment of an indictment occurs when jury instructions broaden the scope of an
indictment by permitting a conviction for an uncharged offense.”). Bender’s case,
however, is distinguishable from Stirone.
Bender’s indictment alleged a conspiracy “[f]rom on or about at least October
23, 2015[,] through on or about October 25, 2015, . . . with intent to retaliate against
[Lewis] and [Walker] for their testimony . . . given on October 19, 2015.” Bender
argues that it was impossible for him to conspire to retaliate with the other inmates
during the indictment time frame because a several day delay in the jail’s mail system
prevented the other inmates from receiving his threatening messages during that time.
See United States v. Easom, 569 F.2d 457, 459 (8th Cir. 1978) (reversing a jury
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instruction when no evidence was presented to show existence of a conspiracy during
the relevant date). This argument misunderstands the facts and the law. Bender was
indicted for conspiring with his codefendant outside of jail to send the messages to
his fellow inmates. Bender was indicted for the conspiracy with his non-inmate
codefendant—not a conspiracy with the other inmates. All the communications
between Bender and his codefendant, and the steps that his codefendant took to send
the messages, occurred during the relevant time frame. Further, evidence presented
at trial covered only the time frame as described in the indictment. The government
needed to show only that Bender conspired with his codefendant during the
indictment time frame. See Spencer, 592 F.3d at 876. The district court did not abuse
its discretion by denying Bender’s objection to the time-frame jury instruction.
Finding his jury instructions arguments without merit, we affirm Bender’s
conviction.
2. Bender’s Sentence
Additionally, Bender appeals his sentence as substantively unreasonable and
procedurally unsound. “We review a district court’s sentence in two steps: first, we
review for significant procedural error; and second, if there is no significant
procedural error, we review for substantive reasonableness.” United States v. Sadler,
No. 16-3946, 2017 WL 3139446, at *2 (8th Cir. July 25, 2017) (quoting United States
v. O’Connor, 567 F.3d 395, 397 (8th Cir. 2009)). Improperly calculating a
defendant’s Guidelines range is a significant procedural error. Molina–Martinez v.
United States, 136 S. Ct. 1338, 1345–46 (2016). We review the district court’s
application of the Guidelines de novo. United States v. Mitchell, 825 F.3d 422, 425
(8th Cir. 2016) (per curiam).
Bender pleaded guilty to the firearm conspiracy charge included in the initial
group indictment. Later, Bender was also convicted of conspiring to retaliate against
the government witnesses. These two cases, related and close in time, were combined
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for sentencing purposes. At sentencing, the district court calculated a Guidelines
range of 210 to 262 months. To set this range, the court grouped Bender’s two
sentences and selected the range provided by the conviction with the highest
Guidelines range—the firearm conspiracy. This calculation included a two-level
enhancement pursuant to U.S.S.G. § 3C1.1 for obstruction of justice. Bender objected
to this enhancement.
In United States v. Galaviz, we reversed the application of the obstruction-of-
justice enhancement for a similarly situated defendant. 687 F.3d 1042, 1043 (8th Cir.
2012). Galaviz, the defendant, pleaded guilty and, after being imprisoned, conspired
to murder the confidential informant (CI) in his case. Id. Looking at the language of
§ 3C1.1, we said that “because Mr. Galaviz had already pleaded guilty, he could not
have intended to obstruct justice ‘with respect to the instant offense’ by plotting to
kill [the CI] unless he thought that [the CI] was going to testify against him at
sentencing.” Id. (quoting § 3C1.1(1)). When “there is no evidence that retaliation
would impede the progress of [the defendant’s] case in any way,” the enhancement
pursuant to § 3C1.1 cannot be applied. Id.
Though Bender did not bring Galaviz to the district court’s attention, it controls
here and requires that we vacate Bender’s sentence. Although Bender conspired
against witnesses in Black’s trial, the government did not establish that Bender
believed these witnesses would be used against him during sentencing, and in fact,
they were not. Even construing Bender’s actions as relating to “an otherwise closely
related case, such as that of a codefendant,” see § 3C1.1 cmt. n.1, the retaliation
occurred after Black’s trial concluded. Thus, under Galaviz, Bender’s actions were
not “intended to obstruct justice on the instant offense of conviction.” 687 F.3d at
1043. Bender was properly prosecuted for retaliating against a government witness,
and this retaliation occurred after he and his codefendants had all been found guilty.
Thus, the obstruction-of-justice enhancement did not apply in calculating Bender’s
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Guidelines range regarding his previously pleaded charge. Therefore, we vacate
Bender’s sentence and remand his case for resentencing.
