Federal Evidence Review

In cocaine conspiracy case, admitting gang-related evidence for non-propensity purposes - as proof of the prosecution theory that the defendant was a leader of a gang that "could and did" reach agreement with specific drug dealers who purchased from the defendant "protection" against being "robbed or burned" in United States v. King, __ F.3d __ (7th Cir. Dec. 3, 2010) (No. 09-1974)

The admission of gang-related evidence presents two specific problems in the rules of evidence. The first involves identifying the purpose of introducing the evidence. The second problem involves whether the probative value of the evidence is overwhelmed by unfair prejudice. The admission of gang affiliation evidence under FRE 404(b) often focuses on the purpose for which the evidence is offered. But even if the purpose is proper, the evidence must still properly balance probative value with any unfair prejudice that may arise from introduction of the evidence. See, e.g., United States v. Abel, 469 U.S. 45 (1984) (“[N]o abuse of discretion under Fed. R. Evid. 403” for the court to admit government witness's testimony on the defendant's membership in a gang to show bias).

In some cases proof of gang involvement is necessary to show aspects of the charged crime or claim and is generally admitted, despite concerns with creating prejudice and confusion of the issues under FRE 403. See, e.g., United States v. Alviar, 573 F.3d 526, 536 (7th Cir. 2009) (Gang affiliation admitted in drug conspiracy trial because it was relevant to proof of the conspiracy and it also helped prove the protection that the charged criminal organization provided to its participants.). Last week the Seventh Circuit examined another case calling for the application of these principles to consider whether the court should admit gang affiliation evidence.

In the case, defendant King was "a high-ranking member (his title was 'Supreme Inca') of the Latin Kings street gang" and he was indicted for conspiracy to possess with intent to distribute in excess of five kilograms of cocaine, among other drug-related charges. Defendant "King and Augustin Zambrano, an even higher-ranking member (a 'Corona') of the Latin Kings, agreed to accept money and drugs from a lower-ranking Latin King who wanted 'protection” for his cocaine business.'" This deal quickly unraveled because one the lower-ranking Latin King who wanted gang protection was also an informant for the police. King, __ F.3d at __. Eventually, the defendant and other co-defendants were indicted. At trial, over defendant's objection the trial judge admitted gang-related evidence, reasoning that:

"it was central to the government's theory that[defendant] King and [co-defendant] Zambrano, as leaders of the Latin Kings, could and did insure that the gang provided protection for [drug-dealer and also government informer] Guajardo's drug trafficking. In particular, the judge admitted recordings and transcripts regarding: (1) the May 28, 2006, 'violation” at Frankie & Johnny's bar, where King ordered a lower-ranking Latin King to be beaten because he threw a beer at Zambrano's wife; (2) the June 1, 2006, 'Crown Town' meeting, where King rebuked several Latin King officers who disobeyed his order to have the individual who threw the beer stripped of his position in the gang; and (3) the November 21, 2006, conversation, where King explained to Guajardo that Zambrano was unable to raise funds from his 'immigration” business.'"

King, __ F.3d at __. The jury rendered a verdict against the defendant in the case.

As part of his appeal in the case, the defendant contended that the court erred in admitting the gang evidence. The circuit found little merit in this argument. The circuit had previosuly noted that while admission of the gang evidence can be probative, it also can carry a “substantial risk of unfair prejudice.” But the Circuit in a previous case had identified several situations when it is likely that the probative value is not outweighed by the unfair prejudice. The circuit suggested this arose in cases concerning:

• 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. United States v. Alviar, 573 F.3d 526, 536 (7th Cir. 2009) (approving the admission of gang-related evidence to prove conspiracy allegations) 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 defendant King's case, all three situations seemed to arise. As explained by the circuit:

"although a large amount of gang-related evidence was admitted, there was a strong link between it and the crimes charged. The probative value of the evidence was high, as it helped establish the relationship among King, Zambrano, and Guajardo, the rank of those men within the gang, and King's criminal intent. More specifically, it was central to the government's theory that King and Zambrano, as leaders of the Latin Kings, could and did insure that the gang provided protection to Guajardo's drug trafficking operation, which they exchanged for drugs and money. Furthermore (and as we discuss later in more detail), without establishing King and Zambrano's positions in the gang and relationship to each other, King's incriminating statements regarding Zambrano's involvement in the conspiracy may have looked like a lot of hot air. "

King, __ F.3d at __ (emphasis added)

The circuit focused on three pieces of gang information that the defendant specifically objected to. These situations were:

1. the May 28, 2006, “violation” at Frankie & Johnny's bar "The May 28 violation, where King ordered a lower-ranking Latin King to be beaten for throwing a beer at Zambrano's wife, helped corroborate Guajardo's testimony that King was a high-ranking member of the gang, had a close relationship with Zambrano, and could deliver on his promise to provide protection for Guajardo. "
2. the June 1, 2006, “Crown Town” meeting " the June 1 meeting (the evidence of which was limited by the district judge), where King rebuked several Latin King officers who disobeyed his order to punish the member who threw the beer, demonstrated King's rank within the gang and his ability to follow through on his promise to Guajardo."
3. the November 21, 2006, conversation concerning the immigration (the “mica”) business. Unlike the first two, the circuit found that this conversation of November 21 was a "little different." As explained by the circuit: "There, King explained to Guajardo that Zambrano had financial problems and was unable to raise funds from his “immigration” business. We agree with King that the subject of illegal aliens, especially when combined with gang activity, is a sensitive one. But King's comments came in the context of his conversation with Guajardo about the insurance payment. More specifically, King was providing justification for Zambrano's requirement that the payment be made up front. The evidence therefore helped explain the manner of Guajardo's subsequent payments and King and Zambrano's financial motive to commit the crime. Although there was some other evidence on this point, the record does not indicate that it was overkill. Because the disputed evidence concerned the crimes charged and was not unduly prejudicial considering its high probative value, we conclude that the district judge did not abuse his discretion in admitting it."

King, __ F.3d at __

While the gang-related evidence in King was admissible, the circuit cautioned that as a general matter, "[g]ang-related evidence can be especially troublesome," given that they "generally arouse negative connotations and often invoke images of criminal activity and deviant behavior ... [g]uilt by association is a genuine concern whenever gang evidence is admitted.” King, __ F.3d at __ (quoting United States v. Montgomery, 390 F.3d 1013, 1018 (7th Cir. 2004)). But in the King case, the circuit's concluded its disposition was similar to other cases in which “[w]e have consistently held that, under appropriate circumstances, gang evidence has probative value warranting its admission over claims of prejudice.” King, __ F.3d at __ (quoting United States v. Irvin, 87 F.3d 860, 864 (7th Cir.1996).