United States v. Darren Frank , 336 F. App'x 581 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3836
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
Western District of Missouri.
Darren Frank, *
* [UNPUBLISHED]
Defendant - Appellant. *
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Submitted: June 9, 2009
Filed: July 14, 2009
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Before BYE, HANSEN, and BENTON, Circuit Judges.
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PER CURIAM.
Darren Frank was convicted by a jury of: (1) aiding and abetting the
intentional killing of Douglas C. Weil while engaged in the manufacture and
distribution of more than 50 grams of methamphetamine in violation of 21 U.S.C.
§ 848; (2) aiding and abetting the intentional killing of Douglas C. Weil while
possessing a firearm in relation to a drug trafficking offense in violation of 18 U.S.C.
§ 924; and (3) aiding and abetting the intentional killing of Douglas C. Weil, a
potential federal witness, in violation of 18 U.S.C. § 1512. The district court1
sentenced Frank to concurrent terms of life imprisonment. On appeal, he challenges
various aspects of his trial. We affirm.
I
From at least January 1, 1996 until his arrest on September 21, 1999, John
Philip Street manufactured and sold substantial quantities of methamphetamine
throughout the Kansas City, Missouri, area. Frank supplied Street with precursor
chemicals used to manufacture methamphetamine and also served as his "enforcer."
On October 22, 1997, at Street's request, John Haidusek and Douglas Weil
were transporting a stolen skid loader when they were arrested in Blue Springs,
Missouri. Police recovered from their vehicle a nine-millimeter handgun along with
coolers and trash bags that the police associated with the manufacture of
methamphetamine. Weil and Haidusek were released without being charged or
posting bond. Under the government's theory of the case, Street decided to murder
Weil because he was afraid Weil would connect him to the stolen skid loader and
manufacturing methamphetamine.
Weil was last seen by his wife, Tammie Simsheuser (formerly Tammie Weil),
on January 19, 1998. About two weeks later, she learned from either Street or Dale
Yeager that the car Weil had been driving, a Dodge Aries owned by Street's father,
was found parked in the Stadium Inn parking lot located on Highway 40 in
Independence, Missouri. Simsheuser notified the Independence police, who
examined the vehicle from the outside and found nothing suspicious. Several days
later, the police again examined the vehicle, which had been moved, this time
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
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discovering Weil's shoeless body inside its trunk. An autopsy revealed that Weil had
suffered two gunshot wounds and was stabbed many times.
In September 1999, Street was charged with methamphetamine and firearm
offenses, but not charged with Weil's murder. He pleaded guilty to the charges, and
was sentenced to 180 months' imprisonment. Later, on September 10, 2004, Street
was indicted on charges relating to Weil's murder.
Frank was called as a witness in Street's first murder trial. He denied being
offered money by Street to kill Weil, but did admit that Street offered him $5,000 to
find a dead man's missing boots. The jury in the first Street trial was unable to reach
a verdict, and the district court declared a mistrial.
On September 13, 2006, the government amended the indictment to include
Frank as a co-defendant. Frank and Street were charged with: (1) aiding and abetting
the intentional killing of Weil while engaged in the manufacture and distribution of
more than 50 grams of methamphetamine in violation of 21 U.S.C. § 848 (Count
One); (2) aiding and abetting the intentional killing of Weil while possessing a
firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924 (Count
Two); and (3) aiding and abetting the intentional killing of Weil, a potential federal
witness, in violation of 18 U.S.C. § 1512 (Count Three). Before trial, the district
court granted Street's motion to sever.
On re-trial, Street was only found guilty on Count One. Due to evidentiary
errors, this Court remanded Street's case for a new trial. United States v. Street, 548
F.3d 618 (8th Cir. 2008). Street is currently awaiting re-trial.
Frank was found guilty on all three counts. At trial, the government presented
testimony from several cooperating witnesses. Eva Long testified she overheard
Street offer Frank $5,000 to kill Weil. Jack Fruean testified Frank admitted to the
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murder and that the reason for it was because Weil was informing on him and Street
to the police. Kerrie Mick testified he heard Frank and Scotty Nabors bragging about
killing Weil. Wyvon Poston and Ryan Poston testified Frank admitted his
involvement in the murder.
In addition, Detective Jeff Seever testified as an expert witness on motorcycle
gangs, specifically the El Forasteros motorcycle gang. Seever explained members
label their gang as a "1 percenter organization," meaning "they choose to be the 1
percent of the rest of the world that does not follow the law set down by man." Their
philosophy includes a disdain for government informants, whom they refer to as
"snitches." As demonstrated by their slogan often placed on t-shirts, "snitches get
stitches for being punk bitches," El Forasteros members believe snitches are to be met
with violence. There was also testimony that Frank was a former member of the El
Forasteros, and that he had adopted their view of snitches. The government asserted
at trial that it was Frank's disdain of snitches that motivated him to murder Weil.
The government also offered and the district court admitted photographs of a
large number of firearms that belonged to Street but were recovered by the police
from the home of Darrell Hein sixteen months after Weil's death.
As stated above, Frank was found guilty on all counts, and was sentenced to
life imprisonment. On appeal, Frank asserts the district court committed two
evidentiary errors, the evidence at trial materially varied from the indictment, and
there was insufficient evidence to convict him.