C. Jabari Johnson
Jabari Johnson pleaded guilty to the firearm conspiracy charge and a separate
count of felony possession. Although the probation office suggested a Guidelines
range of 130 to 162 months’ imprisonment, at sentencing the government sought to
honor the Guidelines range of 63 to 78 months contained in Johnson’s plea
agreement. The district court sentenced Johnson to 60 months for the conspiracy
charge and 78 months for the possession charge. Johnson argues that the district court
committed procedural error by failing to adequately justify the sentence imposed,
although he failed to make this objection at sentencing. He also argues that the district
court imposed a substantively unreasonable sentence because it failed to adequately
consider the factors under 18 U.S.C. § 3553(a). We disagree.
When we review a defendant’s sentence, we “first ensure that the district court
committed no significant procedural error,” such as “failing to adequately explain the
chosen sentence.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en
banc) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). When the defendant
fails to object to the adequacy explanation of a sentence, we review the explanation
for plain error. See United States v. Chavarria–Ortiz, 828 F.3d 668, 671 (8th Cir.
2016). “[W]here a matter is conceptually simple, and the record makes clear that the
sentencing judge considered the evidence and arguments, the law does not require the
judge to write or say more.” Id. (citing Rita v. United States, 551 U.S. 338, 359
(2007)). “Sentences within the advisory Guidelines range are presumed
reasonable . . . .” Herra–Herra, 860 F.3d at 1132.
In memoranda to the court, Johnson argued that three separate factors
supported a downward variance: (1) he suffered hardship in county facilities because
of his gunshot wound; (2) he had provided assistance to law enforcement; and (3) and
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his criminal history was overstated. At sentencing, the district court heard statements
from counsel, commented on the numerous letters submitted by Johnson’s family, and
thanked Johnson’s supporters for attending the hearing. The court also admitted into
evidence a letter that Johnson wrote. After counsel argued the variance motion, the
court individually rejected all three of Johnson’s reasons for a downward variance.
The court, recognizing Johnson’s continuing medical needs, stated, “I will
recommend a medical facility” for Johnson’s placement.
When “[t]he record shows that the court listened to the parties’ arguments and
determined that the circumstances did not warrant a downward variance,” we find no
error (much less plain) if there is “nothing to suggest a reasonable probability that the
district court would have imposed a more lenient sentence if the court had elected to
discuss the appropriateness of the sentence at greater length.” Chavarria–Ortiz, 828
F.3d at 672. The record demonstrates that the district court considered Johnson’s
variance motion, even asking Johnson’s counsel to present further arguments. The
court rejected Johnson’s three arguments individually, but took into account
Johnson’s medical argument for recommending him to a medical facility. We find no
error, plain or otherwise, here.
For similar reasons, Johnson argues that his sentence was substantively
unreasonable because the district court “fail[ed] to consider . . . relevant factor[s] that
should have received significant weight.” Feemster, 572 F.3d at 461 (quoting United
States v. Kane, 552 F.3d 748, 752 (8th Cir. 2009)). Johnson argues that the district
court failed to consider his medical needs, his good characteristics, or his assistance
to law enforcement. The record belies these contentions. As noted above, in response
to Johnson’s medical needs, the court recommended a medical facility. The court
recognized “the likelihood that [Johnson’s family] support will be there” upon release
from imprisonment, but did not find that his good personal characteristics warranted
a lower sentence:
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[W]ell, he has an extensive criminal record. He has been in trouble for
a long time; and as I go through the sentencing recommendation from
the Pretrial Services, they outline—just it’s basically a life of crime. And
he has some good qualities, there’s no question about that. But
everything in here indicates that he is likely, unless a sentence is
imposed which will get the message across to him, he’s likely to commit
further crimes. . . .
***
So I take all these factors into account and it’s my judgment that
the appropriate sentence in this case will be a sentence of 78 months.
That’s the high end of the guideline range, but I think it’s the
appropriate end of the guideline range.
Regarding Johnson’s assistance to law enforcement, the court stated: “He probably
did [help] in some ways, but the Government has not come and asked to have a
departure on that ground; and I think without the Government asking for it, I’m in no
position to rule on that in his favor.” Johnson also argues that the district court
weighed his criminal history too heavily, but the district court “has wide latitude to
weigh the § 3553(a) factors and assign some factors greater weight than others in
determining an appropriate sentence.” United States v. Boykin, 850 F.3d 985, 989 (8th
Cir. 2017) (per curiam) (quoting United States v. David, 682 F.3d 1074, 1077 (8th
Cir. 2012)). The transcript shows that the court did consider Johnson’s arguments, but
just did not give them the weight that Johnson preferred. Therefore, we affirm
Johnson’s sentence.
