Sixth Circuit considers the circumstances in which gang affiliation evidence may be admitted; based on the charges and facts, the circuit concludes that the evidence was admissible to "demonstrate the relationship amongst the co-conspirators" under FRE 401, and was not unfairly prejudicial under FRE 403, in United States v. Ford, _ F.3d _ (6th Cir. Aug. 5, 2014) (Nos. 11-2200, 11-1926, 11-1917, 11-2015)
In admitting gang affiliation evidence, serious questions about the prejudicial nature and relevance of the evidence typically must be surmounted under FRE 401 and FRE 403. The Sixth Circuit recently noted this issue.
Trial Court Proceedings: Denying Motion To Exclude Gang Affiliation Evidence
Co-defendants Ford and Perdue were charged with Hobbs Act and firearm counts based on their role in participating in a series of robberies. Before trial, the defendants moved to exclude evidence of their gang affiliation as irrelevant under FRE 401 or unfairly prejudicial under FRE 403. The trial court denied the motion to exclude this evidence. At trial the following evidence was introduced concerning gang affiliation:
FBI Special Agent Thomas Plantz (“Plantz”) testified that Perdue displayed hand signals that represent the Four-Corner Hustlers, a branch of the Vice Lords; wore clothing and oriented his hat in a manner symbolic of the Vice Lords; and has a tattoo on his face with the Vice Lords symbol of a five-pointed star. [Cooperating witness] Nathan testified to his and Henry’s involvement with the Vice Lords gang. [Cooperating witness] Payne testified that the gang was about “[g]etting what we needed. You know, we needed money. We were going to get it however we had to get it, period,” and that one of the ways of getting money was committing robberies. [Cooperating witness] Henry testified that he had been a Vice Lord for multiple years; that Ford was formerly a member of the Bloods but became a Vice Lord after he learned about the gang from people at the Fallen Angels studio; and that Perdue was a member of the Four-Corner Hustlers. [Cooperating witness] Kirby testified that Perdue was a gang member and that Perdue’s “4CH” tattoos stand for Four-Corner Hustlers.
Ford, _ F.3d at _, n.8 (trial transcript citations omitted). Following their jury trial convictions, on appeal the defendants claimed the admission of this evidence was reversible error.
Sixth Circuit Review: Probative Of The Conspirators' Relationship
Initially, the Sixth Circuit noted the circumstances when gang affiliation may be admissible and inadmissible. The circuit stated that gang affiliation evidence "is relevant where it demonstrates the relationship between people and that relationship is an issue in the case, such as in a conspiracy case." Ford, _ F.3d at _ (citing United States v. Williams, 158 F. App’x 651, 653–34 (6th Cir. 2005); United States v. Gibbs, 182 F.3d 408, 429-30 (6th Cir. 1999)). This evidence “is inadmissible if there is no connection between the gang evidence and the charged offense.” Ford, _ F.3d at _ (citing United States v. Anderson, 333 F. App’x 17, 24 (6th Cir. 2009); see also United States v. Newsom, 452 F.3d 593, 602–04 (6th Cir. 2006) (holding that evidence of a gang tattoo was not relevant when the sole charge was being a felon in possession of a firearm)).
The Sixth Circuit concluded the evidence was admissible and not unfairly prejudicial. As the circuit explained:
The evidence of gang affiliation is relevant because it demonstrates the relationship amongst the co-conspirators. Specifically, the evidence furthered the Government’s theory that the co-conspirators were a distinct subset of the many people involved in the Fallen Angels record label and that the bond between the subset was their involvement in the Vice Lords. The probative value of the testimony that Ford and Perdue were involved in the Vice Lords was not outweighed by the danger of unfair prejudice.
Ford, _ F.3d at _.
The Ford case provides a recent example in which gang affiliation evidence was admissible based on the conspiracy charged. Consider other blog posts reviewing this issue.
For two other evidence issues covered in the Ford case, see Barring Exculpatory Party Statements; Circuit Split: Whether Denial Of A Severance Motion Preserves A Later Bruton Challenge?
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