Law School Case Brief
United States v. Bingham - 653 F.3d 983 (9th Cir. 2011)
Under Pinkerton, a defendant would be guilty if (1) he were a member of a conspiracy at the time of murders, (2) and another member of the conspiracy (3) killed the victims (4) in furtherance of the conspiracy, (5) and the murders fell within the scope of the unlawful agreement and could reasonably have been foreseen to be a necessary or natural consequence of the conspiracy.
Defendants Tyler Davis Bingham and Edgar Hevle are members of the Aryan Brotherhood (AB) prison gang and were convicted following trial by a jury of substantive violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, conspiracy to violate the RICO Act, the murders of Frank Joyner and Abdul Salaam as violent crimes in aid of racketeering (VICAR), and the murder of Arva Lee Ray. Defendants appeal their convictions and sentences.
In 1997, AB members murdered two other inmates and stabbed a third inmate. Five years later, a grand jury returned a ten-count indictment that charged 40 defendants with committing RICO crimes as part of their involvement with the AB. Defendant Bingham was charged with a substantive RICO offense (Count 1), a RICO conspiracy offense (Count 2), conspiring and aiding-and-abetting in the VICAR murders (Counts 6 and 7), the murder of Ray (Count 9), and the murder of yet another inmate (Count 10). Defendant Hevle was charged with a RICO conspiracy offense (Count 2), conspiring and aiding-and-abetting in the VICAR murders (Counts 6 and 7) as well as the murder of Ray (Count 9).
In a special verdict, the jury found that Bingham was guilty of all racketeering acts alleged against him, except for the conspiracy and murder of one inmate. The jury also found that Bingham had agreed to at least one act involving murder and one act involving drug trafficking to support his RICO conspiracy conviction. The jury convicted Hevle of all charges against him and, to support the RICO conspiracy conviction, found that Hevle had agreed to two acts involving murder. Hevle renewed a motion to dismiss all charges against him for insufficiency of the evidence. The district court granted it in part as to the VICAR murders, reasoning that Hevle could not be convicted on an aiding-and-abetting theory because the intervening facts between Hevle's message telling the out-of-state AB prison members "to get ready" rendered the murders too remote to be considered within the natural and probable consequences of Hevle's having sent the message. However, the district court declined to dismiss these murder charges in their entirety, for it concluded that Hevle could be convicted on a Pinkerton theory of liability. Pinkerton v. United States 328 U.S. 640, 646-48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946). Both defendants were sentenced to life in prison.
Was there sufficient evidence to support the VICAR convictions?
Under Pinkerton, Hevle would be guilty if (1) he were a member of the conspiracy at the time of the murders, (2) and another member of the conspiracy (3) killed two inmates (4) in furtherance of the conspiracy, (5) and the murders fell within the scope of the unlawful agreement and "could reasonably have been foreseen to be a necessary or natural consequence" of the conspiracy.
The crimes involved members of a prison gang. The court held that there was sufficient evidence to support the VICAR convictions against one defendant because a rational juror could have found that defendant took steps to aid and abet the murders, including a message telling another member to go to war with a rival gang. Therefore, Hevle's conviction was proper because a rational juror could find that an attempted murder before the restructure of the gang and a murder that occurred after the restructure were related in purpose, result, participants, and methods of commission. Any restructuring of the gang's corporate structure in the interim did not modify the gang's existence or its purpose. Defendant's due process rights were not violated based on prison officials destroying evidence because there was comparable evidence. There was no evidence to support the allegation that the government intentionally used perjured testimony against Hevle. As to the Bingham, none of the testimony against him was inherently improbable, and there was sufficient evidence that he was liable as a Pinkerton co-conspirator for the VICAR murders.
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