United States v. Bingham

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-50668
v.
 D.C. No.
CR-02-00938-
T. D. BINGHAM, aka Seal B; Bull;
Tyler Davis Bingham; The Hulk, DOC-2
Defendant-Appellant.


UNITED STATES OF AMERICA,  No. 06-50669
Plaintiff-Appellee,
D.C. No.
v.
 CR-02-00938-
EDGAR WESLEY HEVLE, aka Seal R; DOC-18
Snail,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding

Argued and Submitted
March 8, 2011—Pasadena, California

Filed August 4, 2011

Before: Pamela Ann Rymer, Consuelo M. Callahan, and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Rymer

10133
 UNITED STATES v. BINGHAM 10137

COUNSEL

William S. Harris, Law Offices of William S. Harris, South
Pasadena, California, for defendant-appellant T.D. Bingham.

Bernard J. Rosen, Law Offices of Bernard J. Rosen, Beverly
Hills, California, for defendant-appellant Edgar Wesley
Hevle.

Stephen G. Wolfe, Assistant United States Attorney, Los
Angeles, California, (argued); Joey L. Blanch, Assistant
United States Attorney, Los Angeles, California, for the
plaintiff-appellee.

OPINION

RYMER, Circuit Judge:

Tyler Davis Bingham and Edgar Hevle are members of the
Aryan Brotherhood prison gang and were convicted following
trial by a jury of substantive violations of the Racketeer Influ-
enced and Corrupt Organizations (RICO) Act, 18 U.S.C.
§ 1962(c), conspiracy to violate the RICO Act, 18 U.S.C.
§ 1962(d), the murders of Frank Joyner and Abdul Salaam as
violent crimes in aid of racketeering (VICAR), 18 U.S.C.
§ 1959(a)(1), and the murder of Arva Lee Ray, 18 U.S.C.
§ 1111. Bingham and Hevle appeal their convictions, and we
affirm.
10138 UNITED STATES v. BINGHAM
I

A

The Aryan Brotherhood (AB) started as a California state
prison gang and eventually spread to the federal system. AB
members were incarcerated at the United States Prisons in
Lompoc, California; Florence, Colorado; Marion, Illinois;
Leavenworth, Kansas; and Lewisburg, Pennsylvania.

Through the 1980’s, the AB had an informal structure of
command. AB members elected a three-person Council with
limited oversight capabilities, meant to act more as coordina-
tors than leaders. The Council’s main role was to “pass mes-
sages” and keep track of members, but over the years it got
more authority to make decisions. Barry Byron Mills, Edgar
Hevle, and Tommy Silverstein were on the first Council, with
T.D. Bingham joining later.

In 1992-1993, the AB replaced the Council with a more
powerful three-person Commission. The Council still existed,
but now was appointed by and subordinate to the Commis-
sion. The Commission’s written mission statement indicated
that it sought to “transform [the AB] from a disfunctional [sic]
prison gang into a viable and productive criminal organization
inside prison and on the streets.”

Mills, Bingham, and Al Benton were the three AB commis-
sioners at the time of most of the events in this case. By
majority vote, they could authorize any major decision for the
AB, such as ordering a hit on an AB member or going to war
against another prison gang. The Commission oversees the
organization, the Council implements the Commission’s pro-
grams, and lower level members carry out logistical tasks. At
each prison, one member (preferably a Council member) is in
charge of AB affairs and reports directly to the Commission.

The AB’s two main goals are to control, dominate, and
influence the prison system so that its members can have an
 UNITED STATES v. BINGHAM 10139
“easy time” while incarcerated; and to operate criminal enter-
prises, such as computer fraud, identity theft, extortion, prosti-
tution, gambling, and drug trafficking. The AB does not
hesitate to kill its enemies (or even its own members if they
disobey orders) to accomplish these goals. When the AB
orders a murder, AB members are supposed to “like a piranha
. . . come out and fight irregardless of whether it’s bad odds
or not.”

For new members, the AB has a policy of “blood in, blood
out”: potential members must commit a murder to gain full
membership, and can only leave when they die.1 AB members
also must support other AB “brothers,” may not assault other
brothers without permission, must split drug profits evenly,
and may not cooperate with law enforcement. Violating any
of these policies could get an AB member killed, though a kill
order could only come from the AB Commission. Conversely,
“[i]f someone assaulted an Aryan Brotherhood member, other
Aryan Brotherhood members were supposed to kill them at
any cost.” Prisoners indicate their status as AB members
through the use of symbols, such as an Irish shamrock, the let-
ters AB, or the number 666.

B

Arva Ray was a member of the Aryan Brotherhood incar-
cerated at Lompoc. He openly maintained a homosexual rela-
tionship, mishandled drugs, and disrespected AB brothers —
all against AB rules. Hevle disliked Ray and told Thomas
Miller, who testified, that Ray’s relationship “looked bad” for
the AB.

The Commission ordered Phil Myers to organize Ray’s
murder. Myers promised Glenn Filkins, who was not yet a
member, that he would gain full AB membership if he mur-
1
The “blood in” requirement was eventually relaxed to where new
recruits only “had to show a willingness to kill.”
10140 UNITED STATES v. BINGHAM
dered Ray. The AB members at Lompoc, including Hevle,
initially planned to kill Ray with rat poison, but decided
against this after rat poison failed to kill another target, inmate
Jeffrey Barnett. Instead, the AB decided to have Filkins kill
Ray by injecting him with an overdose of heroin. When the
AB delayed in killing Ray, Hevle sent a message asking what
the holdup was.

