The Court of Appeals put a lot of effort this year into deciding how to determine whether a group is a criminal street gang and whether a person is a member.
Taybron v. Commonwealth, JAN11, VaApp No. 2834-09-1
(1) If members of different local gangs copy a national gang's colors, symbols, and language this does not mean that they are both in that national gang. (2) Convictions of gang members in a different local gang which copies the symbols etc. of the same national gang as the defendant's gang copies are not enough to provide the prerequisite convictions to prove a criminal street gang.
Rushing v. Commonwealth, JUL11, VaApp No. 0723-10-1:
In proving prior criminal acts by members of the criminal street gang, in order to establish its status, (1) the crimes do not have to involve the defendant (2) nor does it have to be proven that the defendant knew the people involved.
Salcedo v. Commonwealth, JUL11, VaApp No. 1325-10-3:
The two necessary predicate criminal acts which are needed to prove a criminal street gang can be established by an officer testifying that two members of a national gang, in other States, have been convicted of requisite crimes.
Note: This seems to clearly conflict with Taybron, but it does not seem to be meant to overturn it. It appears more like it was not something seriously considered.
Johnson v. Commonwealth, AUG11, VaApp No. 2091-10-1;
(1) In order to prove that a group is a criminal street gang the prosecution must prove its members have (a) individually, or (b) as part of the group committed two or more predicate criminal acts. (2) The introduction of the defendant's prior conviction(s) can serve as evidence of the predicate offenses.
Morris v. Commonwealth, OCT11, VaApp No. 1133-10-2:
(1) There are three elements to the crime of participating in a criminal street gang: (a) the defendant must participate in or be an active member of a criminal street gang, and (b) the defendant must knowingly and willingly participate in a predicate criminal act, and (c) the act must be done (i) for the benefit of, or (ii) at the direction of, or (iii) in association with the gang. (2) Even if one is not a member of the criminal street gang committing the predicate criminal act, participating with members of the criminal street gang is acting “in association with” the gang and therefore fulfills element iii.
Federal Cases on Pat Downs & Searches