United States of America v. Baling N. Dat

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 25-1131
___________________________
United States of America
Plaintiff - Appellee
v.
Baling N. Dat
Defendant - Appellant
___________________________
No. 25-1198
___________________________
United States of America
Plaintiff - Appellee
v.
Jany Jock
Defendant - Appellant
___________________________
No. 25-1199
___________________________
United States of America
Plaintiff - Appellee

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v.
Dilang Dat
Defendant - Appellant
___________________________
No. 25-1246
___________________________
United States of America
Plaintiff - Appellee
v.
Dilang Dat
Defendant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: February 11, 2026
Filed: July 9, 2026
____________
Before COLLOTON, Chief Judge, BENTON and KELLY, Circuit Judges.
____________
BENTON, Circuit Judge.
Baling N. Dat appeals his criminal convictions for possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1); possession of a
firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A); and possession of a firearm as a prohibited person, in violation of 18

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U.S.C. §§ 922(g)(1), 924(a)(2). Dilang N. Dat appeals his criminal conviction for
possession of a firearm as a prohibited person, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2). And, Jany G. Jock appeals his criminal conviction for selling or otherwise
disposing of a firearm to a felon, in violation of 18 U.S.C. §§ 922(d)(1), 924(a)(2).
They collectively challenge the district court’s1 admission of conspiracy and gang-
related evidence. Baling separately argues that the district court erred in denying his
motions to suppress and sever. Dilang and Jock appeal the denial of their motions
for acquittal. Finally, Baling and Dilang appeal their sentences. Having jurisdiction
under 18 U.S.C. § 1291, this court affirms.
I.
Around December 2021, a citizen told the Omaha Police that drugs and
firearms were inside 4704 Ellison Avenue, and that drugs were sold there. Police
knew Baling and Dilang resided there, and that they were convicted felons and Trip
Set gang members.
Police were investigating the Trip Set gang for drug possession, sales,
overdoses causing death, and violent crimes. The investigation included 4704
Ellison. Two months before the citizen’s tip, Goa N. Dat, a resident there and brother
of Baling and Dilang, was murdered in a shooting. Detective David D. Ullery, a part
of the Gang Intelligence Unit, swore that additional assaults and violent crimes
followed Goa’s death.
Responding to the citizen’s tip, Officer Jerrod Galloway pulled the trash from
4704’s driveway on trash-pickup day, January 21, 2022. Detectives Ullery and
Brandon Braun searched the two trash bags, finding: marijuana residue between two
cups; a torn-off piece of a ziplock baggie; and four unfired 9 mm bullets stuffed
inside two nitrile gloves. The marijuana residue tested positive for THC.
1 The Honorable Brian C. Buescher, United States District Judge for the
District of Nebraska.

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Based on Detective Ullery’s affidavit, a no-knock search warrant was issued
for 4704 Ellison. Five days later, a SWAT team executed it, encountering Baling,
Dilang, Jock, and others.
In Baling’s room, officers found two firearms (a Glock 23 Gen4 and a Sig
Sauer P365), loaded magazines, ammunition, thousands of dollars, and a fanny pack.
The fanny pack had 12.8 grams of cocaine, several baggies, and three digital scales
with white powder on their surfaces. DNA found on the two firearms matched
Baling’s.
In Dilang’s room, they found a Ruger-57 handgun, loaded magazines, and
ammunition tied off in a nitrile glove. The Ruger-57 had “no fingerprints” and “a
very low amount of DNA,” excluding Dilang and Baling as the contributors. At
trial, the government used the Ruger-57’s location in Dilang’s room and photos of
Dilang handling it to suggest the firearm was wiped.
In Jock’s room, they found a loaded Glock 19 Gen4, two boxes of
ammunition, magazines, nitrile gloves, and sales records for the Glock 19 and a
Glock 43 Gen4. Only one of Jock’s fingerprints was on the Glock 19 despite photo
evidence of Dilang handling it. At trial, Nyot M. Pan, the defendants’ friend,
testified he bought the Ruger-57 and left it with Jock. The boxes of ammunition
contained 5.7x28mm rounds, compatible with only the Ruger-57. One box was
missing 25 rounds. One magazine in Dilang’s room was loaded with 21 rounds with
the 5.7x28mm headstamp. Police later learned that Jock purchased the Glock 23
found in Baling’s room.
Officers seized the defendants’ phones, finding: text messages between the
defendants (and others) about buying, possessing, and sharing firearms; images and
video of Baling and Dilang with firearms; search histories about firearms and straw
purchases; and location data showing Jock purchased firearms.

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After an eight-day trial, the jury found Baling guilty of possession with intent
to distribute cocaine; possession of a firearm in furtherance of a drug-trafficking
crime; and being a felon in possession of a firearm. The district court sentenced him
to 195 months in prison.
The jury found Dilang guilty of being a felon in possession of a firearm. He
was then on supervised release. The district court revoked his supervised release,
sentencing him to a total of 144 months in prison.
The jury found Jock—a non-felon—guilty of selling or otherwise disposing
of a firearm to a felon. The district court sentenced him to 120 months in prison.
II.
Baling argues that the search warrant lacked probable cause.
The Fourth Amendment protects persons and their “houses, papers, and
effects against unreasonable searches and seizures” effectuated by the government.
U.S. Const. amend. IV. See Bailey v. United States, 568 U.S. 186, 192 (2013) (The
Fourth Amendment applies to the states through the Fourteenth Amendment.).
Fourth Amendment interests are at their zenith in the home. See Florida v. Jardines,
569 U.S. 1, 6 (2013) (“[W]hen it comes to the Fourth Amendment, the home is first
among equals.”); Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (“It is axiomatic
that the physical entry of the home is the chief evil against which the wording of the
Fourth Amendment is directed.” (citation and quotation omitted)). “The Fourth
Amendment ordinarily requires that police officers get a warrant before entering a
home without permission.” Lange v. California, 594 U.S. 295, 298 (2021).
Warrants require probable cause. U.S. Const. amend. IV. Probable cause,
however, is “not a high bar.” United States v. Charles, 125 F.4th 904, 910 (8th Cir.
2025), quoting Kaley v. United States, 571 U.S. 320, 338 (2014).

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“Probable cause exists when there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” United States v. Juneau,
73 F.4th 607, 614 (8th Cir. 2023). For a denial of a motion to suppress, this court
“reviews the district court’s factual findings for clear error and legal conclusions de
novo.” United States v. Norey, 31 F.4th 631, 635 (8th Cir. 2022). Probable-cause
determinations are legal conclusions. United States v. Torres-Lona, 491 F.3d 750,
755 (8th Cir. 2007). “In reviewing whether a warrant was supported by probable
cause, our role is to ensure that the issuing judge had a substantial basis for
concluding that probable cause existed.” United States v. Tate, 139 F.4th 678, 682
(8th Cir. 2025) (quotation omitted).
Here, Detective Ullery’s affidavit provided a substantial basis for probable
cause. True, the citizen’s tip, alone, might have been insufficient. See Alabama v.
White, 496 U.S. 325, 329 (1990) (“[A]n anonymous tip alone seldom demonstrates
the informant’s basis of knowledge or veracity inasmuch as ordinary citizens
generally do not provide extensive recitations of the basis of their everyday
observations and given that the veracity of persons supplying anonymous tips is ‘by
hypothesis largely unknown, and unknowable.’”), discussing Illinois v. Gates, 462
U.S. 213, 237 (1983). Cf. United States v. Wells, 223 F.3d 835, 839–40 (8th Cir.
2000) (finding no probable cause where the anonymous caller “did not report any
firsthand information or intimate details,” the caller’s description was “too broad,”
and the police were able to corroborate only “innocent details”). However, the police
corroborated the tip by conducting a lawful trash-pull search. See California v.
Greenwood, 486 U.S. 35, 41–42 (1988) (holding no Fourth Amendment right to
privacy in trash left in public areas); United States v. Gabrio, 295 F.3d 880, 882–83
(8th Cir. 2002) (“An informant’s tip can be sufficient to establish probable cause if
. . . the tip ‘is corroborated by independent evidence.’”); United States v. Thurmond,
782 F.3d 1042, 1044 (8th Cir. 2015) (“[I]tems found in a trash pull, standing alone,
may be sufficient to establish probable cause.”), discussing United States v. Briscoe,
317 F.3d 906, 908 (8th Cir. 2003).