Filkins and Miller carried out the murder on August 9,
1989. When Ray did not die immediately from the heroin,
Filkins strangled him with a garrote wire while Miller held
him down. After the murder, Filkins told Miller that he had
been admitted to the AB and showed Miller a shamrock ring
— made in the prison dental lab and commissioned by the AB
— as evidence of his AB membership.

C

In a dispute over a drug debt, the Latin Kings prison gang
attacked AB associate Red Lollar. In retaliation, Bingham
ordered prospective AB member Steve Scott to attack Latin
Kings member Ismael Benitez-Mendez at Leavenworth.

On January 4, 1992, Officer William Halpin saw Benitez-
Mendez running away from a prisoner who was armed with
a knife. The armed prisoner wore a watch cap, green fatigue
shirt, and khaki pants. Halpin called for help as both inmates
ran away.

Prison officers were able to locate both the weapon used in
the assault and Benitez-Mendez, who had suffered knife
wounds to his back and hand. While searching the surround-
ing cells, officers found inmate Ernest Martinez wearing
blood-stained khaki pants; a green fatigue shirt lay nearby.
Officers also found two blood-stained brown paper towels in
the cell of Anthony Cruz and Edmund Gonzalez; Gonzalez
had a cut on his finger. That evening, the officers placed the
 UNITED STATES v. BINGHAM 10141
pants, shirt, and paper towels, along with other evidence, in
a locker for storage.

On January 4, five Hispanic inmates, including Ernest Mar-
tinez, were placed in the hole,2 pending an investigation. They
were released back into the general population the next
month. Meanwhile, prison officers decided on January 7 to
place Bingham, Steve Scott, and two other prisoners in the
hole. When the officers examined Scott, they discovered a
fresh “666” tattoo on the left side of his chest.

After investigation, prison officials determined that the
paper towels, pants, and shirt were unrelated to the attempted
murder. On August 12, 1992, those items were destroyed.

D

In December of 1996, at Lewisburg, the DC Blacks prison
gang killed a white inmate. After this murder, Hevle gave a
message to Dewey Lee, a prisoner transferring from Lewis-
burg to Marion, “to tell either Dave [Sahakian] or [Michael
McElhiney], specifically, nobody else, that they’d been hav-
ing racial problems at USP Lewisburg and to get ready.” Lee
understood the phrase “to get ready” to mean start making
knives and organizing AB members. Lee delivered the mes-
sage sometime after January 2, 1997.

On January 2, 1997, about a dozen members of the DC
Blacks attacked six white inmates at Marion. The AB mem-
bers at Marion met and decided to “move on” and “kill what-
ever DC Blacks and associates we could.” Michael Wagner,
an AB member, was transferred by prison officials from Mar-
ion to the supermax prison at Florence to prevent Wagner
from assaulting any DC Blacks. When transferred, Wagner
2
“The hole” refers to the Secure Housing Unit (SHU) where inmates are
confined to their cells for 23 hours a day. It is also referred to as “being
locked up.”
10142 UNITED STATES v. BINGHAM
delivered several messages to commissioner Mills, including
a message that “there was a war” at Marion. Even though
Wagner was in the hole, he was able to communicate with
Mills by speaking through a system of drainage pipes that
connected the two of them.

Mills responded that he would “see what’s going on, work
this out,” and told Wagner not to make any moves. Both Mills
and Bingham were housed at Florence and, as a majority of
the AB Commission, could approve a war with the DC
Blacks. If they authorized a war, Mills would signal AB mem-
bers by using the phrase “It’s a (baby) boy”; if the war were
called off, then Mills would use the phrase “It’s a (baby) girl.”
In the summer of 1997, Mills wrote that he “still don’t know
for certain yet whether the baby is a boy or a girl, but we’re
hoping for a girl, while preparing for either.” In the event of
war, the AB wanted it to be nationwide so that they could
“kill as many as we could as quick as we could.”

At some point, Mills learned that the DC Blacks at Marion
had put hits on Dave Sahakian and Michael McElhiney. Mills
sent a message to Bingham, via AB member Chris Risk, tell-
ing him “The Toads put a hit on Dave and Mac — The war
is on — Let Lewisburg know.” Bingham received Mills’s
message on August 14, 1997. After Chris Risk confirmed it
was from Mills, Bingham wrote an invisible-ink message to
Lewisburg, where Al Benton and other AB members were
housed, telling them “War with DC Blacks /s/ T.D.” Bingham
gave Ronald Slocum the message “[t]o send it to Lewisburg,
to move on the DC Blacks.”

On August 17, after being pressured by Jonathan McGinley
to make sure that everyone was “on the same page,” Bingham
wrote back to Mills to confirm the war was on. Bingham
enlisted McGinley to write a letter containing two coded mes-
sages. The first was in the body of the letter, where Bingham
wrote “I am a grandfather, at last my boys [sic] wife gave
birth to a strapping eight pound seven ounce baby boy.” The
 UNITED STATES v. BINGHAM 10143
quantities mentioned (“a,” “8,” and “7”) refer to California
Penal Code § 187 and the crime of murder. The second coded
message involved the letter itself, written in a cipher system
using cursive and printed characters. De-ciphering the text
reveals: “Confirm message from Chris to move on DC.”
Bingham also authorized attacks within his prison at Florence.
He told AB members Eugene Bentley and Kevin Roach to kill
DC Blacks Hollywood Smith and Clarence Hinnitt.3

