988 F.3d 1068
8th Cir.2021Background
- Flax was a member of the 1-9 Block Dipset Gang in Minneapolis, identified as a "shooter" who provided security and used firearms in gang rivalries; he also sold heroin occasionally.
- On August 5, 2017, Flax, while looking for rival "opps" near Club 200, engaged in a shootout that resulted in the death of Shane Webb.
- A grand jury indicted Flax on conspiracy to distribute heroin, conspiracy to possess firearms in furtherance of a drug trafficking crime (18 U.S.C. § 924(o)), and discharging a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)); Flax pleaded guilty to felon-in-possession-of-ammunition and proceeded to trial on the other counts.
- Government proof included surveillance/video evidence, testimony from cooperating witnesses (Gentle and Mack) who tied the gang to heroin distribution and described Flax’s shooter role, Officer testimony about Flax’s conduct that night, and Sergeant Tuma’s gang-expert testimony (she called the gang a "drug trafficking organization").
- The jury convicted Flax on all counts; the district court sentenced him to 220 months. On appeal Flax challenged sufficiency of evidence for each conviction and the admission of Sergeant Tuma’s statement that the gang was a drug trafficking organization.
Issues
| Issue | Flax's Argument | United States' Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for conspiracy to distribute heroin | Evidence was circumstantial and insufficient; no direct controlled buys, wiretaps, or gang members testifying against him | Circumstantial evidence, cooperating witnesses, and gang-membership proof sufficed to show agreement and Flax’s intentional participation | Conviction affirmed; evidence sufficient |
| Sufficiency of evidence for conspiracy to possess firearms in furtherance of drug trafficking | No proof of an agreement to use firearms to further drug operation specifically by Flax | Testimony showed gang used shooters to protect/advance drug operations and Flax acted in that role | Conviction affirmed; evidence sufficient |
| Sufficiency of evidence for discharging a firearm in furtherance of a drug trafficking crime (§924(c)) | Shooting may have been unrelated (e.g., self-defense); not shown to be "in relation to" drug conspiracy | Shooter role, timing, and gang structure show the shooting had at least potential to protect/intimidate and further the drug conspiracy | Conviction affirmed; evidence sufficient that firearm use was "in relation to" the drug crime |
| Admission of Sergeant Tuma’s testimony that the gang was a "drug trafficking organization" (expert opining on ultimate issue) | Testimony impermissibly opined on an ultimate issue and should have been excluded | Even if error, Tuma’s statement was cumulative of other admissible evidence and did not affect substantial rights | No reversible error under plain-error review; admission harmless because cumulative evidence supported gang’s drug activity |
Key Cases Cited
- United States v. Galloway, [citation="917 F.3d 631"] (8th Cir. 2019) (frame for viewing facts in light most favorable to verdict)
- United States v. King, [citation="898 F.3d 797"] (8th Cir. 2018) (standard for reviewing sufficiency of evidence)
- United States v. Myers, [citation="965 F.3d 933"] (8th Cir. 2020) (elements of drug conspiracy)
- United States v. Saddler, [citation="538 F.3d 879"] (8th Cir. 2008) (elements of a firearms-in-furtherance conspiracy)
- United States v. Boman, [citation="873 F.3d 1035"] (8th Cir. 2017) (§924(c) elements)
- Smith v. United States, [citation="508 U.S. 223"] (1993) (defining "in relation to" for §924(c))
- Bailey v. United States, [citation="516 U.S. 137"] (1995) (modifying aspects of Smith)
- United States v. Gipp, [citation="147 F.3d 680"] (8th Cir. 1998) (firearm use to intimidate customers can be "in relation to" drug trafficking)
- United States v. Baptiste, [citation="264 F.3d 578"] (5th Cir. 2001) (attacks in a gang conflict can be "in relation to" a drug conspiracy)
- United States v. Camps, [citation="32 F.3d 102"] (4th Cir. 1994) (similar conclusion regarding gang warfare and drug operations)