United States District Court, E.D. New York
June 14, 2005.
UNITED STATES OF AMERICA
RASENE MYTON, Defendant.
The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
Following a jury trial on the S-4 Indictment, defendant, Rasene
Myton ("Myton"), was found guilty of one count of conspiracy to
commit robbery (Count One), one count of attempted robbery (Count
Two), one count of robbery (Count Six) and three counts of using
of a firearm in connection with a crime of violence (Counts
Three, Five and Seven). Myton has since made, through counsel and
pro se, numerous post-trial motions. The Court has denied, in
open court, all of them. Myton has yet to be sentenced.*fn1
Included in the post-trial motions were motions for judgment of
acquittal and, alternatively, for a new trial. As to Counts Two,
Three, Six and Seven, Myton's motions were based in part on two post-trial disclosures by the
Government: (1) that a witness had committed perjury at trial;
and (2) that another witness might have misidentified the victim
of one of the robberies. At oral argument on the post-trial
motions, the Court indicated that it would address those issues
in a written format to elaborate on its conclusions that,
although the Government's candid disclosures raise important and
somewhat unusual issues, they do not entitle Myton to a judgment
of acquittal or a new trial.
Myton was charged with conspiring to rob commercial businesses
and drug dealers, and with several crimes committed in the course
of that conspiracy. The charges were brought under the Hobbs Act,
18 U.S.C. § 1951, and 18 U.S.C. § 924(c)
A prosecution under the Hobbs Act requires the Government to
prove (1) robbery, extortion, or an attempt or conspiracy to rob
or extort; and (2) interference with interstate commerce. See
18 U.S.C. § 1951; United States v. Clemente, 22 F.3d 477, 480
(2d Cir. 1994) (citing Stirone v. United States, 361 U.S. 212
(1960)). The required nexus to interstate commerce is minimal:
"Even a potential or subtle effect on commerce will suffice."
United States v. Elias, 285 F.3d 183, 188 (2d Cir. 2002)
(internal quotation marks omitted).
Because illegal drugs move in interstate commerce, the robbery
or attempted robbery of a drug dealer can be prosecuted under the
Hobbs Act. See, e.g., United States, v. Fabian, 312 F.3d 550,
555 (2d Cir. 2002); United States v. Jones, 30 F.3d 276, 286
(2d Cir. 1994). When the crime at issue is inchoate i.e.,
solicitation, conspiracy or attempt the relevant inquiry is
whether the defendant believed that the objective of the robbery
was illegal drugs or the proceeds of a drug deal. See Fabian,
312 F.3d at 555.
A prosecution under 18 U.S.C. § 924(c) requires the Government
to prove that the defendant (1) knowingly (2) used or carried a
firearm (3) during and in relation to a "crime of violence." See
United States v. Desena, 287 F.3d 170, 180 (2d Cir.
2002).*fn2 Alternatively, the Government may prove that "(1)
the defendant conspired to commit a crime involving violence
. . .; (2) the § 924(c) offense was committed in furtherance
of the conspiracy; and (3) the offense was a reasonably
foreseeable consequence of an act furthering the unlawful
agreement." Rosario v. United States, 164 F.3d 729, 734
(2d Cir. 1998) (citing Pinkerton v. United States,
328 U.S. 640 (1946)).
A. Counts Two and Three
Count Two charged Myton, under the Hobbs Act, with the
attempted robbery of a drug dealer in Springfield Gardens,
Queens, on October 31, 1996. Count Three charged him, under §
924(c), with the use of a firearm during that attempted robbery.
At trial, the Government established that members of the
conspiracy planned to rob an individual later identified as
George "Geego" Pessoa ("Pessoa"). On the evening of October 31,
1996, Myton and an accomplice, Frank Lake ("Lake"), accosted
Pessoa as the latter was going into his house. Myton and Lake
pushed Pessoa into the house and began beating him and his wife
with the guns they were carrying. Pessoa fought back and, as a
result, Myton and Lake fled the house without completing the
robbery. The Government also established that one aim of the conspiracy was to rob
individuals who sold cocaine and large quantities of marijuana,
and that Pessoa was targeted for that reason.