Slocum delivered Bingham’s “War with DC Blacks” mes-
sage to Benton on August 27 at Lewisburg. Benton under-
stood the message to mean “Kill ‘em as soon as possible.
. . . ‘We’re at war.’ ”4 However, Benton wanted to verify the
cause of the war — that the DC Blacks had hit two AB mem-
bers at Marion — so he called Ronald Slocum. Slocum was
unable to do so.
3
Bingham’s message to Roach read:
D.C. Blacks put hits on Brothers — Marion. Uneffective as yet.
Some D.C./A.D.X. declare war on Wolfpack. Commission deems
threat serious. Orders — Lethal Counteraction. Coordinating
multiple/simultaneous action. Your unit make preparations. Tar-
get Beady. Launch time still undetermined. Will notify. Prepare
and hold. Awaiting confirmation.
4
Benton’s testimony shows that he had no doubts about what Bingham
intended to communicate:
A. . . . I didn’t believe that we were going to war, I mean, the cir-
cumstances for the war, in my own heart. But that’s not how it
works. The Commission, out of the three people, two people
make the vote. I have got no say in the thing. If one of the other
Commission members said no and I said no, then there’s no war.
It takes two to three. So war was called. I got the letter. War is
already called. It wasn’t a letter asking me my opinion.
Q. So that letter mean that—
A. Go to war.
Q. —that Defendant—
A. It meant kill every black you can find. That’s exactly what it
meant.
10144 UNITED STATES v. BINGHAM
On August 28, 1997, AB members led by Al Benton mur-
dered Frank Joyner and Abdul Salaam and stabbed Byron
Ball. Before the murders, Benton promoted Jason Schwyhart
and Henry Houston from probationary members of the AB to
full members because “they were going to sacrifice them-
selves” by “catching a case.” Benton explained that “if you
are going to try to kill as many people as you can, you know
you are going to catch . . . a murder case in Pennsylvania.”

Byron Ball was playing a game of Monopoly with Larry
Fortune and Frank Joyner when the attacks took place. Wayne
Bridgewater entered the cell where the three were playing and
repeatedly stabbed Joyner with a knife. Ball stepped away
from Bridgewater, toward the door of the cell, and pleaded
with Bridgewater to stop. Ball then noticed Schwyhart walk-
ing towards him, so Ball turned his body into the cell to let
Schwyhart pass by. As he turned back, Ball “felt something
hit my shoulder” and “my right arm started feeling funny.”
Ball saw blood dripping from his arm and went back to his
cell, where he tried to wrap a make-shift tourniquet around his
arm. Ball “later found out that [he] had been stabbed in such
a way that tying this like a tourniquet on didn’t do any good
whatsoever. Because [he] had been stabbed in the back this
way through the shoulder, took a piece of the armpit off under
my arm and a piece of the upside of my shoulder.”

Because Houston did not know by sight who he was sup-
posed to kill, Benton escorted him to Abdul Salaam’s cell.
They stabbed Salaam to death at the same time as the Joyner
and Ball attacks.

Back at Florence, the planned murders of Hollywood Smith
and Clarence Hinnitt never occurred because prison officials
preemptively placed all AB members in the hole to prevent a
Lewisburg-style attack. While in the hole, Kevin Roach asked
Bingham if he knew “exactly what was behind the Lewisburg
murders so that [Mills] would know whether to make the war
official or not.” Bingham responded, “hell yes, he had given
 UNITED STATES v. BINGHAM 10145
the order. He had given the word for the hits at Lewisburg and
to let Barry [Mills] know that it was on everywhere. . . . That
every [AB] member was to kill any DC Black that they
could.”

E

In 2002, a grand jury returned a ten-count indictment that
charged 40 defendants with committing RICO crimes as part
of their involvement with the AB. Bingham was charged with
a substantive RICO offense (Count 1), a RICO conspiracy
offense (Count 2), conspiring and aiding-and-abetting in the
VICAR murder of Frank Joyner (Count 6), conspiring and
aiding-and-abetting in the VICAR murder of Abdul Salaam
(Count 7), the murder of Arva Ray (Count 9), and the murder
of William McKinney (Count 10). Hevle was charged with a
RICO conspiracy offense (Count 2), conspiring and aiding-
and-abetting in the VICAR murder of Frank Joyner (Count 6),
conspiring and aiding-and-abetting in the VICAR murder of
Abdul Salaam (Count 7), and the murder of Arva Ray (Count
9).

As part of the substantive RICO offense, Bingham was
charged with the racketeering acts of conspiracy and murder
of Arva Ray, conspiracy and attempted murder of Ismael
Benitez-Mendez, conspiracy and murder of William McKin-
ney, conspiracy to murder black inmates, the Joyner murder,
the Salaam murder, and the attempted murder of Byron Ball.

After a five-month trial, the jury convicted Bingham of all
charges against him, except for the murder of William
McKinney. In a special verdict, the jury found that Bingham
was guilty of all racketeering acts alleged against him, except
for the conspiracy and murder of William McKinney. The
jury also found that Bingham had agreed to at least one act
involving murder and one act involving drug trafficking to
support his RICO conspiracy conviction. The jury convicted
Hevle of all charges against him and, to support the RICO
10146 UNITED STATES v. BINGHAM
conspiracy conviction, found that Hevle had agreed to two
acts involving murder. Bingham and Hevle were sentenced to
life in prison.

Both timely appeal their convictions.

