United States of America v. Austin James Mallory

United States Court of Appeals
For the Eighth Circuit
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No. 22-2777
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United States of America
Plaintiff - Appellee
v.
Austin James Mallory
Defendant - Appellant
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No. 22-2784
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United States of America
Plaintiff - Appellee
v.
Raekwon Malik Patton, also known as Kwon, also known as Nutt
Defendant - Appellant
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Appeals from United States District Court
for the Southern District of Iowa - Central
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Submitted: October 19, 2023
Filed: June 12, 2024
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Before GRUENDER, STRAS, and KOBES, Circuit Judges.
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STRAS, Circuit Judge.
A jury found Raekwon Patton and Austin Mallory guilty for their roles in a
drive-by shooting. Although they challenge the evidence and the instructions the
jury heard, we affirm.
I.
The shooting occurred after a chance encounter with a rival gang member
outside a Des Moines shopping mall. Mallory had driven there in an SUV with a
group that included Patton and other members of two local street gangs, the Heavy
Hitters and OTB (short for Only the Brothers). In the parking lot, they spotted
Raysean Nelson, whom they followed as he drove away. Mallory was still behind
the wheel, with Patton in the back seat.
Eventually, Nelson pulled over and got out. There was an exchange of gunfire
once Mallory’s SUV passed Nelson’s car, though it is unclear who shot first. At one
point, Patton was hanging out the window firing back in Nelson’s direction. Another
passenger in the SUV, who may have been shooting as well, was shot in the head.
Patton and Mallory each faced charges of attempted murder in aid of
racketeering, see 18 U.S.C. § 1959(a)(5), and discharging a firearm during a crime
of violence, see id. § 924(c)(1)(A)(iii), the former as a principal and the latter as his
accomplice. The jury found them both guilty, but not before the district court1
overruled multiple objections.
1 The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

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II.
We begin with Patton, who attacks the verdict from two angles. Missing, he
argues, were at least two jury instructions and reasonable limits on the evidence that
the government presented, much of which cast him in a poor light.
A.
Particularly problematic from his perspective were the instructions on the
attempted-murder-in-aid-of-racketeering charge. Although it is a federal crime, the
“predicate offense[]” can come from state law. United States v. Kehoe, 310 F.3d
579, 588 (8th Cir. 2002) (explaining that state or federal law can be the source).
When it does, state law defines its parameters, including potential defenses. See id.
One defense to an Iowa attempted-murder charge is justification. See Iowa
Code § 707.11(1). Patton’s position is that the other side’s decision to shoot first
justified his decision to return fire, yet the jury never received the justification
instruction he requested. We review de novo whether it should have. See United
States v. Poe, 442 F.3d 1101, 1103 (8th Cir. 2006) (“Whether there is sufficient
evidence to support the submission of an instruction on an affirmative defense is a
question of law . . . .”); cf. State v. Shanahan, 712 N.W.2d 121, 141 (Iowa 2006)
(explaining that a justification instruction requires “substantial evidence”).
Justification requires a bit more when the person claiming it was “engaged in
illegal activity.” Iowa Code § 704.1(3). Iowa allows most people facing injury or
death to “stand [their] ground.” State v. Ellison, 985 N.W.2d 473, 477–78 (Iowa
2023). But not Patton, who was “engaged in [the] illegal activity” of possessing a
firearm as a felon, which created a duty to retreat before he could use force himself.
Id. (citation omitted); State v. Baltazar, 935 N.W.2d 862, 871 (Iowa 2019) (holding
that a defendant who illegally brought a gun to a confrontation had a “duty to retreat”
before using it in self-defense).

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There was no evidence that he tried. It is true that the shell casings and bullet
fragments discovered near the intersection and the bullet holes throughout Mallory’s
SUV are consistent with someone else shooting before Patton did, meaning that he
might have had a “reasonabl[e] belie[f] that [deadly] force [was] necessary.” Iowa
Code § 704.3. But Patton, Mallory, and the others had a golden opportunity to
escape, given that Nelson’s car was already stopped. Yet, by having guns at the
ready and rolling down the windows as they approached Nelson’s parked car, the
only reasonable inference was that they planned to fire regardless of what anyone
else did. Cf. Iowa Code § 704.6(3) (“The defense of justification is not available
to . . . [o]ne who initially provokes the use of force against oneself by one’s unlawful
acts . . . .”). It was, in other words, a preplanned drive-by shooting, not an act of
justified self-defense. See State v. Cruse, 228 N.W.2d 28, 30 (Iowa 1975)
(explaining that self-defense requires “retreat[ing] as far as is reasonable and safe”
(citation omitted)).
No one doubts that, once the shooting started, Patton and the others faced
grave danger. Look no further than the fact that a bullet struck another backseat
passenger in the head. But we do not know when it happened—toward the
beginning, middle, or end of the shootout—and an “alternative course of action”
may well have prevented it. Baltazar, 935 N.W.2d at 870. Unfortunately, Patton
returned fire before anyone had a chance to try.
B.
Another problem, according to Patton, was that the instructions set the bar too
low on the racketeering element. See 18 U.S.C. § 1959(a)(5). He requested an
instruction requiring the jury to find that the attempted murder was “an integral
aspect of membership” in the gang or that a “substantial purpose” of the crime was
maintaining or increasing his position. The court stuck with a less rigid formulation,
requiring only that it have as its “purpose . . . gain[ing] entrance to, . . . maintain[ing]
or increas[ing] [his] position” in the organization. The question for us is whether it

