Submitted: May 18, 2016
from United States District Court for the District of
Minnesota - St. Paul
RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
COLLOTON, Circuit Judge.
convicted Anthony Cree, William Morris, and Wakinyan McArthur
of criminal offenses stemming from their involvement with the
Native Mob, a Minnesota prison and street gang. All three
appeal and argue that the district court erred as to the
sufficiency of the evidence, jury instructions, or
sentencing. We affirm in part, reverse in part, and remand
for further proceedings.
defendant challenges the sufficiency of the evidence in
support of his convictions, we recite the facts in the light
most favorable to the verdicts. United States v.
Paris, 816 F.3d 1037, 1038-39 (8th Cir. 2016). The
Native Mob is aprison and street gang that started in south
Minneapolis in the mid-1990s. The Mob developed a large
presence in Minnesota and now has over two hundred members in
the state. Its members participate in a variety of criminal
acts, including sales of controlled substances and assaults
on members of rival gangs. Through these activities, Mob
members seek to promote the gang's reputation and to
protect its members and territory.
December 2009, McArthur called for a Mob meeting. At the
meeting, Mob members elected anew group of leaders in the
gang's hierarchical structure. Kenneth Roberts was
elected War Chief, and Christopher Wuori was named Cass Lake
Representative. Members also agreed to hold monthly statewide
served as Chief of the Mob, the top leadership position, from
2010 until 2012. Under McArthur, members had easy access to
firearms. Members could request a firearm from another
member, or they could retrieve a firearm from one of several
Mob associates who stored the weapons. The Mob also placed a
premium on retaining firearms. At one meeting, McArthur
instructed Mob members to "cherish" firearm
ownership and to stop losing Mob weapons.
and Wuori also increased the Mob's drug trafficking
operations. The two men "pooled their money
together" to purchase cocaine and divided equally the
income derived from their drug sales. Wuori obtained cocaine
from suppliers, and then converted the cocaine into crack
cocaine. Wuori often completed the conversion process in a
residence that he and McArthur shared in Cass Lake,
Minnesota. Members frequented the house and assisted McArthur
and Wuori in obtaining, packaging, and storing the drugs.
McArthur and Wuori sold crack cocaine to several members, who
then resold the drugs to individuals throughout Minnesota.
McArthur's term as Chief, he often encouraged members to
harm rival gang leaders and others who posed a threat to the
gang, urging members to be willing to "go out and
shoot-'em up." At one of the Mob's meetings,
McArthur told members to attack an enemy of the Mob,
instructing one member to shoot at the enemy's residence.
McArthur also said that the Mob "need[ed] to whack"
the leader of an opposition gang, and that the leader's
death "would benefit us all."
LaDuke, a former associate of the Mob, was the victim of a
Mob attack. In early 2010, Mob members, including Wuori and
Cree, concluded that LaDuke "needed to be whacked."
Morris also participated in discussions about LaDuke, and
Wuori planned to give Morris a "gun ... in case he seen
Amos somewhere." On March 4, 2010, LaDuke was walking in
Cass Lake when a car, owned by Cree, approached. Cree,
Morris, and two other people were in the vehicle. Morris got
out of the car, carrying a firearm as LaDuke started to run
away. Morris fired several rounds toward LaDuke, striking
LaDuke three times before a former police officer drove his
truck between Morris and LaDuke and ended the encounter.
Morris fled the scene; authorities arrested him nearby
shortly thereafter. Cree and the others in the car drove away
during the shooting, and Cree was apprehended in an unrelated
incident later that month.
also went to great lengths to protect its drug distribution
territory. Of particular concern to the Mob was Lawrence
Daniels, a drug dealer who competed against the gang for
control of the Cass Lake drug trade. Starting in May 2010,
Mob members talked about harming Daniels in hopes of removing
him from their territory. During one conversation, McArthur
and Wuori told Mob members Roberts, Emilio Bunker, Jeremee
Kraskey, Cory Oquist, and Pedro Sayers that they wanted to
find Daniels and "eliminate him by any means."
