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United States v. Henley

United States Court of Appeals, Eighth Circuit

September 10, 2014

United States of America, Plaintiff - Appellee
v.
Dominic Henley, also known as Bishop, Defendant - Appellant; United States of America, Plaintiff - Appellee
v.
James C. Smith, also known as Animal, Defendant - Appellant; United States of America, Plaintiff - Appellee
v.
Jerry Elkins, Defendant - Appellant; United States of America, Plaintiff - Appellee
v.
Marshall Fry, also known as Bo, also known as Big Bo, Defendant - Appellant; United States of America, Plaintiff - Appellee
v.
Anthony Robinson, also known as Blade, Defendant - Appellant; United States of America, Plaintiff - Appellee
v.
Jerry Peteet, Defendant - Appellant

Submitted June 11, 2014.

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Appeal from United States District Court for the Eastern District of Missouri - St. Louis.

For United States of America, Plaintiff - Appellee (13-1894): James C. Delworth, Assistant U.S. Attorney, Jennifer Winfield, Assistant U.S. Attorney, Sirena Miller Wissler, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Missouri, Saint Louis, MO.

Dominic Henley, also known as: Bishop, Defendant - Appellant (13-1894), Pro se, Saint Louis, MO.

For Dominic Henley, also known as: Bishop, Defendant - Appellant (13-1894): Donnell Smith, Donnell Smith & Associates, Saint Louis, MO.

For United States of America, Plaintiff - Appellee (13-1935): Sirena Miller Wissler, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Missouri, Saint Louis, MO.

For James C. Smith, also known as: Animal, Defendant - Appellant (13-1935): Christopher A. Pickett, Greensfelder & Hemker, Saint Louis, MO.

James C. Smith, also known as: Animal, Defendant - Appellant (13-1935), Pro se, Butner, NC.

For United States of America, Plaintiff - Appellee (13-1941): James C. Delworth, Assistant U.S. Attorney, Jennifer Winfield, Assistant U.S. Attorney, Sirena Miller Wissler, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Missouri, Saint Louis, MO.

Jerry Elkins, Defendant - Appellant (13-1941), Pro se, Florence, CO.

For Jerry Elkins, Defendant - Appellant (13-1941): Ronald Eugene Jenkins, Jenkins & Kling, Saint Louis, MO.

For United States of America, Plaintiff - Appellee (13-1967): James C. Delworth, Assistant U.S. Attorney, Jennifer Winfield, Assistant U.S. Attorney, Sirena Miller Wissler, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Missouri, Saint Louis, MO.

Marshall Fry, also known as: Bo, also known as: Big Bo, Defendant - Appellant (13-1967), Pro se, Bruceton Mills, WV.

For Marshall Fry, also known as: Bo, also known as: Big Bo, Defendant - Appellant (13-1967): John Michael Lynch, John M. Lynch Law Offices, Saint Louis, MO.

For United States of America, Plaintiff - Appellee (13-1969): James C. Delworth, Assistant U.S. Attorney, Jennifer Winfield, Assistant U.S. Attorney, Sirena Miller Wissler, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Missouri, Saint Louis, MO.

Anthony Robinson, also known as: Blade, Defendant - Appellant (13-1969), Pro se, Jonesville, VA.

For Anthony Robinson, also known as: Blade, Defendant - Appellant (13-1969): Douglas P. Roller, Roller Law Firm, Saint Louis, MO.

For United States of America, Plaintiff - Appellee (13-1971): James C. Delworth, Assistant U.S. Attorney, Jennifer Winfield, Assistant U.S. Attorney, Sirena Miller Wissler, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Missouri, Saint Louis, MO.

Jerry Peteet, also known as: Angel, Defendant - Appellant (13-1971), Pro se, Ayer, MA.

For Jerry Peteet, also known as: Angel, Defendant - Appellant (13-1971): David Earl Woods, O'Fallon, MO.