D. Darryl Parker
Darryl Parker received an identical sentence to his codefendant Jabari
Johnson—60 months’ imprisonment for the conspiracy charge and an additional
78 months for his individual possession charge to run concurrently. Because Parker
does not allege a procedural error, “we consider only the substantive reasonableness
of his sentence for an abuse of discretion.” Boykin, 850 F.3d at 988. “[I]t will be the
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unusual case when we reverse a district court sentence as substantively
unreasonable.” David, 682 F.3d at 1077. In this review, we may presume “that a
within-Guidelines sentence is reasonable.” Peugh v. United States, 133 S. Ct. 2072,
2080 (2013). “This review is ‘narrow and deferential.’” United States v. Hairy Chin,
850 F.3d 398, 403 (8th Cir. 2017) (quoting Feemster, 572 F.3d at 464).
Although Parker recognizes that he agreed to a Guideline range of 63 to
78 months’ imprisonment in his plea agreement, he argues that any sentence above
63 months would be unreasonable. According to Parker, unlike his codefendants, he
“was not the perpetrator of any of [the] individual acts of violence,” and he claims
that his criminal history, although calculated at a Category VI, lacks the “serious acts
of violence” perpetrated by his codefendants. He also points to the “real and
significant steps toward changing his life for good” in taking classes while
incarcerated. Parker suggests that the district court abused its discretion in failing to
grant him a downward variance because his sentence is “greater than necessary.” See
18 U.S.C. § 3553(a). Parker made all these arguments before the district court, and
the court rejected them:
I don’t think there’s grounds for [a variance] in this case. I think the
Defendant’s conduct here and his history would indicate that he is
properly in the guideline range in which he finds himself today. I’m not
convinced that he has made a turn yet in his conduct. He says he does,
he says he will. He wants to go back to the family. But I think it’s almost
too late for that. Not too late in the sense of at some point in time, but
right now.
“The Supreme Court has instructed the sentencing court to consider the
§ 3553(a) factors in formulating its sentencing decisions to fit the specific
circumstances of each defendant.” Boykin, 850 F.3d at 989. Of these factors, the
district court has to consider whether the sentence “afford[s] adequate deterrence”
and “the need to avoid unwarranted sentence disparities” among similarly situated
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defendants. 18 U.S.C. § 3553(a). For Parker, the district court imposed the exact same
sentence that it imposed on his codefendant Johnson, and Parker’s sentence typifies
those of his other conspiracy codefendants as a whole. The district court determined
that Johnson’s sentence was appropriate for his specific crime and personal
characteristics. We will not reverse the district court simply because it assigned
greater weight to certain factors than others in fashioning the defendant’s sentence.
Boykin, 850 F.3d at 989. “The district court did not abuse its discretion”; Parker’s
“final sentence is not substantively unreasonable.” Hairy Chin, 850 F.3d at 404.
III. Conclusion
We therefore affirm the sentences of Darryl Parker and Jabari Johnson; affirm
the retaliation conviction of Tywin Bender; and affirm Veltrez Black’s conspiracy
conviction. We vacate Black’s possession conviction for insufficient evidence and
vacate Bender’s sentence as procedurally unsound. We remand Black and Bender’s
cases to the district court for resentencing.
COLLOTON, Circuit Judge, concurring in part and dissenting in part.
I concur in all but Part II.A.3, footnote 3, and Part III of the court’s opinion.
I would affirm Veltrez Black’s conviction for unlawful possession of a firearm.
In reversing Black’s conviction based on an assertion of insufficient evidence,
the majority presents an argument of the sort that one might expect from capable
defense counsel at trial. The opinion discusses five incriminating pieces of evidence
separately, hypothesizes why each might be discounted or explained away, and then
concludes that there must be reasonable doubt. Suggesting a “gotcha” moment, the
court cites the testimony of one police officer that he personally had “a speculation”
about the genesis of the seized firearm, and implies that the jury—after considering
all of the evidence in accordance with proper instructions—merely speculated in
reaching its verdict.
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This is not the correct approach to appellate review of a jury verdict. We
review only the legal question “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Musacchio v. United States, 136
S. Ct. 709, 715 (2016) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In
conducting that review, we must evaluate the evidence collectively, taking it all
together as a unified whole, not divide it into discrete categories to be analyzed
separately. And we must remember that “circumstantial evidence is intrinsically as
probative as direct evidence.” United States v. Wilcox, 50 F.3d 600, 602-03 (8th Cir.
1995) (quoting Durns v. United States, 562 F.2d 542, 546 (8th Cir. 1977)). There is
no requirement that the prosecution produce a witness who saw Black with a gun in
hand or tossing a firearm out the window.
