Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding D.C. No. CR-02-00938-DOC-2
The opinion of the court was delivered by: Rymer, Circuit Judge:
D.C. No. CR-02-00938-DOC-18
Argued and Submitted March 8, 2011-Pasadena, California
Before: Pamela Ann Rymer, Consuelo M. Callahan, and Sandra S. Ikuta, Circuit Judges.
Tyler Davis Bingham and Edgar Hevle are members of the Aryan Brotherhood prison gang and were convicted following trial by a jury of substantive violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1962(c), conspiracy to violate the RICO Act, 18 U.S.C. § 1962(d), the murders of Frank Joyner and Abdul Salaam as violent crimes in aid of racketeering (VICAR), 18 U.S.C. § 1959(a)(1), and the murder of Arva Lee Ray, 18 U.S.C. § 1111. Bingham and Hevle appeal their convictions, and we affirm.
The Aryan Brotherhood (AB) started as a California state prison gang and eventually spread to the federal system. AB members were incarcerated at the United States Prisons in Lompoc, California; Florence, Colorado; Marion, Illinois; Leavenworth, Kansas; and Lewisburg, Pennsylvania.
Through the 1980's, the AB had an informal structure of command. AB members elected a three-person Council with limited oversight capabilities, meant to act more as coordinators than leaders. The Council's main role was to "pass messages" and keep track of members, but over the years it got more authority to make decisions. Barry Byron Mills, Edgar Hevle, and Tommy Silverstein were on the first Council, with T.D. Bingham joining later.
In 1992-1993, the AB replaced the Council with a more powerful three-person Commission. The Council still existed, but now was appointed by and subordinate to the Commission. The Commission's written mission statement indicated that it sought to "transform [the AB] from a disfunctional [sic] prison gang into a viable and productive criminal organization inside prison and on the streets."
Mills, Bingham, and Al Benton were the three AB commissioners at the time of most of the events in this case. By majority vote, they could authorize any major decision for the AB, such as ordering a hit on an AB member or going to war against another prison gang. The Commission oversees the organization, the Council implements the Commission's programs, and lower level members carry out logistical tasks. At each prison, one member (preferably a Council member) is in charge of AB affairs and reports directly to the Commission.
The AB's two main goals are to control, dominate, and influence the prison system so that its members can have an "easy time" while incarcerated; and to operate criminal enterprises, such as computer fraud, identity theft, extortion, prostitution, gambling, and drug trafficking. The AB does not hesitate to kill its enemies (or even its own members if they disobey orders) to accomplish these goals. When the AB orders a murder, AB members are supposed to "like a piranha . . . come out and fight irregardless of whether it's bad odds or not."
For new members, the AB has a policy of "blood in, blood out": potential members must commit a murder to gain full membership, and can only leave when they die.*fn1 AB members also must support other AB "brothers," may not assault other brothers without permission, must split drug profits evenly, and may not cooperate with law enforcement. Violating any of these policies could get an AB member killed, though a kill order could only come from the AB Commission. Conversely, "[i]f someone assaulted an Aryan Brotherhood member, other Aryan Brotherhood members were supposed to kill them at any cost." Prisoners indicate their status as AB members through the use of symbols, such as an Irish shamrock, the letters AB, or the number 666.
Arva Ray was a member of the Aryan Brotherhood incarcerated at Lompoc. He openly maintained a homosexual relationship, mishandled drugs, and disrespected AB brothers - all against AB rules. Hevle disliked Ray and told Thomas Miller, who testified, that Ray's relationship "looked bad" for the AB.
The Commission ordered Phil Myers to organize Ray's murder. Myers promised Glenn Filkins, who was not yet a member, that he would gain full AB membership if he mur- dered Ray. The AB members at Lompoc, including Hevle, initially planned to kill Ray with rat poison, but decided against this after rat poison failed to kill another target, inmate Jeffrey Barnett. Instead, the AB decided to have Filkins kill Ray by injecting him with an overdose of heroin. When the AB delayed in killing Ray, Hevle sent a message asking what the holdup was.
Filkins and Miller carried out the murder on August 9, 1989. When Ray did not die immediately from the heroin, Filkins strangled him with a garrote wire while Miller held him down. After the murder, Filkins told Miller that he had been admitted to the AB and showed Miller a shamrock ring - made in the prison dental lab and commissioned by the AB - as evidence of his AB membership.
In a dispute over a drug debt, the Latin Kings prison gang attacked AB associate Red Lollar. In retaliation, Bingham ordered prospective AB member Steve Scott to attack Latin Kings member Ismael Benitez-Mendez at Leavenworth.
On January 4, 1992, Officer William Halpin saw BenitezMendez running away from a prisoner who was armed with a knife. The armed prisoner wore a watch cap, green fatigue shirt, and khaki pants. Halpin called for help as both inmates ran away.
Prison officers were able to locate both the weapon used in the assault and Benitez-Mendez, who had suffered knife wounds to his back and hand. While searching the surrounding cells, officers found inmate Ernest Martinez wearing blood-stained khaki pants; a green fatigue shirt lay nearby. Officers also found two blood-stained brown paper towels in the cell of Anthony Cruz and Edmund Gonzalez; Gonzalez had a cut on his finger. That evening, the officers placed the pants, shirt, and paper towels, along with other evidence, in a locker for storage.
On January 4, five Hispanic inmates, including Ernest Martinez, were placed in the hole,*fn2 pending an investigation. They were released back into the general population the next month. Meanwhile, prison officers decided on January 7 to place Bingham, Steve Scott, and two other prisoners in the hole. When the officers examined Scott, they discovered a fresh "666" tattoo on the left side of his chest.
After investigation, prison officials determined that the paper towels, pants, and shirt were unrelated to the attempted murder. On August ...