United States District Court, S.D. New York
For Tyrone Brown, Defendant: Eric M. Creizman, LEAD ATTORNEY, Creizman PLLC, New York, NY; Eric Criezman, LEAD ATTORNEY.
For Steven Glisson, also known as " D," , also known as Sealed Defendant 1, Defendant: Elaine Kayuki Lou, James Alfred Mitchell, Ballard Spahr Stillman & Friedman LLP, New York, NY.
For Antoine Chambers, also known as Sealed Defendant 1, also known as Twizzie, Defendant: Joshua Lewis Dratel, Law Offices of Joshua L. Dratel, P.C., New York, NY.
For USA, Plaintiff: Amy Ruth Lester, Santosh Shankaran Aravind, U.S. Attorney's Office, SDNY (St Andw's), New York, NY; Negar Tekeei, United States Attorney's Office, S.D.N.Y., New York, NY.
OPINION AND ORDER
LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE.
After a 10-day jury trial, Defendant Antoine Chambers was convicted of conspiracy to rob, robbery and kidnapping, and acquitted of possession of a firearm during a crime of violence, all violations of the Hobbs Act and the Federal Kidnapping Statute, 18 U.S.C. § § 924(c), 1201, 1951. The Government presented its evidence
over three days. Defendant did not put on a case. The jury deliberated for five full days before delivering its verdict.
Defendant moves pursuant to Federal Rule of Criminal Procedure 29(c) for a judgment of acquittal based on the insufficiency of the evidence, and pursuant to Rule 33 for a new trial based on the lack of a pretrial Wade hearing and alleged prosecutorial misconduct. The Government moves to vacate the Court's adverse credibility finding concerning testimony of New York City Police Department (" NYPD" ) Detective Ellis Deloren, which led to the Court to strike the identification testimony of a witness. For the reasons below, all three motions are denied.
The parties agree that the central contested fact at trial was the identity of one of four coconspirators who participated in a kidnapping and robbery, i.e., whether the Government " had the wrong guy." Although Defendant did not put on a case, the theory of the defense was clear. To sustain its burden on the issue of identity, the Government offered two eyewitnesses and substantial circumstantial evidence. The undisputed evidence of what happened on the night of the robbery and the Government's evidence to show that Defendant was one of the perpetrators are summarized below.
A. The Robbery and Kidnapping
Shortly after midnight on March 25, 2013, David Barea went to Tyrone Brown's apartment on Croes Avenue in the Bronx to collect money that Brown owed him for drugs. Video from a security camera shows that Barea arrived at Brown's house at 1:17 a.m., and Brown let Barea in at 1:18 a.m. At 1:19 a.m., a car pulled into the view of the camera, two men got out and made their way to Brown's door. One of the two men was Steven Glisson, who was carrying a .38 revolver. The second man was dressed in black, had covered his face from the nose down with a black scarf, wore a black hat and gloves, had an automatic gun at his waist and carried a hammer. According to the Government, this second man was Defendant.
While the two men waited outside Brown's door, inside the apartment, Brown gave Barea $800. At 1:26 a.m., Barea opened the door to leave Brown's apartment, and the two men pushed Barea back inside. The second man -- whom Barea called the " tall guy" -- and Barea tussled until Glisson threatened Barea with his gun. Barea stopped fighting, but the " tall guy" kept hitting Barea with the hammer on his back and legs, all the while telling Barea not to look at his face. Glisson and the " tall guy" eventually took all of Barea's money, about $900, including what Brown had given him. They threatened Barea and asked where his money was, apparently expecting him to be carrying more cash. Barea told them that he had more money at home, even though he knew he did not. Glisson and the " tall guy" bound Barea's hands, covered his face, and at 1:34 a.m., according to the security camera, took Barea to their car. The four men -- the two robbers, an unidentified coconspirator and Barea -- then drove to Barea's apartment on Overing Street in the Bronx. The two robbers and Barea went into the apartment, where Barea's wife, Emma Torruella, was. When they discovered he had no money there ( id. ), the " tall guy" again beat Barea with the hammer until
Torruella told the robbers that the money was at her mother's house.
The " tall guy" forced Torruella to their car so she could take them to her mother's home. She described the car as a black four-door sedan with a license plate whose last four digits were 7788. The " tall guy" drove the car, Torruella sat in the front passenger seat, and the unidentified man sat in the backseat. As she directed them to her mother's house, the " tall guy" took off his mask.
Once they reached Torruella's mother's apartment, Torruella knocked on the apartment door while the " tall guy" and the unidentified man waited in a brightly-lit hallway outside the apartment. Torruella's teenage daughter, Demi Torres, answered the door. Torruella went into a bedroom to retrieve the money while the " tall guy" waited inside the apartment. Torruella got a bag of money from her mother's room, handed it to the " tall guy" and left the apartment with him.
Upon their return to Barea's apartment, the " tall guy" gave the bag of money to Glisson and beat Barea with the hammer again. Eventually, the two robbers ran out of the house with the money.
B. Eyewitness Testimony
1. Emma Torruella
Emma Torruella had a difficult time on the witness stand. After she described her ordeal during the early morning hours of March 25, 2013, the Government asked Torruella to identify the " tall guy" in the courtroom. She identified Defendant. Torruella was upset and, at her request, was temporarily excused from the witness stand. The jury was excused for a break.
On cross-examination, defense counsel pressed Torruella about her identification of Defendant, both in court as well as her earlier selection of his photo from a photo array. On redirect, as the Government returned to the issue of her identification of Defendant, Torruella again was upset. At her request, she again was excused from the witness stand. When she returned to complete here redirect testimony, she recanted her prior in-court identification of Defendant:
Q. Ms. Torruella, I have two more questions. Do you want to be here today?
A. Right now, no.
Q. Ms. Torruella, sitting here today, do you believe that the person sitting at the second table with the blue shirt is the tall guy?
Q. Why don't you believe that?
A. Features are different. I can't. I'm sorry.
Q. Ms. Torruella, can you please explain that answer.
A. It looks like him. His eyes, but something is not -- I can't explain.
Q. I can't understand you. I'm sorry.
A. I just keep looking. It's not him.
[AUSA] ARAVIND: Your Honor, may I have a moment?
Q. Ms. Torruella, I don't want you to look at government Exhibit 1000 [the photo array from which Torruella identified Defendant]. I want you to put that to the side.
[AUSA] ARAVIND: Your Honor, may I have just one moment?
THE COURT: Yes.
Q. Ms. Torruella, you said that something about the hair and facial part was different. Can you explain?
A. He had hair, I know that grows and you can cut it. Just looking at him from over there, it's not him. He was more -- the ...