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)).
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.
Count Six charged Myton with the robbery of a drug dealer in
the Bronx in January 1998. Count Seven charged him with using ...