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abused its discretion in doing so. See United States v. White Horse, 35 F.4th 1119,
1121 (8th Cir. 2022).
The answer is no because the instruction “fairly and adequately” told the jury
what it needed to know. Id. (citation omitted). It closely tracked the statutory
language, which does not specify how substantial the purpose must be. See 18
U.S.C. § 1959(a) (prohibiting acts done “for the purpose of gaining entrance to or
maintaining or increasing position in an enterprise engaged in racketeering
activity”); see also United States v. Gill, 513 F.3d 836, 852 (8th Cir. 2008)
(recommending that “district courts should clearly list . . . [what] the particular
offense requires by tracking the applicable statutory language”); White Horse, 35
F.4th at 1123 (explaining that jury instructions do not need to clarify every nuance
with “technical[] perfect[ion]” (citation omitted)).
It also did not tempt the jury to focus just “on [Patton’s] status as a gang
member.” United States v. Banks, 514 F.3d 959, 969 (9th Cir. 2008). In fact, the
district court dispelled any possible confusion by giving specific examples of what
would satisfy the legal standard: “committ[ing] the crime because [the defendant]
knew it was expected of him by reason of his membership” or “thought it would
enhance his position or prestige within the enterprise.” These examples focused the
jury’s attention where it belonged, which was on Patton’s motivation for attempting
the murder. See 18 U.S.C. § 1959(a).
C.
The last part of Patton’s appeal focuses on the evidence admitted over his
objections. Our review is “for an abuse of discretion.” United States v. Caruso, 63
F.4th 1197, 1202 (8th Cir. 2023).
Some of it was background information about gangs. A federal agent testified
about how they form, act, and deal with one another. The point was to help the jury

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understand upcoming testimony about the mindset and practices of OTB and other
Des Moines gangs. See Fed. R. Evid. 702 (authorizing expert testimony); United
States v. Sparks, 949 F.2d 1023, 1025–26 (8th Cir. 1991) (holding that it was not an
abuse of discretion to let an expert testify “regarding the way gangs operate”).
It is true, as Patton emphasizes, that there was some daylight between the
“gangs” the agent had in mind and how “an enterprise engage[s] in racketeering
activity” under federal law. Compare, e.g., Iowa Code § 723A.1(2) (defining
“[c]riminal street gang”), with 18 U.S.C. § 1959(a), (b). But the need for the jury to
figure out the relationship between the two concepts was why the testimony was
helpful. See Sparks, 949 F.2d at 1026. Together with the more specific evidence
about OTB and what led to the shootout, it allowed the jury to evaluate whether the
gang was an “enterprise” and the murder attempt aided in its racketeering activity.
See Fed. R. Evid. 401 (defining “relevan[ce]”).
The testimony also posed little risk of “unfair prejudice.” Fed. R. Evid. 403.
After all, the agent acknowledged up front that he did not know Patton (or have any
other involvement with the case), so it is unlikely that the jury relied on what he said
for anything more than general background information. Cf. United States v.
Overton, 971 F.3d 756, 763 (8th Cir. 2020) (warning of the risks posed when an
investigator provides “dual-role testimony” as both a lay witness and an expert).
As for more specific evidence about OTB from other witnesses, it was
relevant to show that the gang was “engaged in racketeering activity” when the crime
occurred. 18 U.S.C. § 1959(a). In addition to the gang’s history and past activities,
some witnesses discussed later crimes, including an attempt to retaliate for the earlier
shooting. No one suggested that Patton, who was behind bars by then, had anything
to do with them. See Fed. R. Evid. 403; see also United States v. Johnson, 535 F.3d
892, 897 (8th Cir. 2008) (emphasizing that we generally defer to the district court’s
Rule 403 balancing). But the evidence was valuable because it allowed the jury to

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draw the reasonable inference that a functioning enterprise both before and after the
crime would have also been one on the day it happened. See Fed. R. Evid. 401.
III.
Mallory also attacks the verdict from two angles. The first strikes a familiar
note by challenging two evidentiary decisions. The second is about whether the
government established that Mallory was a knowing accomplice.
A.
We start where we left off, with the district court’s evidentiary rulings.
Mallory’s counsel wanted to put another occupant of the SUV on the stand. The
hope was that he would admit he was the driver but switched seats with Mallory
before the cops pulled them over. Cf. Rosemond v. United States, 572 U.S. 65, 71
(2014) (explaining that accomplice liability requires “an affirmative act in
furtherance of th[e] offense”). When he failed to show up at trial, the only alternative
was to try to get the admission in through another OTB member, but the district court
excluded it.
It was classic hearsay, an out-of-court statement offered for the truth of the
matter asserted. See Fed. R. Evid. 801(c). The debate was over whether it fell into
the exception for statements against penal interest, which are only admissible if they
are trustworthy. See Fed. R. Evid. 804(b)(3)(B) (requiring “corroborating
circumstances that clearly indicate [the statement’s] trustworthiness”). The district
court concluded it was not, and we generally defer to its “determination of a
declarant’s credibility and motivation in making a statement.” United States v.
Chase, 451 F.3d 474, 480 (8th Cir. 2006).
The relevant factors for determining whether a statement is trustworthy are
the declarant’s motive, character, and relationship with the witness; the timing of the