II

A

Bingham claims that there is insufficient evidence to con-
vict him of the VICAR murders of Joyner and Salaam
because his message to Benton telling him there was “War
with the DC Blacks” could only be understood as a warning.
In support, Bingham points to evidence that Lewisburg was
a dangerous place for AB members and he was just trying to
alert Benton to this fact; that his message to Lewisburg, on
August 14, came before his confirmation to Mills on August
17; that the cover text of his letter to Mills had no independent
significance; that Benton’s phone conversations with Slocum
show Benton’s misunderstanding of Bingham’s message; that
no DC Blacks outside of Lewisburg were murdered; and that
the message to Roach was a warning because it included the
phrase “prepare and hold.”

[1] “Evidence is sufficient if, viewed in a light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” United States v. Odom, 329 F.3d 1032, 1034 (9th Cir.
2003). Here, a rational juror could have found that Bingham
took steps to aid and abet the murders of Joyner and Salaam.
He told Benton to go to war, and Benton did. Bingham’s
alternative explanations are countered by the government’s
evidence, which the jury was entitled to accept and which we
must assume that it did. For example, Jonathan McGinley tes-
tified that Bingham initially interpreted Mills’s message as a
clear declaration of war and only sent the coded letter asking
for confirmation at McGinley’s insistence; Bentley testified
 UNITED STATES v. BINGHAM 10147
that Bingham told him the message was meant “to kill DC
Blacks.” There was evidence that the coded text meant to
murder (“187”) and go to war (“baby boy”), showing
Bingham’s interpretation of Mills’s message. Benton’s
ambiguous conversations with Slocum can show caution
about prison officials monitoring the phone call as well as
confusion about mission. The fact that no DC Blacks outside
of Lewisburg were murdered does not connote the absence of
evidence in support of the verdict given evidence that AB
members elsewhere were put in the hole to avert another
Lewisburg-style attack. And Bingham’s note to Roach that
ordered him to “prepare and hold” can reasonably be read in
context of the order as a whole, which is captioned “Orders
— Lethal Counteraction,” to wait for “launch time” which
was “still undetermined.” The evidence is sufficient to sup-
port Bingham’s convictions under aiding-and-abetting or co-
conspirator liability.

B

Bingham also maintains that his conviction for a substan-
tive RICO offense under 18 U.S.C. § 1962(c) cannot stand,
primarily on account of insufficiency of the evidence. His the-
ory is that restructuring the AB in 1993 created a new crimi-
nal enterprise and acts that occurred before 1993, such as the
Ray murder and attempted murder of Benitez-Mendez, cannot
be related to acts that occurred after. In Bingham’s view,
those two murders are not related to each other, either.

[2] To convict, the evidence must show that Bingham was
engaged in a “pattern of racketeering activity,” that is, at least
two acts of racketeering activity, with the last act coming in
the last 10 years. 18 U.S.C. § 1961(5). These acts must be
related to each other and must “pose a threat of continued
criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S.
229, 239 (1989). Racketeering acts are related if they “have
the same or similar purposes, results, participants, victims, or
methods of commission, or otherwise are interrelated by dis-
10148 UNITED STATES v. BINGHAM
tinguishing characteristics and are not isolated events.” Id. at
240 (quotations omitted).5 Because Bingham does not chal-
lenge his conviction for one of the predicate acts charged
(Racketeering Act 37, conspiracy to Murder Black Inmates),
we must affirm his substantive RICO conviction if we uphold
at least one additional predicate act that is related to Racke-
teering Act 37. See id. at 237.

[3] The particular structure under which the AB operated
at the time of the various predicate acts is not determinative
of the relatedness of those acts. As the Supreme Court
recently held, a RICO enterprise “need not have a hierarchical
structure or a ‘chain of command.’ ” Boyle v. United States,
129 S. Ct. 2237, 2245 (2009). The enterprise does not need
a formalized decision-making method, nor must it assign
members specific roles and duties. Id. “[A] group that does
nothing but engage in extortion through old-fashioned, unso-
phisticated, and brutal means may fall squarely within the
statute’s reach.” Id. at 2246. In short, the AB must only have
had “some sort of framework, formal or informal, for carrying
out its objectives” and members who worked as a “continuing
unit to achieve a common purpose.” Id. at 2247 (internal quo-
tations omitted). So long as it had such a framework, the AB
need not have employed any particular structure, or the same
structure, to be a continuing unit with common purpose.

[4] There was evidence that, throughout the span of
Bingham’s racketeering acts, the AB had a framework for car-
rying out its objectives and its members worked as a continu-
ing unit to achieve a common purpose. Before 1993, the AB
had a leadership structure based around the Council. After
5
Bingham relies on the Second Circuit’s description of the relatedness
requirement as having a “horizontal” and “vertical” component. United
States v. Daidone, 471 F.3d 371, 375 (2d Cir. 2006) (per curium). We
have not adopted this precise formulation, but it would not matter here
given that both components are satisfied by evidence that each predicate
act is related to the activities of the criminal enterprise. Id.
 UNITED STATES v. BINGHAM 10149
1993, this structure was replaced by a three-man Commission,
which oversaw the general direction of the AB, and subordi-
nate levels of organization, including those who were to call
the shots at the prison level. While these changes formalized
the AB’s hierarchy, they did not modify the AB’s existence
or its purpose or membership.

The AB pursued the same criminal goals both before and
after the restructuring. It sought to control and dominate the
prison system for its own benefit by killing those who
attacked its members or disparaged its image. It also operated
various criminal schemes involving prostitution, theft, extor-
tion, gambling, and drugs. Nothing in the 1993 restructuring
changed these goals.

Nor did the restructuring change any aspects or require-
ments of AB membership; it only codified the process of
admitting new members and swearing them in. AB members
still joined by invitation only, were to murder others when
told to, and had to kill or attempt to kill targets in order to
gain membership. AB members were to comply with all AB
orders or risk being killed as punishment, both before and
after 1993. And AB members continued using coded mes-
sages to organize crimes and making knives to carry out
assaults and murders.

