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United States v. Roye

United States District Court, D. Connecticut

August 25, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
KARL ROYE, Defendant.

          RULING ON DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AND FOR NEW TRIAL

          JANET BOND ARTERTON, U.S.D.J.

         On 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.

         I. Discussion

         On 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, [1] two members of an organization called Wall Street, [2] 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 Defendant's arguments.

         Defendant 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.

         A. Legal Standards

         1. Rule 29

         Under 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 omitted).

         In 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).

         2. Rule 33

         Alternatively, 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.

         B. Defendant's Rule 29 Arguments

         1. There is Sufficient Evidence of Defendant's Motivation to Support his Conviction

         Defendant 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 at 20-23.)

         a. The Law

         The 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.)[3]

         According 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 enterprise." Id.

         A 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 that

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. Conn. 2003).

         Still, 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 narcotics enterprise)).

         In 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.

         Thus, 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.

         b. Viewed in the Light Most Favorable to the Government, the Jury's Finding is Supported by the Record

         The 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.[4]

         There 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 701-02.)

         The 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 that.
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 ...

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