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The citizen’s tip and marijuana residue, alone, provided a substantial basis for
probable cause. In Briscoe, 40 marijuana seeds and 25 stems from a trash pull,
standing alone, sufficiently established probable cause for a residential search
warrant. Briscoe, 317 F.3d at 908. While the residue here is less—0.027 grams—
it shows recent possession of marijuana (then illegal under both federal and
Nebraska law), providing a fair probability that the residence had a larger quantity.
Cf. United States v. March, 91 F.4th 975, 976 (8th Cir. 2024) (finding two marijuana
stems from a trash pull sufficient to suggest “ongoing marijuana consumption inside
the residence”). The marijuana residue coupled with the citizen’s tip sufficiently
established probable cause. See United States v. Gonzalez-Rodriguez, 239 F.3d 948,
951 (8th Cir. 2001) (finding methamphetamine residue from a trash pull with a
reliable confidential informant’s tip sufficiently established probable cause for a
residential search warrant); United States v. Hohn, 8 F.3d 1301, 1302, 1307 (8th
Cir. 1993) (finding drug-related items testing positive for meth from a trash pull with
a confidential informant’s tip sufficient to establish probable cause for a residential
search warrant). Cf. March, 91 F.4th at 976–77 (finding two marijuana stems from
a trash pull and an officer’s statements that firearms were stored at the defendant’s
residence sufficient for the Leon good-faith exception to apply).
Together with the unfired ammunition in the glove, the torn-off piece of a
ziplock baggie (evidence of drug trafficking), the gang-related activity in the area,
and Baling’s and Dilang’s felon status, the issuing judge had a substantial basis to
find probable cause. See Thurmond, 782 F.3d at 1045 (finding an affidavit
established probable cause with the defendant’s prior criminal history, two
marijuana roaches, and smoking materials from a trash pull); United States v. Smith,
581 F.3d 692, 694 (8th Cir. 2009) (holding an affidavit established probable cause
with the defendant’s prior drug conviction and trash-pull evidence revealing
“evidence of illegal drug activity”); United States v. Allebach, 526 F.3d 385, 387
(8th Cir. 2008) (finding an affidavit established probable cause with cocaine residue
and drug paraphernalia from a trash pull). The district court did not err in denying
Baling’s motion to suppress.

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III.
Baling argues that the district court abused its discretion in denying his motion
for severance. He bases this on evidence admitted against Jock. At trial, the
government introduced logs of Jock’s emails to prisoners and his payment to Baling,
in order to show Jock knew he was selling or disposing of a firearm to a convicted
felon: Baling. These logs indicated that Baling was incarcerated at least 12 days,
but showed nothing about the name or nature of his incarceration. Baling claims
that Federal Rule of Evidence 403 and Old Chief prohibit this evidence, requiring
severance of his trial.
Multiple defendants may be tried together “if they are alleged to have
participated in the same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses.” Fed. R. Crim. P. 8(b). “There is
a preference in the federal system for joint trials of defendants who are indicted
together.” Zafiro v. United States, 506 U.S. 534, 537 (1993). If joinder appears
prejudicial, the district court may “sever the defendants’ trials.” Fed. R. Crim. P.
14(a). This court reviews the district court’s denial of a motion for severance for an
abuse of discretion. United States v. Warfield, 97 F.3d 1014, 1018 (8th Cir. 1996).
A district court can abuse its discretion in denying severance “only if there is
a serious risk that a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about guilt or
innocence.” Zafiro, 506 U.S. at 539. “Only in an unusual case . . . will the prejudice
resulting from a joint trial be substantial enough to outweigh the general efficiency
of joinder.” United States v. Huggans, 650 F.3d 1210, 1221 (8th Cir. 2011). To
show the “severe or compelling prejudice”—necessary for an abuse of discretion—
a defendant must “affirmatively demonstrate that the joint trial prejudiced his right
to a fair trial.” Warfield, 97 F.3d at 1018. Because Baling, Dilang, and Jock were
“jointly indicted on similar evidence from the same or related events,” Baling must
show “something more than the mere fact that he would have had a better chance for
acquittal had he been tried separately.” United States v. Oakie, 12 F.3d 1436, 1441

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(8th Cir. 1993). Baling must show that “his defense was irreconcilable with that of
the codefendant or that the jury was unable to compartmentalize the evidence.”
United States v. Casteel, 663 F.3d 1013, 1018 (8th Cir. 2011).
Baling can show neither. He fails to demonstrate any prejudice was
“substantial enough to outweigh the general efficiency of joinder.” See id. at 1019.
The government presented overwhelming evidence to show Baling committed the
crimes charged only against him. This independent evidence, not the mention of
Baling’s incarceration, supported the jury’s verdict. Even if prejudice existed here,
Rule 14 “does not require severance”; “rather, it leaves the tailoring of the relief to
be granted, if any, to the district court’s sound discretion.” See Zafiro, 506 U.S. at
538–39. The district court limited any risk of prejudice with its instructions:
As you know, there are three defendants in this trial: Baling Dat, Dilang
Dat, and Jany Jock. Each defendant is entitled to have his case decided
solely on the evidence which applies to him. Some of the evidence in
this case may only be considered against fewer than all defendants; you
may not consider that evidence against the other defendant or
defendants.
. . . .
You will hear evidence that multiple defendants were previously
convicted of a crime because that is an element of multiple offenses
charged in the Superseding Indictment. This evidence, however, does
not mean that the defendant committed any of the crimes charged in
this case. You may not consider any defendant’s prior conviction as
evidence that he committed any of the charged offenses in this case.
See id. at 539 (stating limiting instructions “often will suffice to cure any risk of
prejudice”). This case is not unusual enough “to outweigh the general efficiency of
joinder.” See Huggans, 650 F.3d at 1221; United States v. Davis, 534 F.3d 903,
917 (8th Cir. 2008) (stating an argument that “some of the evidence admissible
against one of the defendants was damaging to” the rest “is not enough to require
separate trials”); United States v. Delpit, 94 F.3d 1134, 1143 (8th Cir. 1996)

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(“Severance is not required merely because evidence which is admissible only
against some defendants may be damaging to others . . . .”).2
Baling believes that the Old Chief case prohibits the mention of his
incarceration. Generally, a criminal defendant may not, through a Rule 403
objection, “stipulate or admit his way out of the full evidentiary force of the case as
the Government chooses to present it.” Old Chief v. United States, 519 U.S. 172,
186–87 (1997). Old Chief, however, is a narrow exception: A district court abuses
its discretion if it admits evidence of the “name or nature” of the defendant’s prior
conviction for the purpose of proving only felon status where the defendant is willing
to stipulate to that fact. See id. at 191–92. Baling thinks that, absent joinder, his
felon-status stipulation would have foreclosed the mention of his incarceration. See
Zafiro, 506 U.S. at 539 (Severe prejudice “might occur when evidence that the jury
should not consider against a defendant and that would not be admissible if a
defendant were tried alone is admitted against a codefendant.”).
Old Chief, however, does not apply here because any facts beyond Baling’s
felon status were not introduced to prove Baling was a felon, but to show Jock’s
mens rea. See United States v. Hill, 249 F.3d 707, 713 (8th Cir. 2001) (stating “the
limited rule of Old Chief disappears,” if the defendant’s previous crime is introduced
for any reason other than showing his status as a felon). “[A]bsent the unusual
circumstance of prior criminal status, the Government is free to offer its evidence as
it sees fit.” United States v. Becht, 267 F.3d 767, 774 (8th Cir. 2001). The
government’s mention of incarceration is not what Old Chief prohibits. See Old
Chief, 519 U.S. at 174, 180.
The district court did not abuse its discretion in denying Baling’s motion to
sever.
2 Dilang briefly asserts that he was prejudiced by the joint trial. He also fails
to affirmatively show severe or compelling prejudice.

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IV.
The defendants argue that the district court erred in admitting the
government’s Exhibit 128, a 78-slide PowerPoint with photos, video, text messages,
search histories, and location data from the defendants’ phones.
For Baling, Exhibit 128 revealed text messages from February 2020 to
October 2021 about the communal sharing of firearms, along with photos of him in
nitrile gloves, dual wielding firearms.
For Dilang, Exhibit 128 displayed the following text messages he sent from
October 2020 to January 2022:
• “What you got on the burner we need a good gun case [s__t] go
left!”;
• “Just pull up. I got a glock on me”;
• “Yup! We have to get an apartment & glocks today?”;
• “I was just about to order that money bag and buy Bros Glock with
the jug money.”;
• “I wanna grab this glock tonight but it’s 600 loan me 400 an I’ll give
it back Friday?”;
• “Loan me 1k I gotchu back Oct. 29th? (You can hold the Glock
until I give your money back)”;
• “I ain’t going there wit out the pole”;3
• “I gotchu, but I’m lit an i won’t get in traffic without the gun”;
3 Explained at trial as a reference to a “firearm.”

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• “I’ll be hitting the gun store then that same location from
yesterday.”;
• “Can I put my gun up”;
• “Can you spot me $500 so I can get this switch for my glock?”
Dilang messaged Jock, “This [n___a] Reese sent bread so you can grab the ammo!
An this [n___a] Jay sent bread and wants me to put a ticket in for him can you help
me?” Other messages revealed Dilang’s involvement in the communal sharing of
firearms. The Exhibit’s slides also showed images from Dilang’s phone of firearms,
him possessing the Ruger-57 and Glock 19, and using Trip Set gang hand signs.
For Jock, Exhibit 128 displayed his messages from July 2020 to January 2022.
As discussed, prison communication and payment logs (independent of Exhibit 128)
showed that he knew Baling was a prohibited person. Knowing this, Jock messaged
Baling, “Ya gonna grab the pole?” Dilang messaged Jock about his parole-mandated
drug test, suggesting Jock also knew about his prohibited status. A few months after
this text, Dilang messaged Jock, “looks like we buying weapons this weekend.”
Other messages highlighted Jock’s part as a purchaser of firearms in the communal-
sharing conspiracy. One image from Jock’s phone showed Baling passing a firearm
to the photographer. Another showed nitrile gloves in Jock’s room. The Exhibit
revealed Jock’s search history, including searches for firearms, drum magazines,
and: “How to prove a straw purchase”; “what happens after you buy a gun”; “Straw
purchase investigation”; “can police come to home to verify gun is there”; “straw
purchase”; and “Straw purchase convictions.” Exhibit 128 also used his location
data to show he physically purchased firearms.
A.
This court reviews the district court’s admission of evidence for an abuse of
discretion. United States v. Sorensen, 148 F.4th 992, 996 (8th Cir. 2025).

