What happened
The Eighth Circuit affirmed the judgments against Baling Dat, Dilang Dat and Jany Jock in consolidated appeals from the District of Nebraska, leaving in place prison terms tied to drug, firearm and firearm-transfer convictions.
Baling Dat was convicted of possession with intent to distribute cocaine, possessing a firearm in furtherance of a drug-trafficking crime and being a felon in possession of a firearm, and received 195 months in prison. Dilang Dat was convicted of being a felon in possession of a firearm and, after revocation of supervised release, received a total of 144 months. Jany Jock, who was not a felon, was convicted of selling or otherwise disposing of a firearm to a felon and received 120 months.
The panel rejected Baling's Fourth Amendment challenge to the search of 4704 Ellison Avenue in Omaha. The opinion said a citizen tip was corroborated by a lawful trash pull that produced marijuana residue, a torn baggie and unfired ammunition, and it emphasized that probable cause is “not a high bar.” Together with the defendants' felon status and gang-related context described in the warrant affidavit, the court held the issuing judge had a substantial basis to authorize the search.
The court also rejected Baling's bid for severance based on evidence that Jock knew Baling had been incarcerated. The panel said Old Chief did not bar the evidence because it was not introduced to prove Baling's felon status, but to show Jock's mens rea on the charge that he sold or disposed of a firearm to a felon.
Judge Kelly concurred and wrote separately about the government's Exhibit 128, a 78-slide PowerPoint drawn from phone extractions. She said the exhibit was not a true Rule 1006 summary but a curated compilation of messages, photos, location data and searches, with government annotations directing jurors to damaging entries. Even so, she agreed the error was harmless because the slides were almost certainly independently admissible and the district court allowed slide-specific objections.
Kelly also flagged the government's general gang evidence as a close evidentiary call, saying testimony portraying Trip Set as broadly dangerous in Omaha resembled evidence the Eighth Circuit has previously found prejudicial. But she concluded the most prejudicial comments spanned only about two transcript pages and were too brief in the full record to justify reversal for plain error.