II
Frank asserts the district court erred by: (1) allowing testimony as to the El
Forasteros motorcycle gang; and (2) admitting into evidence the firearms police found
in the possession of Darrell Hein. "[W]e review the admission of this evidence for
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abuse of discretion and 'reverse a conviction only when an improper evidentiary
ruling affected the defendant's substantial rights or had more than a slight influence
on the verdict.'" United States v. Wright, 540 F.3d 833, 843 (8th Cir. 2008) (quoting
United States v. Shields, 497 F.3d 789, 792 (8th Cir. 2007)).
A. El Forasteros Evidence
The primary case Frank relies on to argue the district court erroneously
admitted evidence pertaining to the El Forasteros motorcycle gang is United States
v. Street, in which this Court held it was error to admit similar evidence during
Street's trial. 548 F.3d 618, 633 (8th Cir. 2008).
Street, however, is distinguishable for two reasons. First, the main purpose of
the El Forasteros evidence introduced at Street's trial was "to illustrate the violent,
lawless propensities of outlaw motorcycle gangs." Id. at 629. After discussing the
testimony in depth,2 the Court found its "net effect" was "to locate El Forasteros
within a tradition of misogynistic, hardened outlaws." Id. at 631. In contrast, the El
Forasteros evidence introduced at Frank's trial was sharply limited, focusing mainly
on their view of "snitches." Second, the Street court found significant that Street did
not have any serious ties to El Forasteros. Frank, on the other hand, was a former
2
The Court summarized:
[The government's witness] testified to incidents of violence from as
long ago as 1947 and from as far afield as Las Vegas, Nevada, and
Hollister, California. He described arcane insignia and painful tattoos
intended to set gang members apart from the rest of civilized society.
He recounted nauseous and brutal initiation procedures. He made
repeated references to shootings, assaults, and theft. He explained the
general contempt gang members displayed towards women.
Id. at 631.
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member of the motorcycle gang, and there was testimony indicating Frank had
adopted its view of snitches.
These distinguishing factors render the El Forasteros testimony relevant and
not overly prejudicial. As such, the district court did not abuse its discretion by
admitting it.
B. Firearms Evidence
As this Court noted in Street, although the weapons were discovered well after
the murder of Weil, "[s]ince the weapons admittedly belonged to Street, they might
still be relevant even though discovered at a time and place remote from him and his
methamphetamine operation" because "[a] jury might draw the reasonable inference
that the guns were acquired for the purpose of protecting or funding Street's drug
activities." 548 F.3d at 626; see also id. ("Firearms are routinely allowed into
evidence as 'tools of the trade' in drug trafficking cases."). Because the government
established Frank participated in Street's drug operation and such operation was
ongoing at the time the weapons were seized, they are thus equally admissible against
Frank. See United States v. Ball, 499 F.3d 890, 897 (8th Cir. 2007), reversed on
other grounds 129 S. Ct. 2049 (2009).
The district court thus did not abuse its discretion by admitting the photographs
of the firearms.
III
Frank also asserts the facts adduced at trial erroneously varied from the
indictment. "A variance arises when the evidence presented proves facts that are
materially different from those alleged in the indictment." United States v.
Whirlwind Soldier, 499 F.3d 862, 870 (8th Cir. 2007). "In determining whether a
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variance exists, we consider the totality of the circumstances, including the nature of
the activities, the location and time frame in which the activities were performed, and
the participants involved." United States v. Abfalter, 340 F.3d 646, 650 (8th Cir.
2003). "Reversal is warranted only if the variance prejudiced the defendant's
substantial rights." United States v. Buckley, 525 F.3d 629, 633 (8th Cir. 2008).
Frank argues the evidence proved he engaged in multiple conspiracies to
murder Weil, rather than the single conspiracy (with Street) charged in the indictment.
This argument is misplaced. First, Frank was charged with aiding and abetting, not
conspiracy. Second, the evidence adduced at trial was consistent with the counts
charged. Accordingly, Frank has not established the evidence adduced at trial
materially varied from the indictment.
IV
Finally, Frank asserts the district court erred in denying his motion for
judgment of acquittal on the basis of insufficient evidence. "We review de novo a
district court's denial of a motion for judgment of acquittal." United States v. Clarke,
564 F.3d 949, 954 (8th Cir. 2009). The evidence must be viewed in light most
favorable to the verdict, and all reasonable inferences and credibility determinations
must be made in support of the jury's verdict. United States v. Hudspeth, 525 F.3d
667, 676 (8th Cir. 2008). Id. The Court will reverse a jury verdict on the grounds of
insufficient evidence "only if there is no interpretation of the evidence that would
allow a reasonable jury to find the defendant guilty beyond a reasonable doubt."
United States v. Boesen, 491 F.3d 852, 855 (8th Cir. 2007) (quoting United States v.
Cacioppo, 460 F.3d 1012, 1021 (8th Cir. 2006)).
Having reviewed the evidence presented at trial, we conclude there was
sufficient evidence to convict Frank on each count with which he was charged. See
8th Cir. R. 47B.
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V
For these reasons, the judgment of the district court is affirmed.
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