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Defendants argue that the admission of Exhibit 128 violates Federal Rule of
Criminal Procedure 16. “Upon a defendant’s request, the government must permit
the defendant to inspect . . . documents, data, photographs, . . . or copies or portions
of any of these items, if the item is within the government’s possession, custody, or
control,” and “the item is material to preparing the defense,” or “the government
intends to use the item in its case-in-chief at trial.” Fed. R. Crim. P. 16(a)(1)(E).
The night before trial, the government submitted Exhibit 128 to the court and
defendants. The government attributed the late submission to working on the
Exhibit until the eve of trial, adding it was uncertain if the case was going to trial.
The district court, at a hearing, believed the government’s explanation. Excusing
the violation of its scheduling order, the district court admitted Exhibit 128 as
substantive evidence under Federal Rule of Evidence 1006. The defendants assert
that the late submission denied them the opportunity to review content “material to
preparing the defense” that the government used “in its case-in-chief at trial.” See
id.
The district court’s admission of Exhibit 128 did not violate Rule 16. Over
two years earlier, the government gave the underlying data to the defendants. While
the district court was initially concerned with the late submission, it later stated, “I’m
very confident that the attorneys who reviewed the cell phone data would have [seen]
these photos and these texts and underst[oo]d that that’s absolutely something the
government would focus on.” The district court also found that reviewing Exhibit
128 was not an “onerous task” because each slide showed a Cellebrite link
identifying the data’s location in the phones. Importantly, the defendants never
moved for a continuance (despite their previous requests for other reasons), vitiating
their claim of prejudice. See Patterson v. F.W. Woolworth Co., 786 F.2d 874, 879–
80 (8th Cir. 1986) (“[A]ny claim of prejudice or surprise is vitiated by plaintiffs’
failure to request a continuance.”). The district court did not abuse its discretion in
admitting Exhibit 128 over the defendants’ Rule 16 objections. See United States v.
Maloney, 102 F.4th 904, 915–16 (8th Cir. 2024).

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B.
“This court reviews de novo the district court’s interpretation and application
of the rules of evidence, and reviews for an abuse of discretion the factual findings
supporting its evidentiary ruling.” American Mod. Home Ins. Co. v. Thomas, 993
F.3d 1068, 1071 (8th Cir. 2021).
Defendants argue that Exhibit 128 is not a summary under Rule 1006. “The
court may admit as evidence a summary, chart, or calculation offered to prove the
content of voluminous admissible writings, recordings, or photographs that cannot
be conveniently examined in court, whether or not they have been introduced into
evidence.” Fed. R. Evid. 1006(a). “Summaries are properly admissible when (1)
they fairly summarize voluminous trial evidence; (2) they assist the jury in
understanding the testimony already introduced; and (3) the witness who prepared it
is subject to cross-examination with all documents used to prepare the summary.”
United States v. Fechner, 952 F.3d 954, 959 (8th Cir. 2020). “[T]he evidence
summarized within it need[] only [] be admissible, not already admitted.” Id.
Exhibit 128 is admissible as a summary. The defendants’ phones had several
gigabytes of information. The final version of Exhibit 128 compiled relevant and
accurate data from the phones, summarizing voluminous evidence. The slides
circled certain text messages and search histories. For the text messages, the left
side of the slides re-stated the circled texts in a larger font, with the date, sender, and
recipient. Other slides had short descriptions for images, or arrows pointing to
relevant portions of images. The Exhibit fairly summarized voluminous trial
evidence. See United States v. Bishop, 264 F.3d 535, 547 (5th Cir. 2001) (“A
summary may include only evidence favoring one party, so long as the witness does
not represent to the jury that he is summarizing all the evidence in the case.”); Wright
& Miller, Federal Practice and Procedure § 8044, at 549 (“Since a summary by
its very nature leaves out portions of the source material, accuracy in this context is
a relative concept. . . . While parties are permitted to provide [a] summary of
favorable evidence, the summary should not include argumentative or otherwise

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unfairly prejudicial matter.”); 2 McCormick on Evidence § 241, at 187 (9th ed.)
(“So long as they are accurate, however, such summaries may present only one
party’s side of the case.”).
Exhibit 128 satisfies the other summary elements. It assisted the jury’s
understanding of the underlying conspiracy between the defendants to unlawfully
possess and transfer firearms. Testimony about the conspiracy was introduced
before Exhibit 128’s admission to the jury. And, Detectives Michael Curd and
Kristen Pignotti, who extracted, compiled, and authenticated the phone data, testified
at trial and were available for cross-examination.
The district court did not abuse its discretion in admitting Exhibit 128 under
Rule 1006. See Fechner, 952 F.3d at 959–60 (finding no abuse of discretion in
admitting an exhibit summarizing 36 pornographic videos not shown to the jury,
providing “the names, the date created, and a brief description”); United States v.
Possick, 849 F.2d 332, 339 (8th Cir. 1988) (stating “Rule 1006 does not require that
it be literally impossible to examine all the underlying records, but only that in-court
examination would be an inconvenience”); United States v. Dunnican, 961 F.3d
859, 873 (6th Cir. 2020) (stating “Rule 1006 was designed to govern” scenarios
where phone extractions yield a quantity of data “so unwieldy and robust that it
would take multiple months . . . for a court to examine”).
C.
Defendants challenge the district court’s admission of the text messages
within Exhibit 128 as co-conspirator statements. While the government here did not
charge the defendants with a conspiracy, it presented evidence of one. See United
States v. Zackery, 494 F.3d 644, 648 (8th Cir. 2007) (stating co-conspirator
statements may be admitted as non-hearsay “even in the absence of a conspiracy
charge so long as there is independent evidence of concert of action”).

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Hearsay is an out-of-court statement used “to prove the truth of the matter
asserted.” Fed. R. Evid. 801(c). Under Federal Rule of Evidence 801(d)(2)(E),
however, statements “offered against an opposing party” that were “made by the
party’s coconspirator during and in furtherance of the conspiracy” are not hearsay.
To admit statements under Rule 801(d)(2)(E), the government must “establish by a
preponderance of the evidence . . . ‘that there was a conspiracy involving the
declarant and the nonoffering party, and the statement was made during the course
and in furtherance of the conspiracy.’” United States v. Mayfield, 909 F.3d 956,
960 (8th Cir. 2018), quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987).
Procedures set forth in Bell instruct district courts should conditionally admit alleged
co-conspirator statements after the defendants invoke Bell in their objection, subject
to an on-the-record ruling that the statement is admissible under Rule 801(d)(2)(E).
United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978). These procedures should
“transpire out of the hearing of the jury.” Id.
Defendants argue that the district court erred in its factfinding and ultimate
decision to admit these statements. “[T]he proper standard is to review the district
court’s Rule 801(d)(2)(E) factfinding for clear error, and then review the ultimate
decision to admit or exclude the statement for abuse of discretion . . . .” Mayfield,
909 F.3d at 961.
Defendants argue that the district court erred in its Rule 801(d)(2)(E)
factfinding. They argue that Exhibit 128 failed to show a conspiracy, and that the
statements in the Exhibit were the government’s only evidence of a conspiracy. See
United States v. Ramirez-Martinez, 6 F.4th 859, 867 (8th Cir. 2021) (“[T]he
government must produce independent evidence outside of the statements
themselves to establish the existence of the conspiracy. Notably, this ‘independent
evidence’ can be ‘completely circumstantial.’” (internal citation omitted)). These
arguments fail. Overwhelming evidence inside and independent of Exhibit 128
showed that the defendants conspired to unlawfully possess and transfer firearms.
The district court did not clearly err in its factfinding.

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Defendants also argue that the district court failed to follow the Bell
procedures. This argument fails because (1) the district court complied with Bell,
and (2) the defendants were not prejudiced.
Before Exhibit 128’s admission, during trial, the district court welcomed the
defendants’ objections. The defendants raised several hearsay objections to the text
messages. Baling, objecting, argued this was “not a conspiracy case,” and that the
government could not use Rule 801(d)(2)(E). The government responded:
No. With respect to co-conspirator statements, those can come in.
They don’t have to be charged as co-conspirators. They’re still co-
conspirator statements and, in fact, the Indictment alleges that in effect.
That Jany Jock transferred a firearm to Baling Dat. So whether or not
they’re charged in a conspiracy has nothing to do with co-conspirator
statements.
Despite this, the defendants neither invoked Bell nor requested a Bell ruling. The
district court then raised concerns about three slides where the individual in the
image was unidentifiable. The government agreed to remove these three slides. The
district court continued:
[T]he other evidentiary objections that have been made to specific
pages, you know, I’m going to overrule them to the extent that the --
that the United States has agreed to withdraw some of the pages. They
are going to take those out, . . . and we’ll just tell the jury that due to
my ruling some of the pages are out.
. . . .
I’m gonna allow the parties to again object once the . . . exhibit is in
final after the United States takes out the pages we’ve discussed and
any other pages they decide to take out after this discussion . . . .
The district court brought back the jury. The trial continued.