Before MURPHY, COLLOTON, and KELLY, Circuit Judges.

OPINION

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MURPHY, Circuit Judge.

Defendants Dominic Henley, James C. Smith, Jerry Elkins, Marshall Fry, Anthony Robinson, and Jerry Peteet were charged with racketeering conspiracy, and various counts of violent crime in aid of racketeering in connection with their involvement with the Wheels of Soul, an outlaw motorcycle gang. Each man pled not guilty. As the case proceeded to trial, a number of the defendants filed motions to suppress evidence obtained through electronic surveillance during a lengthy government investigation. After evidentiary hearings, a magistrate judge[1] issued a report and recommendation denying the motions, which was adopted by the district court.[2] At the thirty five day jury trial over sixty witnesses testified. The government sought to prove that the defendants had conspired to murder members of rival motorcycle clubs. During trial the district court denied various evidentiary motions and motions for judgments of acquittal. After eight days of deliberation the jury returned guilty verdicts on the racketeering conspiracy charges for each defendant, and on many of the substantive charges, and the defendants appeal. We affirm.

I.

A.

Near the end of 2008 Andria Van Mierlo, a St. Louis County police officer and member of an FBI task force, sought information about a St. Louis motorcycle club known as the Sin City Disciples (alternatively " Desciples" or " Deciples" ). A defense lawyer who learned of her interest in the organization introduced her to Matthew Hunter, one of his clients. Hunter had been charged with evading arrest after he attempted to flee from the police on a motorcycle. While he was not a member of the Sin City Disciples, he was familiar with the group through some acquaintances. Officer Van Mierlo met with him and offered to pay him to serve as an informant in the government's investigation of the Disciples. He agreed after some deliberation. At the direction of officer Van Mierlo, Matthew Hunter joined the St. Louis chapter of the Sin City Titans, a group affiliated with the Disciples.

In early 2009 a dispute arose in the national Sin City organization and five St. Louis members of the motorcycle club, including Matthew Hunter, left it and formed a St. Louis chapter of a rival group called the Wheels of Soul. The Wheels of Soul is a longstanding " outlaw motorcycle club" with headquarters in Philadelphia,

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Pennsylvania and chapters throughout the country. Its members explained at trial that as an " outlaw" club, they " live[d] beyond the law" and sought to assert control over other motorcycle clubs within the same geographic area.

The Wheels of Soul has a national structure organized around regional and local chapters. The newly formed St. Louis chapter became a part of the Midwest region, which included chapters in Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. Each local chapter of the Wheels of Soul held regular meetings in addition to occasional regional and national meetings. Some chapters also maintained a local clubhouse. Individual members were expected to pay monthly dues which covered local expenses and also supported the " mother chapter" or national office.

The Wheels of Soul had a written constitution that provided for the election of national officers, including a president, vice president, sergeant at arms, secretary, and treasurer. Similar positions existed at the local and regional level. Local and regional presidents were responsible for leading meetings, determining dues and fines, and communicating with the " mother chapter" in Philadelphia. The sergeant at arms was responsible for protecting the chapter president, keeping order at meetings, securing the group's clubhouse space, and " mak[ing] sure out in public that the chapter members were safe." The treasurer was responsible for managing dues, and the secretary kept notes at meetings. Some chapters also had a business manager who was responsible for organizing parties to raise funds.

The Wheels of Soul constitution specified that the object of the organization was " to inform, to ride motorcycles, and to advance the interest of [its] members." The national leadership emphasized secrecy and loyalty, stating that " Wheels of Soul business is not spoken outside Wheels of Soul membership," and reminding its members that people involved with other motorcycle clubs should be considered " your enemy." Officers could discipline members for violations of the organization's internal rules and customs, such as insubordination or absence at required meetings or events. Members could also be disciplined for failure to support each other in dangerous situations. At one meeting the national vice president, defendant James C. Smith, alluded to the consequences of failing to provide support by stating, " [w]e will bleed for you, we will die for you, but I can tell you point blank . . . [i]f I'm out there and I got a motherfucking situation and you leave me, you better hope to God that I don't survive."

