Federal Evidence Review

Seventh Circuit notes general danger of unfair prejudice from gang membership evidence in drug trials, but which may be admitted when introduced to show the interrelationship of the defendants in the charged drug operation, in United States v. Alviar, 573 F.3d 526 (7th Cir. July 23, 2009) (Nos. 07-2333, 07-2336, 07-2338, 07-2366, 07-2385)

Under FRE 403, gang membership evidence can be a double-edged sword. On the probative side, the evidence can help explain and prove an on-going relationship of a defendant with others and establish a defendant’s intent, purpose, or opportunity to commit the charged crime.

On the other side are concerns about the prejudicial impact of the evidence. The defendant’s “affiliation” with a gang may be tenuous or fail to indicate the exact nature of the connection. At what point does this evidence become unfairly prejudicial under FRE 403? In a recent case, the Seventh Circuit examined the two edges of the sword of gang affiliation evidence and decided that based on the facts before it, the government had properly introduced the gang affiliation evidence.

In the case, defendant Alviar and other defendants were charged in a cocaine conspiracy. The wholesale distributor in the conspiracy was Tejeda who distributed his product through the efforts of other defendants, including Alviar. The defendants were all “members of the Latin Homeboys street gang, and then they became members of the Latin Kings.” The gang members aided the charged cocaine conspiracy and Tejeda relied on the gang to “serve as lookouts, to direct him to customers, to store and transport cocaine and money for him, and to help him steal cocaine from others.” In particular, defendant Alviar “specialized in providing protection through [a] position[ ] as [a] Latin King enforcer[ ]” and so was able to provide the conspiracy protection from rivals. Alviar, 573 F.3d at 532.

Before trial the defendant moved to exclude introduction of the gang affiliation evidence as unfairly prejudicial under FRE 403. The trial court denied this motion. At trial, “[d]efense counsel objected to gang evidence throughout the trial, which included some 600 references to defendants’ Latin Kings associations, and some 100 references to defendants’ Latin Homeboys affiliations.” Alviar, 573 F.3d at 534. After his conviction, the defendant claimed the admission of this gang evidence was reversible error.

The Seventh Circuit affirmed admission of the gang evidence, although noting its “substantial risk of unfair prejudice.” In the Seventh Circuit, however, certain situations have proved capable of overcoming this danger, specifically in cases involving:

• The “existence of a joint venture or conspiracy and a relationship among its members” and each defendant’s knowledge of and participation in the drug conspiracy. Alviar, 573 F.3d at 536 (citing United States v. Westbrook, 125 F.3d 996, 1007 (7th Cir. 1997))
• The “interrelationship between people is a central issue” in a conspiracy case. Alviar, 573 F.3d at 536 (citing United States v. Thomas, 86 F.3d 647, 652 (7th Cir. 1996) (affirming ruling allowing gang evidence because that evidence “helped demonstrate the existence of the conspiracy and the connections between members of the conspiracy” “Gang affiliation is particularly relevant, and has been held admissible, in cases where))
• Establishing criminal intent or agreement to conspire. Alviar, 573 F.3d at 536 (citing United States v. Sargent, 98 F.3d 325, 328 (7th Cir. 1996) (“[G]ang membership can be key to establishing criminal intent or agreement to conspire.”))

In the defendant’s case, the circuit found no error in admitting the testimony, explaining:

“[T]he evidence that the government submitted was relevant to proving the conspiracy allegations set forth in the indictment. The evidence established that Tejeda was a drug dealer who employed a network of associates to obtain and to distribute the drugs, and that the majority of individuals that made up the network were in the Latin Homeboys and/or the Latin Kings with Tejeda. For example, the evidence established that Alviar and Melero had been Latin Homeboys with Tejeda, and later became Latin Kings with Madrigal and him. The fact that these four individuals were bound together by their gang membership made it more likely that they participated in a conspiracy. Testimony also established a link between gang membership and protection. While Tejeda once had expressed concerns about being robbed, after he became a Latin King, he did not express the same concerns. The evidence supported the argument that he no longer was concerned because Alviar and Melero, as Latin King enforcers, provided protection.”

The circuit specifically rejected the contention that “the government and the trial court confused evidence of membership in the gang with evidence of membership in the conspiracy.” The circuit distinguished Alviar’s case from an earlier Seventh Circuit case involving gang membership evidence, United States v. Avila, 465 F.3d 796, 798 (7th Cir. 2006) (where “negligible evidence” that the defendant belonged to a gang was produced at trial, even if the defendant was a gang member, there was “no evidence” that he was a part of the charged conspiracy). In contrast, in Alviar’s case “the government elicited testimony to show that Tejeda’s drug trafficking operation used gang members in certain defined roles. The government did not simply equate any membership in the gang with being a co-conspirator. The government’s use of gang evidence was not improper in the instant case.” Alviar, 573 F.3d at 537.

Alviar underscores how to successfully overcome some of the hurdles in submitting gang affiliation evidence. However, the case also demonstrates that the prejudicial nature of gang evidence presents a double-edged sword.