[5] Thus, a rational juror could find beyond a reasonable
doubt that the AB remained the same criminal enterprise and
the acts pre- and post-1993 were not insufficiently related. For
the same reasons, because the AB continued as the same
enterprise, the government did not constructively amend the
indictment by telling the jury it could convict Bingham for
RICO conspiracy (Count 2) on post-1993 evidence alone. See
United States v. Adamson, 291 F.3d 606, 615 (9th Cir. 2002)
(constructive amendment occurs when the “complex of facts
presented at trial [are] distinctly different from those set forth
in the charging instrument” or when “the crime charged in the
10150 UNITED STATES v. BINGHAM
indictment was substantially altered at trial”) (alterations
omitted).

[6] Likewise, the jury could find the requisite relatedness
connecting the Ray and Benitez-Mendez murders. Testimony
by a number of former AB members showed that Ray was a
member who flaunted the rules by, among other things,
engaging in an openly homosexual relationship, disrespecting
other AB members, and using drugs excessively without shar-
ing. The jury could find that the Commission — including
Bingham — ordered his death for these reasons, and that
Filkins was ordered to kill him to gain membership. Benitez-
Mendez had assaulted AB associate Red Lollar, which trig-
gered the AB policy to mark him for death. Bingham (at the
time the shot-caller at Leavenworth as well as a member of
the pre-restructuring Council) ordered Scott to kill him, which
he tried to do by obtaining a knife, sneaking up behind
Benitez-Mendez in a stairwell, and stabbing him in the back.
Eugene Bentley testified that afterwards, Scott hid in Bent-
ley’s cell, and he and other former members testified that
Bingham said he had ordered Scott to kill Benitez-Mendez
because Benitez-Mendez had disrespected the AB by assault-
ing Lollar. Accordingly, a rational juror could find that the
two acts were related in purpose, result, participants, and
methods of commission, telegraphing to the prison population
that the AB maintained control by keeping its own members
in line and protecting them from others.

C

Bingham further submits that there is insufficient evidence
to support his convictions as an accomplice to the murders of
Frank Joyner and Abdul Salaam, and the attempted murder of
Byron Ball. However, as we have explained, there was evi-
dence from which the jury could rationally find that Bingham
sent an order to go to war with the DC Blacks that resulted
in AB members’ attacks on Joyner, Salaam, and Ball.
 UNITED STATES v. BINGHAM 10151
D

[7] Finally, Bingham claims that it is legally impossible to
classify Schwyhart’s attack on Byron Ball as an attempted
murder because it only rises to the level of assault. Under
Pennsylvania law, a person commits attempted murder when,
with specific intent to kill, he takes a substantial step towards
killing the victim. Commonwealth v. Blakeney, 946 A.2d 645,
652 (Pa. 2008). “The substantial step test broadens the scope
of attempt liability by concentrating on the acts the defendant
has done and does not any longer focus on the acts remaining
to be done before actual commission of the crime.” Common-
wealth v. Gilliam, 417 A.2d 1203, 1205 (Pa. Super. Ct. 1980).
Stabbing a victim in the chest qualifies as a substantial step
for attempted murder. See Blakeney, 946 A.2d at 652. Here,
Jason Schwyhart stabbed Ball in the back, through his shoul-
der, and out the armpit, in such a way that a tourniquet could
not apply pressure to the recessed wound. A jury could rea-
sonably conclude that Schwyhart took a substantial step to kill
Ball.

[8] While Bingham claims that Schwyhart did not intend
to kill Ball because he was not a DC Black, there is substan-
tial evidence that the AB meant to kill black inmates generally.6
Schwyhart could also plausibly have mistaken Ball for a DC
Blacks member or associate, as Ball was in Frank Joyner’s
cell and pleading with Bridgewater to stop his attack. There
is sufficient evidence to support the jury’s finding of an intent
6
For example, there was testimony that:
“[A]ny black man who raised his hand to a white man, we hit
him. He dies.”
“The goal was to kill whatever DC Black and associates we
could.”
“[A] full, black-and-white race war.”
“It meant kill every black you can find. That’s exactly what it
meant.”
10152 UNITED STATES v. BINGHAM
to kill, and sufficient evidence to support Bingham’s substan-
tive RICO conviction.

III

A

[9] Bingham argues that he was convicted of conspiracy to
murder and attempted murder of Benitez-Mendez (Racketeer-
ing Act 9) in violation of due process because prison officers
destroyed the bloody pants found on a Hispanic inmate after
the attempted murder. This evidence was facially exculpatory
to Bingham because it implicated a non-AB member as the
attacker. But to be a constitutional violation, the destroyed
evidence must also “be of such a nature that the defendant
would be unable to obtain comparable evidence by other rea-
sonably available means.” California v. Trombetta, 467 U.S.
479, 489 (1984).

