United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION FOR JUDGMENT OF
ACQUITTAL AND FOR NEW TRIAL
BOND ARTERTON, U.S.D.J.
August 4, 2016, after a jury trial, Defendant Karl Roye was
found guilty of conspiracy to commit a Violent Crime in Aid
of Racketeering ("VCAR") Murder in violation of 18
U.S.C. § 1959(a)(5) (Count One) and VCAR Murder in
violation of 18 U.S.C. §§ 1959(a)(1) and (2) (Count
Two). Defendant now moves [Doc. # 199] for judgment of
acquittal pursuant to Fed.R.Civ.P. 29, or alternatively for a
new trial pursuant to Fed.R.Civ.P. 33. The Government opposes
[Doc. #216] Defendant's Motion. Oral argument was held on
May 12, 2017. For the reasons that follow, Defendant's
Motion is granted in part and denied in part.
April 6, 2011 Anthony Parker (aka "Smooth") was
murdered after being shot multiple times while sitting in his
vehicle parked at 15 Thomaston Street in Hartford,
Connecticut. (Tr. at 53:6-8; 53:23-25.) At Mr. Roye's
trial for Parker's murder there was testimony that
Defendant and his co-defendant, Jimel Frank,  two members of an
organization called Wall Street,  a "geographically-based
drug trafficking street gang located in the Blue Hills
Section of Hartford" (id. at 85-88) committed
the murder in response to several incidents they believed
Parker, who was a member of another group called
"Ave" (tr. at 116:15-21), to have been involved in.
Additional relevant facts are incorporated into the
Court's analysis of whether the record supports
argues his acquittal is warranted because the Government
failed to prove he had the requisite motive to murder under
Section 1959, and with respect to the conspiracy charge, that
there was no evidence of his having made any agreement to
murder. In the alternative, Defendant contends that he is
entitled to a new trial because he was denied a fair trial
because of the allegedly prejudicial admission of evidence of
a prior search of his residence and the Government's
failure to correct alleged perjured testimony of prosecution
witness Anthony Owens.
Fed. R. Crim. P. 29(a) "the court on the defendant's
motion must enter a judgment of acquittal of any offense for
which the evidence is insufficient to sustain a
conviction." "A Rule 29 motion [for a judgment of
acquittal] should be granted only if the district court
concludes there is no evidence upon which a reasonable mind
might fairly conclude guilt beyond a reasonable doubt."
United States v. Irving, 452 F.3d 110, 117 (2d Cir.
2006) (internal quotations omitted). The Court must view the
evidence presented at trial in the light most favorable to
the Government, and draw all reasonable inferences in its
favor. United States v. Cote, 544 F.3d 88, 98 (2d
Cir. 2008). " [I]t is well settled that 'Rule 29(c)
does not provide the trial court with an opportunity to
substitute its own determination of... the weight of the
evidence and the reasonable inferences to be drawn for that
of the jury.'" Id. at 99 (quoting
United States v. Guandagna, 183 F.3d 122, 129 (2d
Cir. 1999)). "The Court must give full play to the right
of the jury to determine credibility." Id.
"A defendant challenging the sufficiency of the evidence
that was the basis of his conviction at trial bears a heavy
burden." United States v. Hawkins, 547 F.3d 66,
70 (2d Cir. 2008) (internal quotations and citations
short, the Court may not disturb a conviction on grounds of
legal insufficiency absent a showing that "no rational
trier of fact could have found each essential element of the
crime beyond a reasonable doubt." United States v.
Walsh, 194 F.3d 37, 51 (2d Cir. 1999).
a new trial may be granted pursuant to Fed. R. Crim. P. 33
"if the interest of justice so requires, "
particularly where there is "a real concern that an
innocent person may have been convicted." United
States v. Canova, 412 F.3d 331, 344, 349 (2d Cir. 2005)
(quoting Fed. R. Crim. P. 33(a)). "In the exercise of
its discretion, the court may weigh the evidence and
credibility of witnesses, " United States v.
Cote, 544 F.3d 88, 101 (2d Cir. 2008), but "[i]t is
only where exceptional circumstances can be demonstrated that
the trial judge may intrude upon the jury function of
credibility assessment, " United States v.
Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992). While
courts have broader discretion to grant a new trial under
Rule 33 than to grant an acquittal under Rule 29,
"courts must nonetheless exercise Rule 33 authority
sparingly and in the most extraordinary of
circumstances." Id. "The test is whether
it would be a manifest injustice to let the guilty verdict
stand." Sanchez, 969 F.2d at 1414.
Defendant's Rule 29 Arguments
There is Sufficient Evidence of Defendant's Motivation to
Support his Conviction
claims the Court must "set aside the verdict and enter
judgment of not guilty, " arguing that "[t]he
Government failed to present any evidence showing Roye's
motive for being involved [in the murder], " (Def.'s
Mot. for Acquittal [Doc. # 199] at 12-13) and that the
Government's Opposition improperly insinuates that
evidence of gang membership serves as a "stand-in"
for Defendant's motivation (Def.'s Reply at 3). In
opposition, the Government contends that considering all of
the facts and circumstances in the evidentiary record in
favor of the Government as the Court must, the evidence it
introduced at trial was sufficient for the jury to find
Defendant was motivated by his desire to maintain his
position in the enterprise. (See Gov't Opp'n
VCAR statute provides in pertinent part as follows:
Whoever, as consideration for the receipt of, or as
consideration for a promise or agreement to pay, anything of
pecuniary value from an enterprise engaged in racketeering
activity, or for the purpose of gaining entrance to or
maintaining or increasing position in an enterprise engaged
in racketeering activity, murders . . . any individual in
violation of the laws of any State or the United States ...
shall be punished-(1)... by death or life imprisonment, or a
fine under this title, or both.
18 U.S.C. § 1959(a). In light of this language, the
Second Circuit has concluded that Section 1959 "contains
a motive requirement." United States v.
Ferguson, 246 F.3d 129, 134 (2d Cir. 2001). Thus, in
order for the Government to prove both Counts One and Two it
must prove as an element of the charged crimes that "at
least one of the Defendant's purposes in [conspiring to
murder and] committing the murder was to maintain or increase
his position in the racketeering enterprise." (Jury
Instructions [Doc. # 191] at 17.)
to the Second Circuit, "[t]he government satisfies the
motive requirement if'the jury could properly infer that
the defendant committed his violent crime because he knew it
was expected of him by reason of his membership in the
enterprise or that he committed it in furtherance of that
membership.'" Ferguson, 246 F.3d at 134
(quoting United States v. Concepcion, 983 F.2d 369,
381 (2d Cir. 1992)). This need not have been his only purpose
or even primary purpose, as long as the murder was committed
"as an integral aspect of membership in the
Section 1959 conviction must be affirmed if the
defendant's "motivation to maintain or increase his
position may be reasonably inferred from the evidence, "
but affirmance is not warranted where "that inference is
based on no more than guesswork." United States v.
Thai, 29 F.3d 785, 819 (2d Cir. 1994). Both the Ninth
and Sixth Circuits have refused to recognize any presumption
that gang members who commit violent acts always do so with
the purpose of maintaining their status within the gang.
United States v. Banks, 514 F.3d 959, 968 (9th Cir.
2008); United States v. Hackett, 762 F.3d 493, 500
(6th Cir. 2014). As the Sixth Circuit pointed out, to find
otherwise, "in gang cases, the purpose element would be
nearly a tautology." Hackett, 762 F.3d at 500.
Indeed, a district court in Connecticut (Nevas, J.) found
The government's argument that any personal act of
disrespect toward [the defendant] was tantamount to an act of
disrespect against the Enterprise blurs
Concepcion's distinction between violent crimes
that are committed in connection with a criminal
enterprise's affairs and those that arise from purely
non-enterprise-related matters. Indeed, taking the
government's theory to its logical conclusion, any act of
violence committed by a member of a drug-trafficking group,
whether related to its drug-trafficking objectives or not,
would be a VICAR offense.
United States v. Jones, 291 F.Supp.2d 78, 89 (D.
because the jury "cannot look into [Defendant's]
mind, [it] may attempt to determine his purpose by
considering all of the facts and circumstances ..."
