Federal law defines a gang as: “An ongoing club, organization or association of five or more persons that has as one of its primary purposes the commission of one or more criminal offenses that are spelled out in the federal law (offenses include drug dealing, crimes of violence and others).”
Classic gang prosecutions involve charging groups of gang members with drive-by shootings, stabbings and other crimes that benefit the gang’s criminal activity in some way.
State-level definitions vary, depending on which jurisdiction you work in. For example, in California, it is three or more persons as opposed to the federal level of five. Be that as it may, state and federal statutes say the same thing – that a gang crime involves persons committing crimes that are done for the benefit of the gang of which they are members.
Lone actors
But what about the gang member who commits a gang crime alone? There are instances where a gang member commits a crime without any accomplices. The important question that needs to be answered is, “Did the gang member commit the crime to help themselves or do it in support of the overall gang?
A drug-addicted gang member who commits an armed robbery to support his drug habit is acting in his own self-interest. That is a no-brainer. But what about a gangster who approaches a group of rival gang members and shoots one of them?
I had a case like this where an up-and-coming Norteño wanted to prove his loyalty. Some senior gang members convinced him to approach a group of rival Sureño gang members in their turf and shoot them, which is exactly what the aspiring Norteño did.
I was able to show that the act benefited the gang by outlining the basic facts of the case:
- The attack was executed by a Norteño gang member;
- The target of the attack was a group of rival gang members;
- The attack took place in rival gang turf.
What made this case even more compelling as a gang-related crime was the fact the suspect had admitted he been told by senior gang members to commit the act. While we were not able to prove that this was the case, it was documented and used in a gang predicate report. But, absent that info, the case still met the basic elements of a gang crime.
One element missing from this case was that the suspect had no prior gang contacts, no gang tattoos and no prior gang admissions. Despite that, the criminal acts committed by the suspect were enough to secure a gang conviction. Fortunately, this aspect of the case is not common. Your normal “lone wolf” gang attack will be committed by a crook with provable gang history.
Check with your prosecutor
One important step you need to take before taking on a case like this is to run it by the prosecutor who potentially is tasked with taking it to court. Case law in your jurisdiction may preclude charging a single individual with a gang crime. The prosecutor may be aware of instances where similar cases have gone before a judge and/or jury and they were rejected. However, I would not accept a “We’ve never tried a case like this before” rationale for not moving forward with your case.
Another case I worked on involved a graffiti sting operation. We conducted surveillance in an area where a large amount of gang tagging was occurring. On an almost nightly basis, gang members were going to a location and crossing out tags from rival gang members and adding signs and symbols that represented their own crew. We staked it out and observed a lone gangster tag the wall. In this instance the crime was so, gang specific – using gang graffiti in a contested gang area to cross out rival gang graffiti and adding your own – that the benefits portion was easy to show. Unlike the previously mentioned shooting, this lone actor had plenty of prior gang history and tattoos to back up our claim that he was a gang member. He was eventually convicted of felony vandalism and a gang enhancement.
Do not overlook the importance of co-conspirators who are involved before or after the crime. I mentioned in the shooting case that the suspect had been encouraged to do it by other gang members. This is often the case. Gang members can receive suggestions or even direct orders by way of:
- Phone calls
- Text messages
- Social media posts
- Kites
- Jail calls.
These all need to be considered. Similarly, after the gang crime has been committed, the suspect may be in contact with other gang members. It may simply be to seek acknowledgment for what they have done. It could also be for criminal assistance after the fact. The suspect may seek assistance in fleeing law enforcement and/or help in dissuading or threatening witnesses.
If that is the case you may be able to charge a suspect, or suspects, for their involvement in the crime before or after the crime occurred. Witness intimidation is a great gang crime that often gets overlooked.
So don’t rule out gang crime if you only have one suspect.