[10] There was comparable evidence in this case. Officer
Del Muro testified that he found inmate Martinez wearing
blood-stained pants right after the attack on Benitez-Mendez.
The parties also stipulated to the fact that “inmate Ernest Mar-
tinez . . . was found to be wearing blood-stained khaki pants.”
The fact that the bloody pants existed was proven at trial by
comparable evidence; Bingham was not denied due process.
While the bloody pants possessed additional exculpatory
value in that they could be tested for DNA, as Bingham notes
on appeal, there is no indication that they were destroyed in
bad faith. See Arizona v. Youngblood, 488 U.S. 51, 56-58 &
n.* (1988) (“The presence or absence of bad faith by the
police for purposes of the Due Process Clause must necessar-
ily turn on the police’s knowledge of the exculpatory value of
the evidence at the time it was lost or destroyed.”); United
States v. Sherlock, 962 F.2d 1349, 1355 (9th Cir. 1992).
Bingham has made no such showing.
 UNITED STATES v. BINGHAM 10153
B

The government’s case against Bingham for the murder of
Arva Ray centered largely on the testimony of Thomas Miller,
who helped Glenn Filkins murder Ray. Miller testified that
Filkins was an AB prospect who sought full membership; the
only way to become an AB member was “to kill someone or
at least make a valiant effort.” Miller stated that Filkins
received an order from the Council (Mills and Bingham) to
kill Arva Ray. After the murder, Filkins told Miller that the
AB had made him a full member and showed him a ring
engraved with a shamrock as proof.

Bingham argues that Miller’s testimony was false and that
the government knew it was when it put Miller on the stand.
If so, this would constitute a due process violation under
Mooney v. Holohan, 294 U.S. 103 (1935), and Napue v. Illi-
nois, 360 U.S. 264 (1959). To prevail on a false testimony
claim, the defendant must show that “(1) the testimony (or
evidence) was actually false, (2) the prosecution knew or
should have known that the testimony was actually false, and
(3) . . . the false testimony was material.” United States v.
Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003). We review
Bingham’s claim for plain error because he did not object at
trial. United States v. Romero-Avila, 210 F.3d 1017, 1021-22
(9th Cir. 2000).

Miller testified on direct that Filkins did not wear the sham-
rock ring until after Ray’s murder. On cross-examination,
defense counsel brought out a statement Miller made in 1994
that Filkins had been wearing the ring a month before Ray’s
murder, suggesting that Filkins did not need to murder Ray to
gain AB membership. Miller responded that he did not recall
saying this, but conceded that it was “very possible” he had.

[11] We “cannot presume that the prosecutor knew that the
prior [inconsistent] statement was true” but elicited perjured
testimony anyway, United States v. Baker, 850 F.2d 1365,
10154 UNITED STATES v. BINGHAM
1371 (9th Cir. 1988), and Bingham points to nothing in the
record that shows the intentional use of perjured testimony.
Certainly Miller made inconsistent statements, but that is not
enough for a Napue violation. See United States v. Williams,
547 F.3d 1187, 1202 n.13 (9th Cir. 2008) (“Although there
were inconsistencies in Penate’s testimony, there was no evi-
dence that the government knowingly presented false testi-
mony. . . . The inconsistencies in Penate’s testimony were
argued to the jury.”).

[12] Bingham also contends that Miller lied about his
involvement in the murder of William McKinney. However,
there is no evidence that Miller lied or made inconsistent
statements, and in any event Bingham was acquitted of McK-
inney’s murder. Moreover, we have no reason to believe that
Bingham’s conviction is unworthy of confidence. Hayes v.
Brown, 399 F.3d 972, 984 (9th Cir. 2005).

IV

Hevle maintains that his conviction for the murder of Arva
Ray cannot stand because the testimony against him was fab-
ricated and inherently improbable. We review for sufficiency
of the evidence, and “[a]bsent facial incredibility, it is not our
role to question the jury’s assessment of witness credibility.”
United States v. Tam, 240 F.3d 797, 806 (9th Cir. 2001).

[13] While we may disregard inherently improbable testi-
mony, United States v. Ramos-Rascon, 8 F.3d 704, 708 n.3
(9th Cir. 1993), none of the testimony against Hevle was
inherently improbable. Thomas Miller testified that the AB,
including Hevle, decided to murder Ray with a heroin over-
dose rather than rat poison because rat poison had failed to
kill Jeffrey Barnett. On cross-examination, the defense intro-
duced prison housing records to show that Barnett’s poisoning
occurred at least seven weeks after Ray’s murder. While this
indicates that AB members could not have discussed the fail-
ure of rat poison to kill Barnett while planning how to kill
 UNITED STATES v. BINGHAM 10155
Ray, it does not make it “inherently improbable” that Hevle
took part in a plan to murder Ray.

Michael Manby testified that, prior to Ray’s murder, Hevle
and Phil Myers complained that Ray was not “giving the right
percent on the drugs [to the AB] and his homosexual activi-
ties” did not help the situation. They concluded that if Ray’s
conduct did not change, “he would be in big trouble.” Several
weeks after the Ray murder, Hevle and Myers told Manby
that “they have a necktie man, and the necktie man can make
a necktie big enough for [Manby].” This referred to new AB
member Glenn Filkins, who murdered Ray by strangling him
with a garrotte wire. Manby also testified that Filkins, who
later became his cellmate, admitted killing Ray based on
orders from Myers and Hevle.

Hevle contends that the conversation about the “necktie
man” could not have taken place because Hevle was in the
hole at that time. While prison housing records indicate that
this was probably true, being in the hole did not render Hevle
incapable of communicating with fellow AB members. Pris-
oners in the hole are still allowed one hour a day in a recre-
ation cage. It was during this time in the rec cages that
Eugene Bentley spoke with Mills and Kevin Roach spoke
with Bingham. Prisoners could also communicate with each
other across the rec yard by using sign language or speaking
through a system of drainage pipes. AB members also snuck
messages hidden in peanut shells to prisoners in the hole, who
then responded by performing a specific number of push-ups
or sit-ups, which were visible to the sender on the prison’s
closed circuit TV. Based on this evidence, and drawing all
inferences in the government’s favor, it is not inherently
improbable to believe that Manby had a conversation with
Hevle and Myers while they were in the hole.