The Government's case relied in part on the testimony of
Ferdinand Joseph ("Joseph"), a cooperating witness who had been
one of Myton's co-conspirators. Joseph testified that Myton and
Lake were the men who attempted to rob Pessoa and that both used
guns in the course of the attempted robbery. Joseph also
repeatedly referred to Pessoa as a drug dealer and specifically
testified that the objective of the robbery was "supposed to be
the proceeds of his business" (i.e., "money and weed"). Tr. at
The Government did not rely solely on Joseph's testimony.
Pessoa and his wife confirmed that they were attacked in their
home and beaten with guns by two men, one of whom fit Myton's
description. Moreover, other members of the conspiracy testified
that Myton and Lake "were the people who went in" to rob Pessoa.
Tr. at 336. Yet another co-conspirator, Aaron Myvett ("Myvett"),
testified that the conspiracy generally targeted "[d]rug dealers,
high scale drug dealers" because that was "[w]here the money was
at." Tr. at 511-12. Pessoa confirmed that he worked as a manager
at a health-food store that also sold marijuana from California,
and that he had twice been arrested for possession of several
pounds of marijuana.
Joseph's extensive criminal history was explored in detail at
trial. In addition to his participation in the conspiracy at
issue in the present case, Joseph admitted to being involved in
at least 40 armed robberies and at least three shootings. One of the shootings involved the attempted robbery of a Bronx
drug dealer named "Treasure" Bishop by Joseph and Kingsley
Bernard (another member of the conspiracy and Myton's brother)
("Bernard"). On direct examination, Joseph testified that he and
Bernard (also known as "Lee") confronted Treasure and followed
him into an apartment, where Treasure's brother (another drug
dealer) shot Joseph in the back. Treasure got away in the ensuing
commotion and Joseph ran after him, leaving Bernard in the
apartment with Treasure's brother. Joseph testified that, when he
didn't catch Treasure, he returned to the apartment; as he was
going back, "two shots went off." Tr. at 171. Joseph further
testified that, when he got back to the apartment, he saw that
Bernard had Treasure's brother in a headlock and "was shooting
him like this." Tr. at 172.*fn4
Joseph was extensively cross-examined regarding this incident.
When challenged about his testimony as to who had shot Treasure's
brother, he stated, "Lee [i.e., Bernard] did it, I was there, Lee
did it." Tr. at 247. Joseph admitted: "If I had a gun in my hand,
trust me, the guy that had the gun, he would have got shot
because I would have shot him." Tr. at 248. Positing that
Treasure's brother had Bernard in a headlock, and not the other
way around, defense counsel then asked: "You're sure it wasn't
you who had the gun and shot him because he had Lee in the
headlock." Tr. at 249. Joseph reiterated, "No, it wasn't." Id.
Cross-examination also revealed that, although he understood
that his cooperation agreement was in jeopardy if he did not tell
the truth, Joseph had lied "about some stuff." Tr. at 231. For example, at a Government interview,
Joseph denied using a gun during a jewelry-store robbery; Joseph
later admitted he was armed. Similarly, Joseph initially stated
that he got three or four expensive watches from that robbery,
but admitted at trial that it was "seven or eight." Tr. at 242.
Finally, Joseph told the Government that Myton "do not have
anything to do with [that] robbery," Tr. at 237; when he
implicated Myton in the robbery at trial, Joseph admitted that
his earlier statement was a lie.
B. Counts Six and Seven
Count Six charged Myton with the robbery of a drug dealer in
the Bronx in January 1998. Count Seven charged him with using of
a firearm during that robbery.
At trial, the Government established that Myton and other
members of the conspiracy drove to the Bronx, where they waited
in a blue van for a man in a gray BMW to drive by. Co-conspirator
Anthony Trotman ("Trotman") testified that Myton and Bernard had
previously received information that the man was a large-scale
drug dealer. According to Trotman, when the target of the robbery
showed up, Myton drove the van into the gray BMW; Trotman and
others then pulled the drug dealer out of his car and put him in
Trotman further testified that he and another co-conspirator,
Vere Padmore ("Padmore"), had guns during the robbery, and that
"[i]t was clear that guns were going to be used" to abduct the
drug dealer. Tr. at 422. According to Trotman, Padmore used his
gun to tap the victim on the head to "get his attention" and
"everyone that was present in the van at that time saw what was
going on." Id.