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statement and what prompted it; and whether anyone else heard it. See United States
v. Halk, 634 F.3d 482, 490 (8th Cir. 2011). Applying those factors here, the district
court had reason to exclude it.
First, the declarant had a “clear motivation to lie.” United States v. Dunn, 76
F.4th 1062, 1067 (8th Cir. 2023). The evidence established that engaging in violence
was a way to gain standing in the gang, so he had an incentive to exaggerate his
involvement.
Second, he had denied being the driver during a pretrial interview. He said
then that he had not driven the SUV, switched seats with Mallory, or told someone
he had. See United States v. Ironi, 525 F.3d 683, 687 (8th Cir. 2008) (concluding
that a declarant’s own contradictory statements “undermined” the trustworthiness of
an alleged admission against interest).
Third, even the person who heard the statement questioned its veracity, given
that it was “[n]ot clear at all” when the switch could have happened with the police
chasing them. With little to no corroboration for the hearsay statement, the district
court did not abuse its discretion by excluding it. See id.
B.
Nor did it have to admit evidence showing Mallory’s involvement in a variety
of non-gang activities, including ROTC, Boy Scouts, and swim team. He hoped that
showing he had a “busy schedule” would allow the jury to see that he did not have
time to participate in a gang or plan shootings.
The problem was that much of it was inadmissible character evidence. See
Fed. R. Evid. 405(b) (prohibiting the admission of “specific instances of [a] person’s
conduct” unless “character or a character trait is an essential element of a charge,
claim, or defense”). To the extent any was not, the risk of unfair prejudice

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substantially outweighed any probative value it had. See Fed. R. Evid. 403. The
district court’s main concern was that the evidence would invite the jury to decide
the case “on an improper . . . emotional [basis].” United States v. Condon, 720 F.3d
748, 755 (8th Cir. 2013) (citation omitted). Preventing it from doing so was not an
abuse of discretion.
C.
The evidence was also sufficient for the jury to conclude that Mallory was
guilty as an accomplice. The government had to prove that he knew there was a gun
in the car and one of his passengers would fire it at someone else. See 18 U.S.C.
§§ 2(a), 924(c)(1)(A)(iii), 1959(a)(5); see also Rosemond, 572 U.S. at 77 (explaining
that “active[] participat[ion] . . . with full knowledge of the circumstances
constituting the charged offense” establishes the necessary intent). If a reasonable
jury, “viewing [the] evidence in the light most favorable to the government” and
drawing “all reasonable inferences” in its favor, could have found that he did, his
attempted-murder and discharging-a-firearm convictions will stand. United States
v. Atkins, 52 F.4th 745, 751–52 (8th Cir. 2022) (citation omitted) (applying de novo
review).
Several facts established Mallory’s knowledge. First, he admitted during a
jailhouse interview that he knew someone in the SUV was about to fire once the
back windows dropped. Another passenger confirmed Mallory’s interpretation:
when “the windows went down,” it meant someone “was going to shoot somebody.”
According to him, they came down before the SUV “got on the block,” meaning that
the jury could have inferred that Mallory still had time to hit the brakes, turn the
vehicle around, or otherwise withdraw his assistance. See Rosemond, 572 U.S. at
78 (clarifying that an accomplice’s “knowledge of a firearm must be advance
knowledge”).

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The windows were not the only tipoff. Mallory’s social-media feed featured
posts from Patton and other OTB members discussing how they carried guns and
shot at rivals. With that background, he would have known that a drive-by shooting
was a distinct possibility after a passenger who “was into it” with Nelson and “didn’t
like” him said to follow his car.2 See United States v. Daniel, 887 F.3d 350, 357
(8th Cir. 2018) (holding there was sufficient evidence that a defendant knew an
accomplice would use a gun and emphasizing that “the jury can ‘draw inferences . . .
based on all the facts and circumstances of a crime’s commission’” (emphasis
omitted) (quoting Rosemond, 572 U.S. at 78 n.9)). Or at least the jury could have
reasonably concluded so.
IV.
We accordingly affirm the judgments of the district court.
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2 Although Mallory also suggests that the verdict was against the weight of the
evidence, it appears he is just repackaging his argument that the government’s
evidence of knowledge fell short, not suggesting that his “preponderate[d] heavily
against” it. United States v. Stacks, 821 F.3d 1038, 1044–45 (8th Cir. 2016) (citation
omitted) (explaining that granting a new trial based on the weight of the evidence is
“generally disfavored,” “reserved for exceptional cases,” and committed to the
district court’s “quite broad” discretion (citations omitted)). Regardless, this is not
one of those “exceptional cases” deserving of a new trial. Id.

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