[14] Hevle contends that William Kelly’s testimony —
that before Ray’s murder, Phil Myers told him about a mes-
sage that came out of the hole, asking “what’s going on? Why
10156 UNITED STATES v. BINGHAM
isn’t Baby Ray took care of?” — is fabricated because it was
not included in the government’s summaries of interviews
with Kelly and is impugned by Kelly’s further testimony that
Hevle was “locked up . . . [in] the hole” at this time. The jury
heard this impeaching evidence and was able to evaluate it for
what it was worth. Hevle also complains about testimony by
Glen West concerning the murder of William McKinney, but
Hevle was not convicted on the McKinney charges and the
inconsistencies he points to do not relate to any other charges.
Considering all of the testimony in the light most favorable to
the government, there was sufficient evidence to support
Hevle’s conviction.

V

At the end of the government’s case, Hevle renewed a
motion to dismiss all charges against him for insufficiency of
the evidence. The district court granted it in part as to the
VICAR murders of Frank Joyner and Abdul Salaam, reason-
ing that Hevle could not be convicted on an aiding-and-
abetting theory because the intervening facts between Hevle’s
message telling Marion “to get ready” and the Lewisburg
murders rendered the murders too remote to be considered
within the natural and probable consequences of Hevle’s hav-
ing sent the message. However, the district court declined to
dismiss these murder charges in their entirety, for it concluded
that Hevle could be convicted on a Pinkerton theory of liabil-
ity. Pinkerton v. United States 328 U.S. 640, 646-48 (1946).

[15] Under Pinkerton, Hevle would be guilty if (1) he were
a member of the conspiracy at the time of the murders,7 (2)
and another member of the conspiracy (3) killed Joyner and
Salaam (4) in furtherance of the conspiracy, (5) and the mur-
ders fell within the scope of the unlawful agreement and
7
The district court found that there was sufficient evidence that Hevle
was a member of a conspiracy to violate RICO by virtue of his participa-
tion and leadership in the Aryan Brotherhood.
 UNITED STATES v. BINGHAM 10157
“could reasonably have been foreseen to be a necessary or
natural consequence” of the conspiracy. United States v.
Alvarez-Valenzuela, 231 F.3d 1198, 1202-03 (9th Cir. 2000).
The district court recognized that “it appears inconsistent” for
the Lewisburg murders to be a “necessary or natural conse-
quence of the unlawful agreement” when it had just ruled that
the murders could not be a “necessary or probable conse-
quence of Hevle’s act of sending the message.” Yet, it
explained, aiding-and-abetting foreseeability focuses on the
act, while Pinkerton foreseeability focuses on the overall con-
spiracy. Thus, in the district court’s view, when “the act is
quite narrow, but the conspiracy is broad and sweeping, dif-
ferent results are to be expected.”

[16] We agree with the district court, that aiding-and-
abetting liability differs from Pinkerton liability. United
States v. Hernandez-Orellana, 539 F.3d 994, 1006-07 (9th
Cir. 2008) (contrasting an aiding-and-abetting charge with a
“broader” criminal conspiracy charge); United States v.
Nakai, 413 F.3d 1019, 1023 (9th Cir. 2005) (Pinkerton liabil-
ity “broadens a defendant’s liability beyond the aiding and
abetting charge”). “[Pinkerton] renders all co-conspirators
criminally liable for reasonably foreseeable overt acts com-
mitted by others in furtherance of the conspiracy they have
joined, whether they were aware of them or not.” Hernandez-
Orellana, 539 F.3d at 1007. Although Pinkerton liability is
limited by due process and does not reach defendants with
extremely minor roles in the conspiracy, that is not the case
here. Cases in which we have held that Pinkerton liability
does not attach are quite different. For instance, in United
States v. Castaneda, the defendant was the wife of a high-
level drug dealer who “answer[ed] her home phone, [took]
messages from callers and answer[ed] [her husband’s] ques-
tions when he called.” 9 F.3d 761, 767 (9th Cir. 1993) over-
ruled on other grounds, United States v. Nordby, 225 F.3d
1053, 1059 (9th Cir. 2000). There was no evidence that she
knew of the specific drug deals at issue, knew how the drug
distributing organization worked, or knew that there was a
10158 UNITED STATES v. BINGHAM
need for firearms given the “high-level import and distribu-
tion operation of the Castaneda clan.” Id. at 766-68. In these
circumstances, we declined to uphold her conviction for car-
rying a firearm during a drug trafficking crime. Id. at 768.

Similarly, we have held that mere gang membership “can-
not itself prove that an individual has entered a criminal
agreement to attack members of rival gangs.” United States v.
Garcia, 151 F.3d 1243, 1246 (9th Cir. 1998). But in Garcia,
unlike this case, the government failed to prove the existence
of an agreement among the defendant and Bloods gang mem-
bers to shoot members of the Crips gang. Id. at 1246-47.
Accordingly, the “general practice of supporting one another
in fights” was insufficient to show that Garcia and his fellow
Bloods conspired to assault rival gang members with deadly
weapons. Id. at 1247.

[17] Unlike Leticia Castaneda — whose only connection
to the firearm offenses was being married to one of the con-
spirators — Hevle was substantially involved in the AB.
Hevle had been a member of the AB since the early 1980s and
served in a leadership position on the Council for two years.
He was also an active participant in organizing violence pur-
suant to AB rules. He helped plan Arva Ray’s murder after
Ray violated AB rules, and he told AB members at Marion to
make knives and organize themselves to attack the rival DC
Blacks gang. Hevle’s role was neither minor nor marginal;
given it, he could reasonably foresee that a co-conspirator
might commit murder in furtherance of the conspiracy.