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Later during the trial, the district court revisited its Exhibit-128 ruling, stating:
[R]egarding Exhibit 128, the defendants objected to many of the
government’s slides. . . . The defendants objected on the grounds of
relevance, Rule 403, and Rule 404. The defendants also sought a
limiting instruction to the jury to not consider evidence that may be
related to a co-defendant when it is unrelated to a certain defendant.
I just wanna note from the outset that in the vast majority of trials such
as this, some of the evidence in Exhibit 128, along with many other
items of evidence that have already been admitted in this case, generally
are not needed and may not be offered and may not be properly
proffered because in most of these trials that I presided over -- and
actually all of them maybe but this one -- the defendants have entered
into stipulations that make such -- certain evidence unnecessary.
Here, we of course have a couple Old Chief stipulations but we don’t
have any other stipulations. And as a result of that, the government has
to meet its burden; and the burden it has to meet is -- requires additional
evidence that normally doesn’t have to come in so I’m just gonna note
that. So given the circumstances here, the government feels compelled
and I’m -- I’m compelled to consider evidence that many times doesn’t
need -- doesn’t need to be considered and doesn’t need to be put into
evidence.
. . . .
. . . . Although it would have been optimal if the government had
provided the exhibit before the day before trial, there are reasons why
they did not. And since it was simply the compilation of evidence
already provided, I don’t find any prejudice there anyway.
Finally, the last thing I wanna talk about with regard to this. Over the
weekend I looked at the exhibits again. . . . [T]he notice of the funeral
that was on [slide] 56. I have decided to ask that that slide be removed
in addition to the other ones I already stated.

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The government agreed to remove the slide. The district court concluded:
So there’s my -- that’s all I have to say on that. Okay. So given that,
that is my ruling. I’ve already spent a lot of court time on this exhibit,
and everyone’s had an opportunity to address this issue numerous times
so I don’t intend to -- to spend any more time on that so -- but I wanna
do ask if there’s anything besides that issue that the -- that we need to
address before bringing in this jury and continuing this trial.
(emphasis added). Defendants mentioned their previous hearsay objections, which
the district court found did not affect its ruling. The defendants still neither invoked
Bell nor requested a Bell ruling. The four slides were blacked out.
Later, when the government was authenticating the phone extractions, the
defendants argued against the government’s use of Rule 801(d)(2)(E), invoking Bell.
Responding, the government argued that a conspiracy existed, and stated at the close
of its evidence it would request a Bell ruling. The district court admitted the phone
extractions, but did not allow them to go to the jury. The district court added:
Counsel, one thing that was mentioned in the sidebar is the United
States is going to seek to use Federal Rule of Evidence 801(d)(2)(E) as
one ground to admit some of the statements that were made in Exhibit
128 which is forthcoming and will be admitted likely unless there’s a
problem with -- with its admission that’s not anticipated.
. . . . And I will intend to conditionally admit such information subject
to a final declaration or final decision under United States v. Bell with
regard to that matter.
After authentication, the government offered Exhibit 128. The defendants
made their Rule 801 objections, which the district court overruled. The district court
conditionally admitted Exhibit 128, allowing the government to publish it to the jury.
Toward the end of trial, the district court made its Bell ruling. It found Exhibit
128 admissible as non-hearsay:

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. . . . Here, the government’s evidence shows by a preponderance of
the evidence that the defendants were members of a conspiracy to
unlawfully possess and transfer weapons. The out-of-court statements
presented by the government in Exhibit 128 were related to the
unlawful transfer, receipt, and possession of firearms that were thus
“made during the course of and in furtherance of the conspiracy.” Thus,
. . . Rule 801(d)(2)(E) applies to the out-of-court statements made by
the defendants. Accordingly, these statements are admissible against
all defendants.
. . . .
. . . . Evidence of other defendants’ possession or transfer of firearms
is admissible due to the existence of the conspiracy. As discussed, there
is sufficient evidence of an unlawful firearm conspiracy between the
defendants, meaning any acts in furtherance of that conspiracy are
admissible against the others. . . .
However, the government did not present any evidence of a conspiracy
to possess or distribute cocaine. Accordingly, the Court will give a
limiting instruction as to the cocaine . . . .
Since the district court conditionally admitted the statements in Exhibit 128
after Bell’s invocation, and “made an explicit on-the-record ruling that the
government had met its burden and that the challenged statements were admissible,”
outside the presence of the jury, it complied with the Bell procedures. See United
States v. England, 966 F.2d 403, 408 (8th Cir. 1992); United States v. Craig, 94
F.4th 752, 756 (8th Cir. 2024). Cf. United States v. Jorgensen, 144 F.3d 550, 561
(8th Cir. 1998) (“Prosecutors who offer coconspirator statements under the
nonhearsay exception have a duty to protect their record by making sure they request
final Bell rulings at the close of all the evidence.” (emphasis added)).
Even if the district court erred in implementing Bell, its procedures “are
flexible and do not require reversal for failure to follow . . . absent a showing of
prejudice.” Craig, 94 F.4th at 756. The defendants were not prejudiced by the
government’s use of Rule 801(d)(2)(E). The government stated its intention to admit

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the statements as non-hearsay under the rule, and the text messages raised an obvious
co-conspirator-statement issue. As noted, the defendants had ample notice of
Exhibit 128’s content, and the record shows they had ample opportunity to request
a Bell ruling and to argue against admission. The defendants were also not
prejudiced because the record shows “overwhelming evidence of a conspiracy and
that all of the statements were made by co-conspirators in furtherance of the
conspiracy.” See United States v. Johnson, 535 F.3d 892, 897 (8th Cir. 2008).
The district court did not abuse its discretion in admitting Exhibit 128’s
firearm-conspiracy evidence under Rule 801(d)(2)(E).
D.
Defendants argue that the district court erred in ruling Exhibit 128’s contents
admissible as intrinsic evidence.
Federal Rule of Evidence 404(b) “excludes evidence of specific bad acts used
to circumstantially prove a person has a propensity to commit acts of that sort.”
United States v. Guzman, 926 F.3d 991, 999 (8th Cir. 2019). Rule 404(b) does not
apply to intrinsic evidence. United States v. Payne-Owens, 845 F.3d 868, 872 (8th
Cir. 2017). “Intrinsic evidence tends logically to prove any element of the crime
charged, and is admissible as an integral part of the immediate context of the crime
charged.” United States v. Dunn, 76 F.4th 1062, 1067 (8th Cir. 2023) (quotation
omitted).
Exhibit 128’s content was intrinsic evidence. The text messages, photos,
video, search history, and location data supported (1) Baling’s and Dilang’s ongoing,
unlawful possession of firearms, and (2) the conspiracy between the defendants to
unlawfully possess and transfer firearms. All this evidence was “inextricably
intertwined as an integral part of the immediate context of the crime[s] charged.”
See United States v. Rolett, 151 F.3d 787, 790 (8th Cir. 1998) (quotation omitted);
Guzman, 926 F.3d at 1000 (stating intrinsic evidence includes “evidence that merely

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‘completes the story’ or provides context to the charged crime”). The defendants
believe that their years’ old phone data are propensity evidence and too remote.
Baling’s and Dilang’s “prior possession of a firearm is directly relevant to proving
later possession of that same weapon because it helps establish ownership or control
of the weapon.” Dunn, 76 F.4th at 1067 (cleaned up). Jock’s search history was
integral to showing his guilt in purchasing firearms for prohibited persons.
Collectively, Exhibit 128’s content tended logically to prove that the defendants
were guilty of the crimes charged, and was thus not subject to Rule 404(b). See id.
The district court did not abuse its discretion in ruling that Exhibit 128’s
probative value was not substantially outweighed by the danger of unfair prejudice.
See Fed. R. Evid. 403. While the content was prejudicial in tending to prove the
existence of the conspiracy to unlawfully possess and transfer firearms, it was “not
unfairly prejudicial because [it was] directly relevant to the charged offenses.” See
United States v. Agena, 138 F.4th 1063, 1070 (8th Cir. 2025).
Exhibit 128’s content was also admissible as intrinsic evidence.
E.
Defendants argue that Exhibit 128 violated their Sixth Amendment
Confrontation Clause rights. “The Sixth Amendment’s Confrontation Clause
guarantees a criminal defendant the right to confront the witnesses against him.”
Smith v. Arizona, 602 U.S. 779, 783 (2024). The Confrontation Clause bars only
testimonial hearsay statements. Id. at 800. The statements in Exhibit 128 were either
casual remarks made to acquaintances, or co-conspirator statements made in
furtherance of a conspiracy and properly admitted under Rule 801(d)(2)(E). Since
these statements are nontestimonial, the Confrontation Clause does not apply. See
United States v. Lee, 374 F.3d 637, 643 (8th Cir. 2004) (“[C]asual statements to an
acquaintance are not testimonial. Nor are statements to a coconspirator . . .
testimonial.” (internal citation omitted)).

