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U.S. v. MYTON

June 14, 2005.

UNITED STATES OF AMERICA
v.
RASENE MYTON, Defendant.



The opinion of the court was delivered by: FREDERIC BLOCK, District Judge

MEMORANDUM

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.

  I. BACKGROUND

  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 183.*fn3

  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 ...


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