And unlike the Bloods gang in Garcia —whose members
merely agreed to “back one another up in fights” — the AB
had a policy of attacking and murdering rival gang members
and killing any AB members who obstructed this policy. The
AB was initially formed in the 1960s as a counterforce to
rival black and Hispanic prison gangs. AB members Clifford
Smith and Michael Wagner testified that the AB had previ-
ously gone to war with the Nuestra Familia, Black Guerilla
 UNITED STATES v. BINGHAM 10159
Family, and DC Blacks prison gangs. AB member Glen West
testified that giving knives to a rival gang was punishable by
death, “because we don’t want to arm somebody that could be
coming after us later.” Kevin Roach stated that the AB placed
its enemies on hit lists and that “any brother that ran across
[an enemy] was supposed to take care of him.” The AB con-
sidered the DC Blacks to be enemies as early as 1991. Thus,
the murders of Joyner and Salaam could be “reasonably fore-
seen as a necessary or natural consequence of the unlawful
agreement.” Pinkerton, 328 U.S. at 646-48.

[18] Based on the same evidence that renders Hevle liable
as a Pinkerton co-conspirator for the Joyner and Salaam mur-
ders, the jury could also find him guilty of RICO conspiracy
for agreeing to two acts involving murder.

VI

Hevle claims that the government engaged in outrageous
conduct during the grand jury proceedings and that the district
court erred in denying Hevle’s motion to this effect. The
scope of our review is quite narrow, because the petite jury
convicted Hevle on all charges. Thus, “any error in the grand
jury proceeding connected with the charging decision is
deemed harmless beyond a reasonable doubt.” People of Ter-
ritory of Guam v. Muna, 999 F.2d 397, 399 (9th Cir. 1993)
(quoting United States v. Mechanik, 475 U.S. 66, 70 (1986))
(alterations and internal quotations omitted). After a convic-
tion, only a structural error that renders the grand jury pro-
ceedings “fundamentally unfair” may be corrected. Id. at 399
(quoting Bank of Nova Scotia v. United States, 487 U.S. 250,
257 (1988)). The only structural errors the Supreme Court has
recognized are racial and gender discrimination in the selec-
tion of the grand jurors. See Bank of Nova Scotia, 487 U.S.
at 257.

Hevle does not posit any structural defects but instead
argues that the government presented misleading evidence to
10160 UNITED STATES v. BINGHAM
the grand jury about the “cause-in-fact” of the AB’s war with
the DC Blacks. Specifically, Hevle urges that the grand jury
should have been apprised of the January 2 attacks at Marion,
which he maintains had a more direct causal link to the race
war than did his “get ready” message to the AB members at
Marion, which arrived after January 2. However, the govern-
ment has “no obligation to disclose ‘substantial exculpatory
evidence’ to a grand jury.” United States v. Navarro, 608 F.3d
529, 537 (9th Cir. 2010) (quoting United States v. Haynes,
216 F.3d 789, 798 (9th Cir. 2000)); see also United States v.
Williams, 504 U.S. 36, 53 (1992) (prosecutor has no “binding
obligation” to present substantial exculpatory evidence to the
grand jury).

VII

During the trial, Hevle sought to introduce the indictment
in the related case of United States v. Sahakian from the
Southern District of Illinois — in which he was not named as
a defendant — in order to show that the government didn’t
believe he was a member of the conspiracy to murder DC
Blacks at Marion.8 The Sahakian indictment charged AB
members at Marion with crimes related to assaults and mur-
ders following the January 2 attack by DC Blacks. The district
court refused to admit the indictment under Fed. R. Evid. 403
because it was not particularly probative of Hevle’s role in the
conspiracy alleged in this case, created significant risk of jury
confusion, and would waste time.

We review exclusion of the Sahakian indictment for abuse
of discretion, United States v. Pang, 362 F.3d 1187, 1194 (9th
Cir. 2004), and see none. It would not, as Hevle supposes,
assist him in proving an “inconsistent theories” defense. The
government may decide to charge or not to charge a suspect
in an indictment for a variety of reasons that have nothing to
do with his guilt or innocence, taking into consideration the
8
On appeal as United States v. Sahakian, 453 F.3d 905 (7th Cir. 2006).
 UNITED STATES v. BINGHAM 10161
availability of prosecutorial resources, alternative priorities,
the expectation of prosecution by other authorities, or any
number of other valid discretionary reasons. See, e.g., United
States v. Sua, 307 F.3d 1150, 1153 (9th Cir. 2002) (“[A] dis-
trict court may properly exclude, under Fed. R. Evid. 403, a
plea agreement offered for the purpose of establishing the
government’s belief in a person’s innocence.”); see also
United States v. Delgado, 903 F.2d 1495, 1499 (11th Cir.
1990) (“Certainly, we cannot attribute the government’s deci-
sion not to prosecute to an independent determination that the
defendant is not guilty.”); United States v. Bakshinian, 65 F.
Supp. 2d 1104, 1105-10 (C.D. Cal. 1999). In addition, though
the indictment itself may be concise, explaining its signifi-
cance and relevance to the jury, combined with explaining the
government’s reasons for prosecuting Hevle with Bingham
and not with Sahakian, would consume time with little or no
probative value at the end of the day, and be unnecessarily
confusing. In short, the district court acted well within its dis-
cretion in excluding the Sahakian indictment.

AFFIRMED.