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F.
The district court properly admitted Exhibit 128 under Rule 1006, Rule
801(d)(2)(E), and as intrinsic evidence.
V.
Defendants argue that the district court erred in admitting gang-related
evidence, asserting it is irrelevant and unduly prejudicial.
Before trial, the defendants moved for an in limine order prohibiting evidence
of their membership in the Trip Set gang, invoking Rule 404(b). The district court
ruled that the gang-related evidence was intrinsic, and thus admissible, subject to
Rule 403 balancing.
At trial, after the conditional admission of Exhibit 128, Detective Ullery
testified as an expert on the Trip Set gang. Before he testified, defendants objected
“to any testimony above and beyond what [the district court] ha[d] authorized” in its
in limine order. The government responded that Ullery’s testimony would provide
context to the defendants’ conspiracy to unlawfully possess and transfer firearms.
The district court overruled the objection, “If you think what happens is going
beyond my order, I think you have to object ‘cause I don’t know unless you object.”
Defendants did not object to most of Detective Ullery’s testimony. He
testified about: the general motives for someone to join a gang; the history of the
Trip Set gang; where it operated; crimes associated with it; the gang’s colors and
hand signs; its terminology; its allies and foes; and that the defendants were
members. The defendants objected to the general motives to join a gang for “lack
of foundation,” which was overruled, and to whether Baling was in the Trip Set
gang, which was sustained.

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Asked if Dilang and Jock were members of the Trip Set gang, Detective Ullery
answered “Yes.” For Dilang, Detective Ullery added, “I’ve seen [him] in various
posts [use] Trip Set gang hand signs.” For Jock, he added, “Last year on his
Facebook when it says a job or works for, it said works for Trip Set.” No objections
were made about their membership. Baling objected when Detective Ullery testified
that at age 13, Baling admitted joining Trip Set. The district court noted the ample
evidence of gang membership and gave a limiting instruction, telling the jury not to
consider that testimony.
Later, on redirect, the prosecutor again asked if Baling was a member.
Detective Ullery answered “Yes.” The prosecutor added, “So setting aside any
interview that was done, what do you base that on?” Detective Ullery responded,
“Prior criminal activity such as what you were saying, act in concert with other
individuals that are Trip Set gang members, prison time. Just ongoing investigations
where he comes up and others within the Trip Set gang keep coming up.” Baling
did not object to this testimony. The prosecutor asked, “Is that also true of Dilang?”;
and then “Is it for those very same reasons?” Detective Ullery answered both “Yes.”
Dilang objected to the second question—referencing Rules 401, 403, and 404, as
well as his felon-status stipulation—which the district court overruled. A similar
sequence occurred for Jock, to which he offered an objection based on Rules 401,
403, and 404. The district court also overruled his objection.
The defendants believe that the admission of any of the gang-related evidence
is a reversible error.
This court gives substantial deference to district courts’ evidentiary rulings.
United States v. Manning, 738 F.3d 937, 942 (8th Cir. 2014). Ordinarily, this court
reviews these rulings for abuse of discretion. United States v. Gant, 721 F.3d 505,
509 (8th Cir. 2013). Failing to properly preserve an error, however, results in plain-
error review. United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc).
“To preserve an error for appellate review, an objection must be timely and must
clearly state the grounds for the objection.” Id. (cleaned up). Plain-error review

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requires the defendant to show “(1) error, (2) that is plain, and (3) that affects
substantial rights.” Id. at 550, quoting Johnson v. United States, 520 U.S. 461, 467
(1997). Even if a defendant shows these three elements, this court can exercise
jurisdiction over an unpreserved error only if “the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (citation omitted). To
the extent the defendants failed to object, this court reviews for plain error. See
United States v. Looking Cloud, 419 F.3d 781, 785 (8th Cir. 2005).
Gang-related evidence is intrinsic if it establishes a conspiracy or rebuts
“codefendants’ innocent explanations of their relationships with one another.” See
United States v. Parker, 871 F.3d 590, 598 (8th Cir. 2017), quoting United States v.
Street, 548 F.3d 618, 632 (8th Cir. 2008). Gang-related evidence is inadmissible “if
its purpose is solely to prejudice the defendant or prove his guilt by association with
unsavory characters.” United States v. Ellison, 616 F.3d 829, 833 (8th Cir. 2010)
(quotation omitted). “General evidence as to gang culture, aimed at simply
establishing a violent or lawless culture, is often unduly prejudicial and can be
irrelevant.” Payne-Owens, 845 F.3d at 873 (alteration omitted).
Here, there were two types of gang evidence. First was specific evidence of
the defendants’ gang membership from Exhibit 128 and Detective Ullery’s
testimony. The second type was general gang evidence that consisted of Ullery’s
testimony about gangs generally, and the general criminal activities of the Trip Set
gang and its members.
A.
The district court did not err, let alone plainly err, under Rule 404(b) in
admitting the specific gang evidence. The defendants’ Trip Set membership
provided “a total picture” for the police’s investigation of 4704 Ellison, the search
warrant, the defendants’ relationship with one another, their phones’ content, and
their motives to possess and transfer guns and ammunition. See id. at 872–73;
United States v. Johnson, 28 F.3d 1487, 1497 (8th Cir. 1994) (“Specific and

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circumscribed evidence of gang association may be necessary in a trial to show the
nature and extent of the defendants’ association, which in turn bears on whether they
conspired.” (cleaned up)). Here, the evidence of the defendants’ Trip Set
membership was “an unavoidable incident of presenting other permissible
evidence.” See Street, 548 F.3d at 632 (emphasis in original). The specific gang
evidence “tended to make it more likely” that they conspired to unlawfully possess
and transfer firearms and committed the crimes charged. See Dunn, 76 F.4th at
1067; United States v. LaDue, 561 F.3d 855, 858 (8th Cir. 2009) (“[W]here acts are
inextricably intertwined with the charged crime, they are not . . . merely character
evidence governed by Federal Rule of Evidence 404(b).”). The specific gang
evidence was thus intrinsic to the crimes charged and not subject to Rule 404(b).
The district court also did not err, let alone plainly err, in its Rule 403
balancing for the specific gang evidence. This evidence was highly probative
because “it spoke to the key issue[s] at trial.” See Payne-Owens, 845 F.3d at 874,
discussing Johnson, 28 F.3d at 1497. Because the primary effect of the gang-related
evidence was not to prove guilt by association, but to provide context to disputed
issues, the danger of unfair prejudice did not substantially outweigh its probative
value. See Dunn, 76 F.4th at 1067–68.
The district court did not abuse its discretion in admitting the specific gang
evidence.
B.
The general gang evidence is concerning. Asked about the Trip Set gang’s
activities, Detective Ullery responded, “Robberies, home invasions, burglaries,
narcotics trafficking, gun trafficking, felony assaults, homicides, thefts.” The
prosecutor asked: “And -- and just to be clear, we’re talking about the gang, the Trip
Set gang in general, we’re not ascribing any of that information to the three
defendants here; correct?” Detective Ullery responded, “That’s correct, yeah, sorry.
That’s correct. That’s just the Trip Set gang.” Asked about Trip Set’s terminology,

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Detective Ullery testified to general gang evidence. He said, in part, “They call
themselves Taliban babies. They call themselves Section 8 Taliban. Burt Street
Demons.” These terms were not otherwise mentioned at trial to prove the
defendants’ membership. Asked about Trip Set’s allies, Detective Ullery identified
other Omaha gangs. Asked about their foes, he responded, “Crips for sure. 40th
Ave., 44th Ave., Hilltop, Pleasantview Crips.” Evidence of Trip Set’s general inter-
gang relations was not relevant to the case against the defendants, ascribing to them
an unnecessary association with unsavory characters. Detective Ullery also
provided testimony about the general motives to join a gang. This testimony, unlike
the aforementioned, did not go to the violent or lawless culture of gangs.
In Street, the government’s expert witness, Detective Steve Cook, provided
improper testimony about the “the violent, lawless propensities of outlaw
motorcycle gangs.” Street, 548 F.3d at 629. There, half of Cook’s testimony was
“devoted to an alarming portrayal of gang culture in general and of the local El
Forasteros gang in particular.” Id. His testimony discussed the history and inter-
gang relations of biker gangs—going as far back as 1947 and spanning several
states—emphasizing their violent nature. Id. at 629–30. Cook said some gangs in
“the biker community” “will blow each other’s vehicles up, shoot, [and] assault” to
resolve their issues, ascribing to them generally a territorial, violent nature. Id. For
the El Forasteros specifically, his testimony labeled them as a group of
“misogynistic, hardened outlaws.” Id. at 631. Importantly, Cook’s gang-related
testimony was “in great part completely irrelevant.” See id. at 631–33. It neither
related to the criminal charges nor to the particular facts of the case. Id. No evidence
existed showing that the defendant there had ever been a member of the El Forasteros
or any gang. Id. The testimony was also excessive and unduly prejudicial. Id.
Equally important, the Street “case was close.” Id. at 629. “His first trial ended in
a hung jury; the second trial ended in acquittal on two of three counts; and in the
penalty phase five jurors revealed lingering doubts as to the one count on which
Street was convicted.” Id. at 633. This court thus concluded that the “admission of
evidence on gang culture and attitudes” was a reversible error. Id.