Members of the Wheels of Soul distinguished themselves from rival outlaw clubs such as the Sin City Disciples, Hell's Lovers, and Outkasts by wearing vests embellished with identifying patches. These were referred to as the club's " colors," and such patches carried special significance in the motorcycle club community. For example, a " bottom rocker" patch identified a specific geographic territory and a " diamond" or " one percent" patch showed that the group was an outlaw club at " the top of the food chain." Such patches could only be worn by the outlaw club in control of the relevant area and by members who met certain qualifications. Breaching these rules could have consequences. For example, wearing a " bottom rocker" without the permission of the leading " outlaw club" in the state was considered a sign of disrespect. Disputes over the wearing of these patches often resulted in physical violence.

The government's investigation of the Wheels of Soul spanned several years, and Matthew Hunter's cooperation was central to it. As part of his agreement with officer

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Van Mierlo, Matthew Hunter agreed to wear concealed electronic devices that could surreptitiously record his conversations with other individuals and to the monitoring and recording of his telephone conversations. These recordings were downloaded and maintained by FBI personnel over the course of the investigation. During the course of his cooperation Matthew Hunter also participated in several controlled purchases of weapons and drugs, purchases which were monitored and recorded by FBI personnel.

As the investigation progressed, the government also sought to intercept the phone calls of the Midwest regional president, Allan Hunter.[3] On January 10, 2011, Judge Henry E. Autrey of the Eastern District of Missouri authorized the government to place a wiretap on a cellphone used by Allan Hunter. Judges Audrey G. Fleissig and E. Richard Webber of the Eastern District of Missouri also issued orders authorizing the continued interception of calls (orders entered February 9, 2011 and March 10, 2011). These interceptions ceased on Friday, April 8, 2011, and Judge Jean C. Hamilton sealed the wiretap on Thursday, April 14, 2011.

The government's investigation led to an indictment on June 9, 2011 charging eighteen defendants. A superseding indictment was returned on June 21, 2012 against eleven defendants (after some of the original defendants pled guilty and several others were added). Among the defendants named in the superseding indictment were: James C. Smith, the national vice president; Dominic Henley, the president of the St. Louis chapter; Jerry Elkins, the president of the Denver chapter; Marshall Fry, a member of the Denver chapter; Anthony Robinson, the sergeant at arms of the Chicago chapter; and Jerry Peteet, the president of the Indiana chapter. The superseding indictment charged seventeen counts including racketeering conspiracy and other offenses which allegedly demonstrated a " pattern of racketeering activity," including murder, attempted murder, robbery, and conspiracy to commit murder.

Before trial defendants Henley, Smith, Elkins, and Robinson each filed a motion to suppress the contents of the electronic surveillance, including but not limited to conversations obtained through the judicially authorized wiretap of the cellphone used by Allan Hunter. The magistrate judge held a hearing on these motions on April 5, 2012, and issued a report and recommendation denying each of them on September 28, 2012. After reviewing the briefs, the transcript of the hearing, the original wiretap applications, and the defendants' objections, the district court adopted the magistrate judge's report and recommendation and denied the motions to suppress. In addition to ruling on many other pretrial motions, the district court denied defendant Smith's motion to sever his case and defendant Robinson's motion in limine to exclude evidence of an uncharged murder in November 2009. The district court also granted the government's motion in limine to exclude an affidavit from a man named Barry Rogers, which defendant Peteet wanted to admit in lieu of Rogers' live testimony.

The case proceeded to trial on October 15, 2012. Over the course of the thirty five day trial the government presented evidence of numerous acts of violence involving the defendants. Incidents relevant to this appeal are described in the next sections.

B.

On May 28, 2009, a Sin City Disciples member named Robert ...


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