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United States v. Kamahele

United States Court of Appeals, Tenth Circuit

April 8, 2014

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ERIC KAMAHELE, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
DANIEL MAUMAU, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
KEPA MAUMAU, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
SITAMIPA TOKI, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MATAIKA TUAI, Defendant-Appellant

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Appeals from the United States District Court for the District of Utah. (D.C. Nos. 2:08-CR-00758-TC-SA-1, 2:08-CR-00758-TC-SA-10 2:08-CR-00758-TC-SA-11, 2:08-CR-00758-TC-SA-14 and 2:08-CR-00758-TC-SA-2).

Diana Hagen Assistant United States Attorney (David B. Barlow, United States Attorney for the District of Utah, Salt Lake City, UT, on the brief) for Plaintiff-Appellee United States of America.

Julie George, Salt Lake City, UT, on the brief for Defendant-Appellant Eric Kamahele.

G. Fred Metos, McCaughey & Metos, Salt Lake City, UT, for Defendant-Appellant Daniel Maumau.

Gregory W. Stevens, Salt Lake City, UT, for Defendant-Appellant Kepa Maumau.

Richard P. Mauro, Salt Lake City, UT, for Defendant-Appellant Sitamipa Toki.

David V. Finlayson, Finlayson & Osburn, LLP, Salt Lake City, UT, for Defendant-Appellant Mataika Tuai.

Before TYMKOVICH, HOLMES, and BACHARACH, Circuit Judges.

OPINION

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BACHARACH, Circuit Judge.

Mr. Eric Kamahele, Mr. Daniel Maumau, Mr. Kepa Maumau,[1] Mr. Sitamipa Toki, and Mr. Mataika Tuai appeal their convictions arising from armed robberies and shootings in connection with the Tongan Crips Gang (" TCG" ) in Glendale, Utah. In a jury trial, Mr. Kamahele, Mr. Kepa Maumau, and Mr. Tuai were found guilty of conspiring to commit a racketeering offense under the Racketeer Influenced and Corrupt Organizations Act (" RICO" ), 18 U.S.C. § § 1961-1968 (2006). Mr. Eric Kamahele, Mr. Daniel Maumau, Mr. Kepa Maumau, and Mr. Sitamipa Toki were found guilty of committing violent crimes in aid of racketeering activity (" VICAR" ), 18 U.S.C. § 1959(a) (2006). Mr. Kamahele, Mr. Kepa Maumau, and Mr. Tuai were also found guilty of violating the Hobbs Act, 18 U.S.C. § 1951(a) (2006). And all were found guilty of violating 18 U.S.C. § 924(c) (2006), for using guns during their respective crimes.

All of the defendants contend the district court erred by: (1) admitting expert testimony by Mr. Break Merino about the TCG's history, structure, and activities, and (2) denying their motions for a judgment of acquittal under Federal Rule of Criminal Procedure 29 based on the Government's failure to prove various elements of RICO and VICAR.

Four defendants also raise individual claims:

o Mr. Daniel Maumau contends the district court erred in its instruction to the jury on VICAR, selecting the jury, and deciding the appropriate sentence.
o Mr. Tuai contends the district court erred in instructing the jury on RICO.
o Mr. Kepa Maumau argues the district court erred by admitting evidence of identification from a photo array that was unduly suggestive.
o Mr. Kamahele alleges prosecutorial misconduct.

Rejecting all of the Defendants' arguments, we affirm.

I. Factual Background

To address the Defendants' appeal points, we must understand the TCG's structure and history, as well as the underlying crimes that were alleged.

A. Tongan Crips Gang's Structure and History

The TCG is part of the Crips gang that began in California and made its way to the Tongan community in Glendale, Utah. The Glendale chapter of TCG organizes through " generations," which are roughly equivalent to high-school age groups. The gang is also loosely organized by " families,"

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which are signified by monikers such as " Loc," " Dog," and " Down."

Gang members are initiated into TCG by being " jumped in" (when the recruit fights gang members to prove his toughness) or " blessed in" (when the recruit has already proven himself as tough, either by being related to a TCG member or by his criminal reputation). Once initiated, gang members show their association with TCG through certain insignia. For example, members wear blue bandanas, solid-blue clothing, the number 104 (the last three digits of Glendale's zip code), and TCG tattoos (such as " Almighty T Gang" ). Gang members also make " T" and " C" hand signs.

The gang adheres to principles such as the values of toughness and loyalty. Gang members must maintain a tough reputation by fighting and committing crimes (called " putting in work" ). The gang values not only toughness, but also loyalty. Thus, TCG disapproves of " snitching" (giving information to police or rival gang members) and " hood jumping" (quitting TCG to become a member of another gang).

When the Utah gang formed in the 1990s, TCG members stole beer and fought. As time passed, TCG members continued to steal beer, but advanced to more serious ...


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