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In Roark, this court also found reversible the admission of general gang
evidence about a biker gang. See United States v. Roark, 924 F.2d 1426, 1434 (8th
Cir. 1991). There, the witnesses’ testimony included: Hells Angels’ illegal drug
activities; its operation of meth labs; its desire to establish rural drug labs; and its
members dealing in meth and cocaine. Id. at 1430–31. While the defendant was a
member, the gang testimony went not to his guilt, but to the general reputation of
the gang. Id. at 1433. This court concluded that, despite the district court’s limiting
instruction, the witnesses’ gang testimony was so “relentless” that “the jury could
not disregard the entire theme of the trial: guilty by association.” Id. at 1432–34.
Street and Roark illustrate that when the gang evidence is so irrelevant and
prejudicial that it permits the factfinder to adjudge the defendants guilty by
association, its admission is a reversible error. See Street, 548 F.3d at 629–33;
Roark, 924 F.2d at 1430–34; United States v. J.H.H., 22 F.3d 821, 828–30 (8th Cir.
1994). The admission of the unobjected-to general gang evidence here, however, is
not plain error.
Detective Ullery’s testimony about Trip Set’s criminal activities, unsavory
terminology, and its inter-gang relations did not affect the defendants’ substantial
rights. To satisfy the substantial-rights element of plain-error review, the defendants
must demonstrate “a reasonable probability that, but for the error, the outcome of
the proceeding would have been different.” Greer v. United States, 593 U.S. 503,
507–08 (2021) (citation omitted). “The defendant[s] ha[ve] the burden of proving
plain error, whereas the government has the burden of proving harmless error.”
Pirani, 406 F.3d at 550. See also Greer, 593 U.S. at 512 (stating “unpreserved errors
must be analyzed for plain error”); United States v. Sledge, 108 F.4th 659, 668 n.2
(8th Cir. 2024) (“Under both plain error and harmless error, the ultimate inquiry
requires a determination as to whether the error affected substantial rights . . . .”
(quotation omitted)).
The general gang evidence, while irrelevant to the defendants, did not shift
the theme of the trial to guilt by association. In Gaines, this court found the district

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court did not abuse its discretion in admitting expert testimony about how gangs
generally “are involved in illegal activity and members often possess firearms.”
United States v. Gaines, 859 F.3d 1128, 1132 (8th Cir. 2017). This court
emphasized there the general gang evidence’s brevity, its placement within a limited
amount of admissible gang evidence, and that the evidence was “well known.” Id.
While Detective Ullery’s general gang testimony was specific to Trip Set, raising
the risk of prejudice, it was brief relative to his total testimony and the eight-day
trial. And, while Detective Ullery’s erroneous statements were situated within a fair
amount of admissible gang evidence, the probative value of that evidence, unlike
Gaines, was strong. Cf. id. at 1133. See Johnson, 28 F.3d at 1497–98. Unlike
Roark, the culmination of the gang-related evidence here was not a “relentless
attempt” to convict the defendants through their association with the Trip Set gang.
Cf. Roark, 924 F.2d at 1430–34. Rather, evidence of the defendants’ membership
provided significant context to the charged crimes and the underlying conspiracy.
See Payne-Owens, 845 F.3d at 872. Also, unlike Street, this case was not close. Cf.
Street, 548 F.3d at 629–31. Overwhelming evidence—independent of Detective
Ullery’s general gang testimony—established the defendants’ guilt beyond a
reasonable doubt. See J.H.H., 22 F.3d at 829 (collecting cases) (“The improper
admission of evidence will be deemed harmless if sufficient admissible evidence
exists in the record to establish the defendant’s guilt beyond a reasonable doubt
without consideration of the inadmissible evidence.”). The defendants cannot show
a reasonable probability that, absent Detective Ullery’s general gang testimony, they
would have been acquitted. The district court thus did not plainly err in admitting
the general gang evidence.
The district court neither abused its discretion in admitting the specific gang
evidence, nor plainly erred in admitting Detective Ullery’s general gang testimony.
VI.
Dilang and Jock argue that the district court erred in finding sufficient
evidence to convict.

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“When determining whether the evidence is sufficient to support a conviction,
we view the evidence in the light most favorable to the verdict, giving it the benefit
of all reasonable inferences.” United States v. Carter, 270 F.3d 731, 734 (8th Cir.
2001). “Sufficiency review essentially addresses whether ‘the government’s case
was so lacking that it should not have even been submitted to the jury.’” Musacchio
v. United States, 577 U.S. 237, 243 (2016), quoting Burks v. United States, 437 U.S.
1, 16 (1978). Thus, this court will reverse on sufficiency grounds “only if no
reasonable jury could have found the defendant guilty beyond a reasonable doubt.”
United States v. Thomas, 877 F.3d 1077, 1079 (8th Cir. 2017).
Viewing the record most favorably to the verdict, there was overwhelming
evidence for Dilang’s and Jock’s convictions. A reasonable jury could have found
them guilty beyond a reasonable doubt. The district court did not err in denying
their motions for acquittal.
VII.
Baling and Dilang challenge their sentences.
A.
The jury found Baling guilty of possession with intent to distribute cocaine
(Count I); possession of a firearm in furtherance of a drug-trafficking crime (Count
II); and being a felon in possession of a firearm (Count III). The district court
sentenced Baling to 135 months’ incarceration on Count I; 120 months’
incarceration on Count III to run concurrently with Count I; and 60 months’
incarceration on Count II to run consecutively to all other counts.
Baling argues that the district court erred in its application of a four-level
enhancement. This court review’s an “interpretation of the Sentencing Guidelines

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de novo and a district court’s application of the Guidelines to the facts for clear
error.” United States v. Acosta, 619 F.3d 956, 961 (8th Cir. 2010).
The firearm-trafficking enhancement applies if the defendant:
(i) transported, transferred, or otherwise disposed of two or more
firearms to another individual, or received two or more firearms with
the intent to transport, transfer, or otherwise dispose of firearms to
another individual; and
(ii) knew or had reason to believe that such conduct would result in the
transport, transfer, or disposal of a firearm to an individual
(I) whose possession or receipt of the firearm would be unlawful;
or
(II) who intended to use or dispose of the firearm unlawfully.
U.S.S.G. § 2K2.1 cmt. n. 13(A) (2021). Baling asserts that there was insufficient
evidence to support the enhancement, believing the government failed to prove
anything beyond his unlawful possession of two firearms. While he emphasizes he
was not charged with trafficking firearms, or a conspiracy to do so, “[t]he district
court may consider uncharged, dismissed, and even acquitted conduct at
sentencing,” so long as it is relevant. United States v. Chambers, 878 F.3d 616, 622
(8th Cir. 2017) (per curiam). Determining what conduct is relevant is “a factually
intensive inquiry that is best left for district courts.” United States v. Hogue, 66
F.4th 756, 765 (8th Cir. 2023). The district court was in the best position to hear all
the evidence. Overwhelming evidence at trial showed Baling conspired with others
to unlawfully possess and transfer firearms. The district court neither clearly erred
in concluding Baling trafficked firearms, nor erred in finding the enhancement
applied.
Baling argues that the district court’s upward variance of 195 months
(guideline range 130–147 months) was an abuse of discretion. Upholding the
upward variance, the district court stated:

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. . . . The sentencing factors in 18 U.S.C. Section 3553(a) I believe
favor an above-guideline sentence. The offense conduct in this case is
extremely serious. The defendant had a distribution amount of cocaine
and a firearm in his possession when he was arrested. The fact that the
defendant is an armed drug dealer demonstrates his extremely
dangerous nature and poses a serious threat to the public. Even relative
to his co-defendants and co-conspirators, this defendant is particularly
culpable.
The defendant’s personal history and characteristics are just as
concerning. The defendant is a member of a criminal gang that operates
in drug distribution, unlawful weapons transfers, and street violence.
The defendant’s criminal history began when he was 13 years old . . . .
In 2013, the defendant, age 16, and other gang members were involved
in -- I believe the PSR said 29 armed robberies. . . . Despite having
received a prison sentence of eight to ten years for this conduct, the
defendant has not shown any proclivity to better himself or lead a law-
abiding lifestyle, as this case demonstrates.
The [2021] guideline range . . . is in my judgment insufficient to deter
this defendant and others who would commit these same crimes.
The Court further notes that the defendant appears to have no remorse
for what he’s done. The defendant has failed to take responsibility for
anything and that’s why he doesn’t get credit for any acceptance of
responsibility here today. I don’t believe Mr. Dat has any respect at all
for the law.
Finally, as I noted, the defendant’s guideline range would have been
higher had it been calculated using the most recent version of the
guidelines manual. That’s because the authorities in power actually
believe the guidelines from 2021 are insufficient so they changed them
and today he’d be faced with a higher guideline sentence.
. . . . Although I have -- I have properly calculated the guidelines using
the 2021 guidelines manual and I’ve properly calculated them and I am
considering those, I will note that, the most recent guideline changes
also illustrate that those who calculate the guidelines even thought the