The drug dealer was then taken to Myvett's house in Brooklyn
and beaten. Members of the conspiracy later went to the Bronx, where they
took $36,000 from the drug dealer's wife. Joseph and Myvett
corroborated Trotman's account of these events.
None of the co-conspirators identified the victim of the
robbery; however, Clayton Miller ("Miller") who was not a
co-conspirator had witnessed the collision between the blue van
and the gray BMW, and identified the victim as "Cat." Tr. at 484.
Miller further testified that Cat sold large quantities of
marijuana to out-of-state customers.
Miller's testimony was corroborated in part by Cat's
sister-in-law, Lisa Marie Miller. Ms. Miller confirmed that Cat
(whose real name is Rudolph Lewis) made "several thousand dollars
a week selling marijuana," Tr. at 648, and added that the
marijuana sold came from "[v]arious places, out of state,
California, Boston." Id.
C. Post-Trial Developments
Myton was convicted on Counts Two, Three, Six and Seven. At
some point after trial, Myton's counsel informed the Government
at the time of Mr. Myton's trial, the defense was
aware that the drug dealer/victim of the crime
charged in Counts Six and Seven was not named Rudolph
"Cat" Lewis, as the government alleged at trial, but
was in fact an individual housed at the [Metropolitan
Detention Center] with the defendant at the time of
trial named Leon King who also used an alias of "Leon
Letter from Mitchell A. Golub (May 29, 2003), Ex. A. Following up
on that information, the Government reported back to Myton's
counsel that "[t]wo of the cooperating witnesses who testified at
Mr. Myton's trial [Joseph and Trotman] have now identified Leon
King from a photo array as the victim of the robbery in the
The Government also informed Myton's counsel "that Ferdinand
Joseph did not testify candidly on cross-examination":
Specifically, Joseph recently admitted that it was in
fact he, not Kingsley Bernard [i.e., "Lee"], who shot
and injured two marijuana dealers during that
attempted robbery in the Bronx. During his testimony
at trial, Joseph admitted that he and Bernard
attempted to rob the victims, but maintained that
Bernard had shot the two dealers.
Based on Joseph's perjury, Myton moved for a judgment of
acquittal or, in the alternative, a new trial on Counts Two and
Three. Based on the possible misidentification of the victim of
the 1998 robbery, Myton moved for a judgment of acquittal on
Counts Six and Seven.
A. Counts Two and Three: Joseph's Perjury
1. Motion for New Trial
Witness perjury is grounds for a new trial if the defendant can
show (1) that perjury was, in fact, committed; (2) that, with due
diligence, the perjury could not have been discovered during
trial; (3) that the perjury was material; and (4) that the
perjury was not cumulative. See United States v. Torres,
128 F.3d 38, 48-49 (2d Cir. 1997).*fn5 The Government does not dispute that Joseph committed perjury when he
denied having shot Treasure Bishop's brother. There is also no
contention that Myton or his counsel could have discovered the
perjury before or during trial. Thus, the remaining issues
whether Joseph's perjury was material and non-cumulative are
The standard of materiality is "`whether the jury probably
would have altered its verdict' had it known of the witness'
false testimony." Wallach, 935 F.2d at 458 (quoting Stofsky,
527 F.2d at 246). The court must be left with "a firm belief that
but for the perjured testimony, the defendant would most likely
not have been convicted." Id. at 456.
"[I]n determining whether truthful testimony by the witness
would probably have changed the jury's verdict," a court must
"also assume that the jury would have known that [the witness]
had lied under oath about the matter." Stofsky,
527 F.2d at 246. Thus, perjury can be material in two ways. First, it may
directly bear upon the "the factual elements of the government's
case," id.; for example, evidence that a witness falsely
testified that the defendant committed the crime would obviously
be material. Second, even when it involves a collateral issue,
perjury bears upon the witness's credibility. See id. "[A] witness's credibility could very well have been a
factor of central importance to the jury, indeed every bit as
important as the factual elements of the crime itself." Id.
(citing Seijo, 514 F.2d at 1363); see also United States v.
