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In December of 1996, at Lewisburg, the DC Blacks prison gang killed a white inmate. After this murder, Hevle gave a message to Dewey Lee, a prisoner transferring from Lewisburg to Marion, “to tell either Dave Sahakian or Michael McElhiney, specifically, nobody else, that they’d been having racial problems at USP Lewisburg and to get ready.”
Lee understood the phrase “to get ready” to mean start making knives and organizing the Aryan Brotherhood members. Lee delivered the message sometime after January 2, 1997.
On January 2, 1997, about a dozen members of the DC Blacks attacked six white inmates at Marion. The Aryan Brotherhood members at Marion met and decided to “move on” and “kill whatever DC Blacks and associates we could.” Michael Wagner, an Aryan Brotherhood member, was transferred by prison officials from Marion to the supermax prison at Florence to prevent Wagner from assaulting any DC Blacks. When transferred, Wagner delivered several messages to commissioner Mills, including a message that “there was a war” at Marion.
Bingham claims that there is insufficient evidence to convict him of the murders of Joyner and Salaam because his message to Benton telling him there was “War with the DC Blacks” could only be understood as a warning. In support, Bingham points to evidence that Lewisburg was a dangerous place for Aryan Brotherhood members and he was just trying to alert Benton to this fact; that his message to Lewisburg, on August 14, came before his confirmation to Mills on August 17; that the cover text of his letter to Mills had no independent significance; that Benton’s phone conversations with Slocum show Benton’s misunderstanding of Bingham’s message; that no DC Blacks outside of Lewisburg were murdered; and that the message to Roach was a warning because it included the phrase “prepare and hold.”
Bingham further submits that there is insufficient evidence to support his convictions as an accomplice to the murders of Frank Joyner and Abdul Salaam, and the attempted murder of Byron Ball. However, as we have explained, there was evidence from which the jury could rationally find that Bingham sent an order to go to war with the DC Blacks that resulted in Aryan Brotherhood members’ attacks on Joyner, Salaam, and Ball.
Similarly, we have held that mere gang membership cannot itself prove that an individual has entered a criminal agreement to attack members of rival gangs. But in Garcia, unlike this case, the government failed to prove the existence of an agreement among the defendant and Bloods gang members to shoot members of the Crips gang. Accordingly, the “general practice of supporting one another in fights” was insufficient to show that Garcia and his fellow Bloods conspired to assault rival gang members with deadly weapons.
United States of America, Plaintiff-Appellee, v. T. D. Bingham, aka Seal B; Bull; Tyler Davis Bingham; the Hulk, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Edgar Wesley Hevle, aka Seal R; Snail, Defendant-Appellant. United States Court of Appeals for the Ninth Circuit. Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding. Argued and Submitted March 8, 2011, Pasadena, California. Filed August 4, 2011
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