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guidelines weren’t sufficient, and I don’t think they are either so I
happen to agree with them. . . .
Baling, in part, argues that the district court violated his rights under the Ex Post
Facto Clause for considering the higher 2024 guidelines. See United States v.
Steward, 880 F.3d 983, 985 (8th Cir. 2018) (“[W]hen the Guidelines have been
amended since the offense occurred such that application of the new Guidelines
results in a higher sentencing range, the court should apply the Guidelines in effect
at the time of the offense, so as not to violate the Ex Post Facto Clause.”). The
district court, however, can use the newer guidelines as a reason “for deviating from
the older Guidelines,” so long as it started with the correct, older guidelines. Peugh
v. United States, 569 U.S. 530, 549 (2013) (emphasis removed). See California
Dep’t of Corr. v. Morales, 514 U.S. 499, 505 (1995) (“[T]he Ex Post Facto Clause
forbids . . . enhanc[ing] the measure of punishment by altering the substantive
‘formula’ used to calculate the applicable sentencing range.” (emphasis added)).
The district court’s upward variance did not violate the Ex Post Facto Clause.
Baling asserts that the district court abused its discretion in weighing the
sentencing factors. “A district court abuses its discretion when it ‘(1) fails to
consider a relevant factor that should have received significant weight’; (2) ‘gives
significant weight to an improper or irrelevant factor’; or (3) ‘considers only the
appropriate factors but in weighing those factors commits a clear error of
judgment.’” United States v. Peithman, 917 F.3d 635, 653 (8th Cir. 2019), quoting
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). He argues
that the district court exaggerated his criminal history and the seriousness of his
offenses. He also asserts that considering his lack of remorse was impermissible.
These arguments fail. See United States v. Wilson, 122 F.4th 317, 325 (8th Cir.
2024) (The district court’s “weighing of certain sentencing factors more heavily than
others does not amount to an abuse of the district court’s broad sentencing
discretion.”); United States v. Spratt, 141 F.4th 931, 939 (8th Cir. 2025)
(“[D]isagreement with how the district court weighed the various sentencing factors,
alone, is not enough to show an abuse of discretion.” (cleaned up)); United States v.

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Sevilla-Acosta, 724 F. Appx. 510, 511 (8th Cir. 2018) (per curiam) (stating district
courts can consider a defendant’s lack of remorse for sentencing); United States v.
Parker, 762 F.3d 801, 812 (8th Cir. 2014) (“The sentencing judge’s responsibility
is always to fashion a punishment particular to each defendant, recognizing ‘the
human failings that sometimes mitigate, sometimes magnify, the crime and the
punishment to ensue.’”), quoting Koon v. United States, 518 U.S. 81, 113 (1996).
Finally, Baling argues his sentence is substantively unreasonable. Reviewing
the substantive reasonableness of a sentence for an abuse of discretion, this court
“take[s] into account the totality of the circumstances, including the extent of any
variance from the Guidelines range.” Feemster, 572 F.3d at 461, quoting Gall v.
United States, 552 U.S. 38, 51 (2007). “[I]t will be the unusual case when we reverse
a district court sentence—whether within, above, or below the applicable Guidelines
range—as substantively unreasonable.” Id. at 464 (citation omitted). Reviewing the
totality of the circumstances, Baling’s sentence is not unusual. The district court’s
sentence clearly reflected Baling’s criminal history, lack of remorse, lack of respect
for the law, the seriousness of the offenses, and the risk he poses to the public as an
armed, gang-affiliated drug dealer. The district court did not abuse its discretion in
imposing its upward variance.
The district court properly sentenced Baling.
B.
The district court sentenced Dilang to 120 months in prison for possessing a
firearm as a prohibited person. Dilang argues that the district court erred in applying
an enhancement, and in denying his request for a downward variance. He also
challenges the substantive reasonableness of his sentence.
Dilang argues that the district court erred in applying a four-level
enhancement for the use or possession of a firearm for another felony pursuant to

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U.S.S.G. § 2K2.1(b)(6)(B).4 Like his brother, he challenges the district court’s
evidentiary findings. This court reviews for clear error. See United States v.
Bullock, 35 F.4th 666, 670 (8th Cir. 2022).
Section 2K2.1(b)(6)(B) provides:
If the defendant . . . used or possessed any firearm or ammunition in
connection with another felony offense; or possessed or transferred any
firearm or ammunition with knowledge, intent, or reason to believe that
it would be used or possessed in connection with another felony
offense, increase by 4 levels.
Dilang asserts that the jury convicted him only of being a felon in possession and
not of “another” offense. “‘Another felony offense,’ for purposes of subsection
(b)(6)(B), means any federal, state, or local offense, other than the explosive or
firearms possession or trafficking offense, punishable by imprisonment for a term
exceeding one year, regardless of whether a criminal charge was brought, or a
conviction obtained.” U.S.S.G. § 2K2.1 cmt. n. 14(C) (2021). “[T]he plain
language of application note 14(C) excludes only the underlying firearms possession
offense of conviction from the definition of ‘another felony offense.’” United States
v. Hemsher, 893 F.3d 525, 535 (8th Cir. 2018) (emphasis added).
“In applying § 2K2.1(b)(6) when the defendant has not been convicted of
another state or federal felony offense, the district court must find by a
preponderance of the evidence that another felony offense was committed, and that
use or possession of the firearm facilitated that other felony.” Id. at 534. “The
government bears the burden of proving facts to support a § 2K2.1(b)(6)(B)
enhancement . . . .” United States v. Mitchell, 963 F.3d 729, 731 (8th Cir. 2020).
At sentencing, the government argued that the evidence at trial supported a finding
4 Effective November 1, 2025, the guidelines provide this enhancement at
U.S.S.G. § 2K2.1(b)(7)(B). This court references the version of the guidelines—
§ 2K2.1(b)(6)(B)—used to determine Dilang’s offense level at the time of
sentencing.

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that Dilang was involved in a conspiracy to unlawfully transfer firearms. It
emphasized that the Ruger-57 handgun attributed to Dilang was found with two
magazines, which contained the same ammunition found in Jock’s backpack. It also
highlighted Exhibit 128’s conspiracy evidence, and Pan’s testimony that he provided
the Ruger-57 to Jock.
Justifying the enhancement, the district court stated:
I’m gonna conclude that the evidence overwhelmingly shows that the
defendant is a member of a gang that engages in drug and firearm
distribution as well as street violence. Indeed, there was cocaine and
numerous firearms in the defendant’s home when he was arrested.
As the Court determined at trial, there was a conspiracy, which the
defendant was a part of, to unlawfully share or transfer firearms. The
text messages, the -- Mr. Pan’s testimony, the evidence at trial really
doesn’t make this a close call, quite frankly. So -- and there’s photos
located on -- on the cell phones as well. And the defendant’s text
messages also support all this.
So the government has established the propriety of the enhancement by
a preponderance of the evidence. . . .
I note that even if I had ruled differently on any of the defendant’s
objections, I would still have imposed the same -- same sentence in this
case that I am about to impose . . . .
The district court did not clearly err in finding that Dilang used or possessed
the Ruger-57 “in connection with” the conspiracy to unlawfully possess and transfer
firearms, and thus properly applied the enhancement.
Even if the application of § 2K2.1(b)(6)(B) were in error, it was harmless
because the district court stated it would have imposed the same sentence without
the enhancement. See United States v. Straw, 616 F.3d 737, 742 (8th Cir. 2010)
(“Incorrect application of the Guidelines is harmless error where the district court

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specifies the resolution of a particular issue did not affect the ultimate determination
of a sentence.”).
Dilang’s next challenge involves his citizen status. Dilang, a native of Kenya
and a citizen of South Sudan, entered the United States as a refugee in 1995,
becoming a lawful permanent resident two years later. According to the Presentence
Investigation Report and Immigration and Customs Enforcement, after a 2014
robbery conviction, he lost his permanent resident status and now possesses only
refugee status. An Immigration Judge ordered Dilang removed to South Sudan but
granted him deferral of removal under the Convention Against Torture. ICE never
commenced immigration proceedings after his release from prison in 2020.
In his sentencing memorandum, Dilang stated:
I am a deportable alien based on my immigration status. On the basis
of being a deportable alien, my individualized circumstances make my
particular immigration status unusual, atypical, extraordinary, and rare
compared to other deportable aliens, in that the U.S. Government is
unable to enforce the removal order because of country conditions in
South Sudan that warranted an immigration judge to grant me relief
under . . . [CAT], and difference to law with the alternative country of
Kenya unable to accept me as their citizen. Essentially I am a stateless
person although I have been expelled by the U.S. Government.
These individualized circumstances create a number of challenges.
Relevant to sentencing factors, after I complete the sentence I will be
released back into the community unlike other deportable aliens, and
while serving the sentence I will be denied and excluded by the Bureau
of Prisons from any opportunity to participate in certain pre-release
programs. As a matter of policy I am ineligible from benefits of
programs geared toward rehabilitating prisoners who will re-enter
society after release from confinement.
The manner in which my sentence will be impacted is another factor.
As experienced during my first sentence . . . I anticipate the Bureau of
Prisons will require me to serve the full sentence impose (aka jam the
number) when I get denied earned time credit under the First Step Act,