White, 972 F.2d 16, 20 (2d Cir. 1992) ("The credibility of a
witness who testifies as to substantive facts is critical in the
trial of a case."). "The importance of evidence [of perjury] is,
of course, lessened when the perjury involves some collateral
matter concerning the witness, rather than facts relevant to the
merits of the case." White, 972 F.2d at 20-21.
A witness's perjury is most likely to be material when the
witness supplied the only evidence supporting the conviction.
See United States v. Wong, 78 F.3d 73, 83 (2d Cir. 1996). "But
where independent evidence supports a defendant's conviction, the
subsequent discovery that a witness's testimony at trial was
perjured will not warrant a new trial." Id.; see also White,
972 F.2d at 22 (affirming denial of new trial where jury
convicted defendant only on counts where other evidence
corroborated testimony of witness who committed perjury).
A defendant moving for a new trial based on perjury must show
that the perjury "is so . . . non-cumulative that its admission
would probably lead to an acquittal." Gallego, 191 F.3d at 161
(citations and internal quotation marks omitted). Perjury can be
cumulative of other impeachment evidence. See, e.g., White,
972 F.2d at 22 (concluding that evidence that witness lied at trial
about prior drug use "would have been merely the sort of
cumulative impeachment material that is routinely held
insufficient to warrant a new trial"). Whether perjury constitutes cumulative impeachment evidence is
a case-specific inquiry, for which the Second Circuit has
provided few concrete rules. In Seijo, the court held that,
compared to a witness's past drug use and status as a cooperating
witness, perjury "has a different and more serious bearing" on
credibility. See 514 F.2d at 1364. Similarly, in Wallach, the
court held that newly discovered evidence that a witness had lied
about having given up gambling "[could not] be said to constitute
merely cumulative impeaching material." 935 F.2d at 459 (quoting
Seijo, 514 F.2d at 1363).
On the other hand, perjury has been deemed cumulative when the
other impeachment evidence specifically involved the witness's
tendency to tell the truth. See United States v. Petrillo,
821 F.2d 85, 90 (2d Cir. 1987) (concluding that perjury was
cumulative because "ample [other] evidence was introduced to show
[the witness's] propensity and motive to lie about his
involvement."); United States v. Peck, 175 F. Supp. 2d 526, 531
(S.D.N.Y. 2001) (concluding that, because witness admitted to,
inter alia, lying during government's investigation, "the jury
had ample reasons to question [his] credibility.").
Joseph's perjury related solely to a collateral issue that has
no bearing on the substantive factual elements of the
Government's case. The perjury could, however, have had an effect
on the jury's assessment of Joseph's credibility. The question,
then, is whether knowing that Joseph lied about shooting Treasure
Bishop's brother would have affected his credibility to the point
that the Court is left with "a firm belief that but for the
perjured testimony, the defendant would most likely not have been
convicted." Wallach, 935 F.2d at 456.
i. Attempted Robbery and Use of a Firearm
Independent evidence established Myton's involvement in the
attempted robbery of Pessoa and his use of a firearm during the
attempt. For that reason, the Court cannot conclude that knowing
about Joseph's perjury would have changed the jury's findings on
those elements of Counts Two and Three.
ii. Interstate Commerce
The Government was also required to show a sufficient nexus
between the attempted robbery and interstate commerce. See
Elias, 285 F.3d at 188. Without such a showing, Myton could not
have been convicted. See United States v. Perrotta,
313 F.3d 33, 36 (2d Cir. 2002) (reversing conviction because "the link
between the crime and interstate commerce is simply too
attenuated to support federal Hobbs Act jurisdiction").
Robbery of an individual even in the individual's home has
a sufficient nexus to interstate commerce "so long as the
evidence supports the conclusion that the robbery targeted the
assets of a business [engaged in interstate commerce]."
Wilkerson v. United States, 361 F.3d 717, 731 (2d Cir. 2004).