McArthur and Wuori decided to send members to "get...
information out" of a known associate of Daniels about
Daniels's whereabouts; from that excursion Mob members
determined that Daniels was living in Bemidji, Minnesota.
after learning Daniels's location, McArthur and other
members, including Wuori, Bunker, Kraskey, and Roberts,
discussed "going to Bemidji... and shooting"
Daniels. On August 21, 2010, Wuori drove Bunker, Oquist, and
Sayers to Bemidji, where the three men shot into a home where
they believed Daniels lived. They realized soon after,
however, that Daniels had no connection to the residence. In
the presence of McArthur and Roberts, the four members
recounted their error. Days later, on August 24, some of the
same members made a second attempt on Daniels, shooting at
the Raisch residence where Daniels was staying.
continued to pursue Daniels. At the request of McArthur and
Wuori, Mob member Dale Pindegayosh agreed to participate in a
home invasion to intimidate Daniels. On March 28, 2011,
Pindegayosh and three other members, armed with firearms,
broke into the home of Daniels's father-in-law, John
Wilke. Approximately two months later, McArthur and Wuori
requested that Pindegayosh rob the Wilke home. Pindegayosh
opted not to complete the crime, and that was the last
evidence concerning Mob activity toward Daniels.
and state authorities began investigating the Native Mob as
early as 2004. The investigation expanded after the LaDuke
shooting. During the investigation, members-turned-informants
wore recording devices to four Mob meetings in 2010 and 2011.
Law enforcement officers conducted surveillance of several
Mob members and installed GPS devices on vehicles used by
January 2012, a grand jury charged Cree, Morris, McArthur,
and others in a multicount indictment. Cree, Morris, and
McArthur proceeded to trial. After a six-week trial, which
included testimony from victims of Mob attacks, former Mob
members, and investigators, a jury convicted the men of
several charges. After the trial, the district court denied
the defendants' motions for judgments of acquittal or, in
the alternative, new trials.
was convicted of conspiracy to participate in racketeering
activity, see 18 U.S.C. § 1962(d), and
conspiracy to distribute and possess with intent to
distribute controlled substances. See 21 U.S.C.
§§ 841(a), (b), 846. He also was convicted of four
counts related to his involvement in the LaDuke shooting:
conspiracy to use and carry firearms during and in relation
to a crime of violence, see 18 U.S.C. § 924(g),
attempted murder in aid of racketeering, see id.
§§ 1959(a)(5), 2, assault with a dangerous weapon
in aid of racketeering, see id. §§
1959(a)(3), 2, and use and carrying of a firearm during and
in relation to a crime of violence. See id.
§§ 924(c), 2. The district court sentenced Cree to
292 months' imprisonment.
convictions stemmed from the LaDuke shooting. He was
convicted of attempted murder in aid of racketeering, assault
with a dangerous weapon in aid of racketeering, use and
carrying of a firearm during and in relation to a crime of
violence, and possession of a firearm as a previously
convicted felon. See id. § 922(g). Over
Morris's objection, the district court at sentencing
ruled that Morris's three prior Minnesota third-degree
burglary convictions constituted "violent felonies"
for purposes of the Armed Career Criminal Act. See
id. § 924(e). Because the court found that Morris
had at least three previous convictions for violent felonies,
he was subject to a mandatory minimum 180-month sentence and
a maximum of life on his conviction for possession of a
firearm as a previously convicted felon, Count 6. See
id. The court sentenced Morris to 360 months'
imprisonment on that count and to 420 months'
was convicted of conspiracy to participate in racketeering
activity, conspiracy to use and carry firearms during and in
relation to a crime of violence, conspiracy to distribute and
possess with intent to distribute controlled substances, and
distribution of a controlled substance. See 21
U.S.C. § 841(a), (b); 18U.S.C. §2. He also was
convicted of two counts of use and carrying of a firearm
during and in relation to a crime of violence. See
18 U.S.C. §§ 924(c), 2. The first § 924(c)
conviction, Count 10, was based on McArthur's involvement
in the shooting at the Raisch home, and the district court
sentenced him to a mandatory 60-month term on that charge.
Id. § 924(c)(1). The second § 924(c)
conviction, Count 11, related to ...