(Jury Instructions [Doc. # 191] at 17.) The court in
Ferguson discussed several cases involving
"circumstances in which a defendant who is an
established member of a criminal enterprise acts in a way
consistent with that membership" and thereby was found
to have the required motive. 246 F.3d at 135 (citing
Concepcion, 983 F.2d at 382-83 (defendant was a
lieutenant in the enterprise and initiated violence in
connection with its narcotics business to maintain and
increase his leadership position in the group); United
States v. Diaz, 176 F.3d 52, 94-95 (2d Cir. 1999)
(defendants were gang members who furthered that membership
by killing an informant who could harm the gang's
United States v. Burden, the Second Circuit found
"[t]he jury could easily infer from the evidence of the
activities that took place ... and the people involved that
the acts of violence were part and parcel of the culture of
the Organization, just as [was] participation in the drug
business." 600 F.3d 204, 221 (2d Cir. 2010). The
Burden court explained that the evidence from which
the jury could infer the defendants' motives included
testimony from one member of the enterprise "that
threats and acts of violence, along with a general reputation
for violence, were essential to one's success and
enhanced a member's standing in the . . . Organization,
" and describing "an overall climate of violence as
[being] integral to a member's success in the
Organization." Burden, 600 F.3d at 220. There
was also evidence that the head of the Organization had
instructed members that the victim needed to be "dealt
with sooner or later" and praised the defendant after he
shot the victim. See id.
while mere membership in a gang cannot alone provide a basis
for establishing a defendant's motivation to maintain his
or her position in a gang, evidence of membership in addition
to other evidence connecting the crime to the gang's
activities, whether direct or circumstantial, could suffice
for a jury to infer the requisite motivation.
Viewed in the Light Most Favorable to the Government, the
Jury's Finding is Supported by the Record
Government argues that from the evidence offered at trial
"the jury could readily have concluded . . . that the
murder of Anthony Parker, a person who posed a threat to the
drug operation and members of the enterprise, was an act that
was expected of [Defendant] and that allowed [him] to
maintain [his] position within the organization."
(Gov't Opp'n at 22.) Drawing all permissible
inferences in the Government's favor, the testimony at
trial, as discussed below, established: (1) that the members
of Wall Street, including Defendant, believed Parker was
involved in a break-in to a car parked at Defendant's 225
Holcomb Street residence and in putting a gun to the head of
another Wall Street member's mother, (2) that Wall Street
responded to threats with violence, and (3) that the reason
Defendant became involved in this murder was because Frank
called him and asked him for assistance.
were two separate incidents which occurred prior to the
murder on April 6, 2011 which the jury could reasonably
interpret as leading the Wall Street members to perceive
Parker as a threat. First, not long before the murder,
someone had broken into a car parked outside Roye's
residence, causing some damage to the vehicle, and either
stole drugs hidden inside or attempted to do so. (Tr. at
969-70.) Ricardo Howe testified that Defendant and Frank told
him about the attempted theft and their belief that
Parker's "people" were responsible for the
incident. (Tr. at 931:22-933:18.) Anthony Owens corroborated
this incident, testifying that he had related to Frank that
Parker had admitted that he had stolen a half a brick (500
grams) of cocaine at the Holcomb Street address. (Tr. at
second incident for which Roye and Frank believed Anthony
Parker was responsible concerned an individual putting a gun
to the head of Wall Street member Kendall Brown's mother.
Frank testified that Anthony Owens informed him that Anthony
Parker was responsible for that incident and that he in turn
told his fellow Wall Street members Kendall Brown and Karl
Roye what he had learned from Owens. (Tr. at 972.) The
testimony also reflected that Frank, who at the time was
involved in the distribution of cocaine, drove a car which
was very similar in appearance to that driven by Brown's
mother and Frank believed that he himself was the intended
victim of the gun incident. (Id. at 973-74.)
Furthermore, Howe testified that both Defendant and Kendall
Brown had told him about the incident and that it was Anthony
Parker's "people" who were responsible.
(Id. at 934:16-20.) Additionally, Frank testified to
feeling "disrespected" after this incident and to
the following discussion he had with Defendant:
Q. Tell the jury what the discussion was involving you,
Kendall Brown, and Karl Roye, what did you - what was the
discussion; what did you say, what was decided?
A. Oh, that this dude is tripping, and we need to see him for
Q. I'm sorry, you had to what?
A. We had to - we had to take care of him, pretty much, Q.
You had to take care of Smooth?
A. Yeah, we was going to attempt to rob him as well, since
that's what he ...