Thus, robbery of the proceeds of drug dealing can be prosecuted
under the Hobbs Act. See Fabian, 312 F.3d at 555 ("It is clear,
then, that under our precedent loan sharking and illegal drug
transactions fall within the scope of the Hobbs Act."); see also
Wilkerson, 361 F.3d at 731 ("[W]e have affirmed Hobbs Act
convictions where the victims' businesses did not comply with all
of the formalities observed in the legitimate business world and,
indeed, even where the victims engaged in the buying and selling
of contraband."). Thus, the Government sought to show that Myton intended to rob Pessoa because he was a drug dealer. See
Fabian, 312 F.3d at 555 (affirming conviction for attempted
robbery under the Hobbs Act because the defendant "believed he
was robbing a loan shark and the proceeds of a drug deal").
Unlike the other elements of the offenses, the evidence tying
the attempted robbery to interstate commerce was thin; only
Joseph specifically testified that the objective of the attempted
robbery of Pessoa was "supposed to be the proceeds of his
business" (i.e., "money and weed"). Tr. at 183. Nevertheless, as
the Court concluded at the oral argument on Myton's post-trial
motions, knowing about Joseph's perjury would not have affected
the jury's decision to credit his testimony on that issue.
First, Joseph's credibility was subject to attack on numerous
other grounds. To be sure, his perjury had a "a different and
more serious bearing," Wallach, 935 F.2d at 458, than some of
those grounds. For example, Joseph's perjury bears more directly
on his tendency to tell the truth than does his extensive
criminal history and his status as a cooperating witness. Cf.
Seijo, 514 F.2d at 1364 (holding that new trial was warranted
where cooperating witness had disclosed past use of opium and use
and sale of heroin, but lied about prior conviction for marijuana
possession). On the other hand, Joseph admitted to lying about
other aspects of his criminal history and was thoroughly
cross-examined about his involvement in the shooting of Treasure
Bishop's brother; thus, Joseph's perjury was, at least to some
extent, cumulative of other evidence bearing on his tendency to
tell the truth.
Moreover, Joseph's testimony that the intended objective of the
attempted robbery was the proceeds of Pessoa's drug business was
corroborated by (1) Myvett's testimony that an overarching goal of the conspiracy was to rob
drug dealers, and (2) Pessoa's testimony that he managed a store
where marijuana from California was sold and had twice been
arrested for possession of large quantities of marijuana. At oral
argument on his post-trial motions, Myton argued that this
evidence was insufficient to establish that the objective of this
particular robbery was the proceeds of drug dealing. The Court
need not decide, however, whether Myvett and Pessoa's testimony
would be sufficient, standing alone, to support a finding that
Pessoa was targeted for the proceeds of his deal dealing; the
point is that their testimony bolstered Joseph's testimony as to
the objective of the attempted robbery, and thereby minimized the
effect that his perjury would have had on that issue. Cf.
White, 972 F.2d at 22 (affirming denial of new trial where jury
convicted defendant only on counts where other evidence
corroborated testimony of witness who committed perjury).
In sum, the jury, though unaware of Joseph's perjury, had ample
other reasons to question his credibility. They were nevertheless
entitled to credit his corroborated testimony concerning the
elements of the Government's case. Thus, the Court was not left
with a "firm belief," Wallach, 935 F.2d at 456, that "the jury
probably would have altered its verdict if it had the opportunity
to appraise the impact of the newly-discovered evidence [of
Joseph's perjury]." Stofsky, 527 F.2d at 246.
2. Motion for Judgment of Acquittal
"[U]pon a motion for judgment of acquittal, `the Court must
determine whether upon the evidence, giving full play to the
right of the jury to determine credibility, weigh the evidence,
and draw justifiable inferences of fact, a reasonable mind might
fairly conclude guilt beyond a reasonable doubt.'" United States v.