The government here presented a convincing circumstantial case that Black
possessed a firearm that he threw from Omar Rush’s vehicle during flight from police
on April 22, 2014. Black acknowledged his intent to possess firearms when he wrote
a letter from prison in 2010, saying that he had been leaving his gun at home, but that
“now” it is going “to be on my hip at all times.” This is not “propensity” evidence,
ante, at 17; it is an admission that was received in evidence without limitation. The
issue here is not admissibility of evidence, but sufficiency of proof.
On the date of the charged offense, police conducted surveillance of Black and
his cousin Omar Rush. They saw Black get into his own car briefly before entering
Rush’s vehicle as the passenger. Black denied that he possessed a gun while with
Rush and testified that he had retrieved a phone charger from his own car before
entering Rush’s. But an officer who later searched Rush’s vehicle after the chase said
police did not find “anything” in the car; another officer said that they found
“nothing.”
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Police then followed the two men and attempted a traffic stop of Rush and
Black in the parking lot of an apartment complex. After Rush and Black momentarily
pulled over, an officer saw Black open the passenger door slightly and lean toward
the floor. A second officer testified that he also saw Black lean forward “like he was
reaching under the seat,” and that based on Black’s movements, he believed that
Black “was possibly armed or hiding something.” A jury could infer that Black was
handling a firearm or attempting to conceal it.
Rush and Black then fled at a high rate of speed through the parking lot. At
one point, after a long straightaway, the suspect vehicle made a ninety-degree left
turn. As Rush and Black turned the corner, an oncoming pickup truck blocked the
view from the trailing police car, and the officers could not see the suspect vehicle
for a few seconds. After the chase ended, police found a firearm—covered with
asphalt-like debris and displaying a marred rear sight assembly—on the ground to the
right of the path where the Rush/Black vehicle had passed. The gun was found in the
exact spot where the passenger side of the suspect vehicle passed while it was out of
sight of the police officers during the chase. A jury could infer that Black chose to
discard the gun at the precise moment when he knew that the officers could not see
him.
The driver of the truck, who was an employee of the apartment complex,
testified that when the Rush/Black vehicle came around the corner, he saw Rush with
both hands on the steering wheel. The jury reasonably could conclude that this
evidence, together with the location of the firearm on the right side of the vehicle’s
path, eliminated Rush as the person who tossed the gun.
The truck driver did not see a gun on the ground when he approached his truck
just before Rush and Black drove past. Another employee, who first saw the gun
after the car chase, said that he did not see the gun when he likely passed the spot
earlier in the day. Neither employee had ever seen a firearm on the ground in several
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years of working at the complex. The jury reasonably could infer that the gun came
from Black during the car chase, not from another source.
Black testified at trial. He denied doing anything with his hands after the
traffic stop, and denied throwing a firearm out the window during the chase. In cross-
examination about his credibility, Black admitted to prior convictions for aiding and
abetting a drive-by shooting, aggravated robbery, and twice unlawfully possessing
a firearm, in 2011 and 2013. He also admitted to attempting to bribe a prosecution
witness to change his testimony in the aggravated robbery case. The jury reasonably
could discredit Black’s denials.
Taking all of this circumstantial evidence together, a rational jury could
conclude beyond a reasonable doubt that Black possessed a firearm on April 22,
2014. The jury rationally could infer beyond a reasonable doubt that Black brought
a firearm (not an undiscovered phone charger) to Rush’s car, that the two men fled
from police after Black considered whether to conceal the gun under his seat, that
Black threw the gun out the window when he knew that he could not be seen by
police, and that Black lied at trial when he denied possessing the gun.
In deciding whether there was proof beyond a reasonable doubt, the jury was
permitted to consider whether the confluence of all these circumstances—the pledge
to carry a gun at all times, the furtive movements after the initial stop, the flight from
police, the discovery of the damaged gun on the chase route precisely where the
vehicle went out of sight, and the employees’ testimony that no gun was seen
earlier—could reasonably be explained as merely an unlucky coincidence for Black.
The majority’s contrary approach of proffering innocent explanations for each piece
of evidence in isolation and concluding that there must be reasonable doubt is
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inconsistent with the proper standard of review. The jury was not irrational to return
a verdict of guilty. I would affirm the judgment of conviction in Black’s case.6
______________________________
6
I would reject Black’s alternative argument that inaccurate testimony by a
police officer before the grand jury warranted dismissal of the indictment. See United
States v. Aldridge, 561 F.3d 759, 763-64 (8th Cir. 2009). I also conclude that the
district court did not abuse its discretion in imposing Black’s sentence.
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