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six months of community-confinement (aka half-way house
assignment), and participation in Evidence Based Recidivism Programs
. . . under the [FSA] which afford prisoners a reasonable opportunity to
adjust to and prepare for re-entry into the community. This creates a
lengthy sentence and increase in the severity of the conditions of
confinement.
(footnotes omitted). Dilang believes that the risk of serving his entire sentence
entitles him to a downward variance. He requested an 18-month downward variance
“to address [the] undeserved increase in the length of his term of imprisonment.”
The district court disagreed:
Well, I do not intend to vary downward in this case because a
downward variance would be inappropriate. The defendant was
convicted by a jury of his peers for illegally possessing firearms. The
defendant is a member of a violent criminal street gang and the
defendant has a criminal history that includes burglary and robbery
charges. The case is not outside the heartland of cases to which the
Commission intends the individual guidelines to apply such that a
downward variance would be appropriate. So in other words, I think
certainly a downward variance is not appropriate in this case. So the
motion for downward variance is denied.
Dilang argues that the district court clearly erred because “the evidence in
support of his request was uncontroverted.” However, the district court sufficiently
explained its denial, basing it on Dilang’s criminal history and the seriousness of the
offense. In light of the record, the district court did not abuse its discretion in
refusing to grant Dilang a downward variance.
Dilang argues that his sentence is substantively unreasonable. The district
court issued an above-guideline sentence of 120-months in prison (guideline range
78–97 months). Upholding the upward variance, the district court stated:
I do intend to vary upwards in this case. The sentencing factors under
18 U.S.C. Section 3553(a) favor an above-the-guideline sentence. The

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offense conduct in this case is serious. The defendant illegally
possessed a firearm as a prohibited person. This demonstrates that the
defendant is dangerous and poses a serious threat to the public.
The defendant’s personal history and characteristics makes this case
even more concerning. The defendant has committed and been
incarcerated for robberies while armed with a firearm. As mentioned,
the defendant is a member of a gang that operates in drug distribution,
unlawful weapon transfers, and street violence.
The defendant’s criminal history began when he was 13 years old and
committed a burglary. In 2014, when defendant was age 21, he and
other gang members were involved in multiple armed robberies . . . .
Despite having received a prison sentence of 78 months for this
conduct, the defendant has not shown any proclivity to be a law-abiding
citizen, as this case demonstrates.
A guideline range of 78 to 97 months is insufficient to deter this
defendant and others who would commit the same crimes. I do deem
Mr. Dilang Dat as extremely dangerous to the public.
The Court further notes that the defendant appears to have no remorse
for what he has done. Despite overwhelming evidence, the defendant
has not taken responsibility for anything he’s done. I believe Mr. -- Mr.
Dilang Dat does not have respect for the law.
The district court’s sentence is not unreasonable. “In varying, a district court is
permitted to consider whether the guidelines range adequately reflects the
seriousness of the offense, affords adequate deterrence, and protects the public.”
United States v. Ross, 29 F.4th 1003, 1008 (8th Cir. 2022) (cleaned up). See United
States v. Michels, 49 F.4th 1146, 1149 (8th Cir. 2022) (“We have repeatedly held
that it is not unreasonable for a sentencing court to demonstrate with an upward
variance that contemptuous disregard for our laws can have serious consequences.”).

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C.
Dilang was under supervised release during his new law violation in this case,
resulting in a revocation. “If a defendant violates the conditions of supervised
release, the district court may impose both a term of imprisonment and a further term
of supervised release . . . .” United States v. Newcomer, 164 F.4th 697, 699 (8th
Cir. 2026) (cleaned up), quoting United States v. Palmer, 380 F.3d 395, 398 (8th
Cir. 2004) (en banc). Finding a violation, the district court imposed an above-
guideline revocation sentence of the maximum 24 months in prison (guideline range
12–18 months) to run consecutive to the 120-month term of imprisonment. Dilang
argues that his revocation sentence is substantively unreasonable. “A supervised
release revocation sentence is reviewed under the same deferential abuse-of-
discretion standard.” Michels, 49 F.4th at 1148 (quotation omitted).
The district court did not abuse its discretion by imposing an above-guideline
revocation sentence. Justifying the revocation sentence, the district court stated:
In crafting this disposition, I have considered all the factors referenced
in 18 U.S.C. Section 3583(e), including general deterrence, specific
deterrence, protection of the public, the need to avoid unwarranted
sentencing disparities, and the specific history and characteristics of the
defendant.
The Court has also considered the nature of the violation.
. . . .
I will just note for the record this is an upward variance, I believe, and
that is justified by the facts of this case and the reasons I stated on the
record under the prior filing. Just namely the dangerousness of the
defendant and the factors I’m -- that I’m required to consider easily in
my view justify an upward variance on the sentence in this case so that
is my judgment.
The district court considered the proper factors and sufficiently explained the
upward variance. The district court did not abuse its discretion.

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The district court properly sentenced Dilang.
* * * * * * *
The judgment is affirmed.
KELLY, Circuit Judge, concurring and concurring in the judgment as to Part IV.B.
Federal Rule of Evidence 1006 permits admission of summaries, charts, and
calculations to prove the content of voluminous admissible writings or recordings.
But Exhibit 128 was not a summary, chart, or calculation. Rather, it was a
compilation of more than 70 separate pieces of data, selected and extracted from the
defendants’ cell phones that included excerpted text messages, emails, photos,
location data, and internet searches. Nearly every slide displayed a message or
internet search and included red circles around specific text—added by the
government—directing the jury’s attention to particular entries on the slide. Selected
text messages were rewritten in larger font to the side of the image, with the
message’s sender identified.
No one disputes that the evidence obtained from the multiple cell phones in
this case was voluminous,5 and each of the individual slides may have been
admissible as a standalone exhibit. But rather than offering an abridgment or
condensed description of the contents of the defendants’ cell phones, here the
government compiled a select number of images and messages that best supported
its theory of the defendants’ liability into a single exhibit, with annotations directing
the jury to the most damning evidence. Such an exhibit goes beyond the bounds of
Rule 1006. United States v. Oloyede, 933 F.3d 302, 310–11 (4th Cir. 2019)
5 The government represented that the combined reports included gigabytes of
data. Yet, one defendant’s counsel stated that it may have been terabytes, and another
told the court that she and the prosecutor both crashed their respective computers
attempting to download the cell phone data in its entirety.

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(“[Evidence admitted under Rule 1006] must be an objectively accurate
summarization of the underlying documents[.]”); see also Summary, Black’s Law
Dictionary (12th ed. 2024) (A “summary” is an “abridgment or brief.”); Fed. R.
Evid. 1006.
Concern regarding the admission of Exhibit 128 is amplified when, as here,
the government waited until the evening before trial to notify the defendants which
portions of the significant volume of cell phone data it planned to offer into evidence
by way of this exhibit. The Cellebrite reports had been turned over to the defendants
well in advance of trial, so all parties had the “voluminous” underlying data. Even
after getting an extension to file its exhibit list up to seven days before trial, however,
the government’s list described Exhibit 128 simply as “PowerPoint re. extractions
of all 3x phones.” The government then waited until the night before trial to notify
the defendants which “extractions” from the cell phones it planned to include.
Framing Exhibit 128 as a summary therefore allowed the government to submit it
on the eve of trial, rather than a week before in accordance with the court’s
scheduling order.
But the admission of Exhibit 128 is not reversible error here, because it was
harmless. Each slide of Exhibit 128 was almost certainly otherwise independently
admissible. And although the district court admitted the slides as a single exhibit, it
allowed the defendants to object to specific slides and sustained several of those
objections. For these reasons, and in light of the other evidence admitted at trial,
admission of the slides in this form did not materially affect the verdict.
As to the “general gang evidence” offered by Ullery, I share the court’s
concerns. But it is a very close call. The testimony here was that Trip Set gang
members were involved in “[r]obberies, home invasions, burglaries, narcotics
trafficking, gun trafficking, felony assaults, homicides, [and] thefts”—crimes that
went far beyond the charged offenses in kind, volume, and severity. Ullery also
explained that Trip Set operated in several “pockets within the Omaha metro area,”
including the areas near “27th Street west to 30th, R Street south to W,” “Northwest

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Radial west to about 50th Street, Cuming area north to roughly Hamilton,” “65th
and Lafayette,” “44th to 47th and Ellison Avenue area,” and other pockets in North
and South Omaha. Combined, this testimony presented Trip Set as dangerous, not
only to its members and other gangs, but to people in general all over Omaha. In this
way, it is very similar to the type of evidence we have found prejudicial, reversible
error. See Roark, 924 F.2d at 1432–34 (finding reversible error when government
elicited testimony by two agents describing the Hells Angels and its extensive
network of chapters engaged in methamphetamine and cocaine production and
distribution), and Street, 548 F.3d at 629–34 (finding reversible error when, “[o]ver
Street’s objection this government witness was allowed to provide extensive,
prejudicial testimony concerning the violent tendencies and criminal dispositions of
gangs in general and of the Kansas City El Forasteros in particular”).
But, as the court fairly points out, the general gang evidence did not play a
significant role in the overall case. Cf. Roark, 924 F.2d at 1432 (“The government
began its assault on the Hells Angels organization in voir dire, and continued
throughout the trial in a relentless attempt to convict Appellant through his
association with the motorcycle club.”); Street, 548 F.3d at 629 (“Half of [the
expert’s] testimony, spanning twenty pages in the record, is devoted to an alarming
portrayal of gang culture in general and of the local El Forasteros gang in
particular.”). By contrast, Ullery’s most prejudicial comments about Trip Set span
about two pages of the trial transcript. The content of the testimony was undoubtedly
prejudicial, but its brevity in the context of the record as a whole precludes reversal
for plain error.
______________________________

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