Guadagna, 183 F.3d 122, 129 (2d Cir. 1999) (quoting United
States v. Mancini, 725 F.2d 862 (2d Cir. 1984)). In considering
the motion, the Court must view the evidence in the light most
favorable to the Government, and must draw all permissible
inferences in the Government's favor. See id. Moreover, "[i]t
is not for the court on a [motion for judgment of acquittal to
make credibility determinations." United States v. Autuori,
212 F.3d 105, 114 (2d Cir. 2000) (citation and internal quotation
Myton's motion for judgment of acquittal based on Joseph's
perjury merits no extended discussion. As explained above,
Joseph's perjury raises only a credibility issue, which the Court
cannot resolve on a motion for judgment of acquittal. In other
words, his post-trial perjury notwithstanding, Joseph's testimony
is still evidence supporting Myton's convictions on Counts Two
B. Counts Six and Seven: Victim Misidentification
Myton's motion for a judgment of acquittal on Counts Six and
Seven is based on Trotman and Joseph's post-trial identification
of Leon King as opposed to "Cat" Lewis as the victim of the
1998 robbery. Taken in the light most favorable to the
Government, however, the evidence was sufficient to support the
convictions on those counts. Trotman's testimony established that
Myton was involved in the 1998 robbery of a drug dealer in the
Bronx; Joseph and Myvett corroborated this testimony. On those
facts alone, Myton could properly have been convicted. See
Jones, 30 F.3d at 286 (affirming conviction under Hobbs Act for robbery of undercover agent during drug
The identity of the victim was simply not part of the
Government's burden of proof. At oral argument, Myton argued that
Miller's testimony was nevertheless relevant because it
corroborated the co-conspirators' version of events. It is
certainly true that, in addition to testifying that Lewis was the
victim, Miller testified that he saw a blue van collide with a
gray BMW and then saw several men put the driver of the BMW into
the van. Even without that testimony, however, there is
sufficient evidence to support the convictions on Counts Six and
Seven; the sufficiency of the evidence is the dispositive issue
on a motion for a judgment of acquittal. See Guadagna,
183 F.3d at 129.
Moreover, the corroborating effect of Miller's testimony was
limited to confirming that a blue van collided with a gray BMW,
and that the driver of the BMW was then pulled out of his car and
put into the van. The co-conspirators' post-trial identification
of the victim of the robbery as Leon King does not directly
contradict Miller's testimony on those points; at best, evidence
that the victim was King calls into question Miller's powers of
perception and recollection; i.e., his credibility. As previously
explained, the Court cannot resolve credibility issues on a
motion for judgment of acquittal. See Autuori, 212 F.3d at 118.
Myton's counsel has expressly disclaimed seeking a new trial on
Counts Six and Seven. See Tr. of Jun 23, 2003, at 7. The Court could,
however, sua sponte convert the motion for judgment of
acquittal into a motion for new trial "to avoid a miscarriage of
justice." See United States v. Clemente, 2004 WL 97689, at *11
(S.D.N.Y. 2004) (internal quotation marks omitted). Such
circumstances are not present here, however, because a new trial
on those counts is not warranted.
The co-conspirators' post-trial identifications might suggest a
motion for new trial based on newly discovered evidence.*fn8
As previously explained, however, a motion for a new trial based
on newly discovered evidence must show, inter alia, that the
evidence was newly discovered (i.e., "that, with due diligence,
[the defendant] could not have discovered the evidence during
trial," Torres, 128 F.3d at 48-49), and was material. Outside
the perjury context, newly discovered evidence is material if it
"would probably lead to an acquittal." United States v.
Locascio, 6 F.3d 924, 949 (2d Cir. 1993) (internal quotation
marks omitted). Neither element is satisfied here.
As to whether the evidence of misidentification was "newly
discovered," the Government represents that, "at the time of Mr.
Myton's trial, the defense was aware that the drug dealer/victim
of the crime charged in Counts Six and Seven was not named
Rudolph `Cat' Lewis, as the government alleged at trial, but was
in fact an individual housed at the MDC with the defendant at the
time of trial named Leon King who also used an alias of `Leon
Dorman,'" Letter from Mitchell A. Golub (May 29, 2003), Ex. A.
Myton does not dispute that representation. Thus, Myton cannot
contend that the post-trial identifications were "newly discovered."
With respect to materiality, the independent evidence
supporting the convictions and the limited effect of the
post-trial identifications on Miller's credibility militate
against a determination that the cooperating witnesses'
post-trial identifications are sufficiently material to warrant a
new trial. The Court simply cannot credit that a conflict between
Miller on the one hand, and Trotman and Joseph on the other, as
to the identity of the victim of the 1998 robbery would probably
have led to an acquittal on Counts Six and Seven.
Joseph's perjury is not grounds for a judgment of acquittal or
a new trial on Counts Two and Three. Furthermore, the possible
misidentification of the victim of the 1998 robbery is not
grounds for a judgment of acquittal or a new trial on Counts Six