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United States v. Eldridge

United States District Court, W.D. New York

August 28, 2017

UNITED STATES OF AMERICA
v.
THAMUD ELDRIDGE, et al., Defendants.

          DECISION AND ORDER

          RICHARD J. ARCARA United States District Judge.

         INTRODUCTION

         Defendant Thamud Eldridge and defendant Kevin Allen have moved to vacate their convictions and for a new trial. (Dkt. Nos. 682 and 695, 704) For the following reasons, Eldridge and Allen's motions are denied in their entirety.

         BACKGROUND AND RELEVANT FACTS

         In this case, the Government contended that Eldridge and Allen were members of a criminal organization that engaged in the distribution of cocaine, cocaine base, marijuana, and heroin and also committed acts of violence in furtherance of their drug trafficking enterprise, including murder, robbery and extortion. It was alleged that defendants and others targeted and robbed drug dealers of money and controlled substances, and that they used firearms, extortion and violence to expand their territory and power. In addition to various racketeering, narcotics, and weapons crimes, the Government alleged that Eldridge and Allen kidnapped and robbed Woodie Johnson, a cocaine dealer, in February of 2005 and robbed and murdered Sam Jones, also a cocaine dealer, in April of 2005. The Government also alleged that, in a separate incident in April of 2005, Eldridge robbed and murdered Thedrus Laster, a marijuana dealer.

         Indictment

         On June 20, 2012, defendants Eldridge and Allen were charged, in a Superseding Indictment (“Indictment”), with racketeering (Count 1, in violation of 18 U.S.C. §1962(c)); racketeering conspiracy (Count 2, in violation of 18 U.S.C. §1962(d)); narcotics conspiracy (Count 3, in violation of 21 U.S.C. §846); possession of firearms in furtherance of drug trafficking (Count 4, in violation of 18 U.S.C. §§924(c)(1) and (2)); kidnapping in aid of racketeering (Count 5, in violation of 18 U.S.C. §§1959(a)(1) and (2)); Hobbs Act robbery (Count 6, in violation of 18 U.S.C. §§1951 and 2), and possess and brandish of a firearm in furtherance of violent crime (Count 7, in violation of 18 U.S.C. §§924(c)(1)(A)(ii) and 2). (Dkt. No. 164) Counts 5, 6 and 7 related to the kidnapping and armed robbery of Johnson. Defendant Galen Rose was charged with possession with intent to distribute marijuana (Count 8, in violation of 21 U.S.C. §841(a)(1)) and conspiracy to distribute marijuana (Count 9, in violation of 21 U.S.C. §846). Id. Eldridge was charged in Count 10 (murder in aid of racketeering, in violation of 18 U.S.C. §§1959(a)(1) and 2), Count 11 (Hobbs Act robbery, in violation of 18 U.S.C. §§1951 and 2), and Count 12 (discharge of firearm causing death, in violation of 18 USC §§§924(c)(1)(A)(iii), 924(j)(1) and 2), relating to the robbery and death of Laster on April 3, 2005. Id. Rose was also charged in Count 11 (Hobbs Act robbery) and Count 12 (discharge of a firearm causing death), related to the robbery and death of Laster. Id. Eldridge and Allen were charged in Count 13 (murder in aid of racketeering), Count 14 (Hobbs Act robbery), and Count 15 (discharge of firearm causing death), relating to the robbery and death of Jones on April 6, 2005. Id.

         Kashika Speed, a fourth defendant, was also charged in a number of counts including racketeering, racketeering conspiracy, narcotics conspiracy, possession of firearms in furtherance of drug trafficking, as well as the counts related to the kidnapping and robbery of Johnson, the robbery and murder of Laster, and the conspiracy to rob Jones. Speed entered into a plea agreement with the Government on June 16, 2014. On October 2, 2014, Speed was sentenced by the Court to a period of incarceration of 192 months.

         Eldridge was further charged in Count 16 (possession and discharge of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. §§924(c)(1)(A)(iii) and 2) and Count 17 (felon in possession of firearm, in violation of 18 U.S.C. §§§922(g)(1), 924(a)(2) and 2). (Dkt. No. 164) On January 7, 2016, the Court issued a Decision and Order severing Counts 16 and 17 from the rest of Indictment. (Dkt. No. 530)

         Trial and Jury Verdict

         On January 6, 2016, a jury trial commenced as to defendants Eldridge, Allen and Rose on Counts 1 through 15 of the Indictment. Following a five and one-half week trial, the jury found Eldridge guilty of racketeering (Count 1). (Dkt. No. 617) With respect to the racketeering act findings, the jury found that Eldridge conspired to distribute controlled substances, attempted to commit a robbery at 87 Girard Street, kidnapped and robbed Johnson on February 23, 2005, and possessed cocaine with intent to distribute on February 23, 2005. Id. The jury found Eldridge not guilty as to the racketeering acts involving the robbery of Larry Kemp and the intentional murder of Laster. The jury was unable to reach a verdict as to the racketeering acts which involved the robbery of Laster and the causing of his death in the course of the robbery. Id. The jury was also unable to reach a verdict as to any of the racketeering acts which involved the robbery and murder of Jones. Id. The jury found Eldridge guilty of racketeering conspiracy (Count 2), narcotics conspiracy (Count 3), possession of firearms in furtherance of drug trafficking (Count 4), and the kidnapping and robbery of Johnson at gunpoint (Counts 5, 6 and 7). Id. The jury found Eldridge not guilty of murder in aid of racketeering as to Thedrus Laster (Count 10). Also as to Eldridge, the jury was unable to reach a verdict on the robbery of Laster and the use of a firearm causing his death (Counts 11 and 12), and was unable to reach a verdict as to the murder and robbery of Jones as well as the use of a firearm causing his death (Counts 13, 14 and 15). Id. The jury found Allen guilty of racketeering (Count 1). Id. With respect to the racketeering act findings, the jury found that Allen conspired to distribute controlled substances, and that he conspired to rob Johnson on February 23, 2005. Id. The jury found that Allen did not commit the robbery of Larry Kemp, and was unable to reach a verdict as to whether Allen kidnapped Johnson and possessed cocaine with intent to distribute on February 23, 2005. Id. The jury was also unable to reach a verdict as to whether Allen committed the racketeering acts involving the robbery and murder of Sam Jones. Id. The jury found Allen guilty of racketeering conspiracy (Count 2), narcotics conspiracy (Count 3), and possession of firearms in furtherance of drug trafficking (Count 4). The jury found Allen guilty of conspiring to rob Woodie Johnson (Count 6), but was unable to reach a verdict as to whether Allen kidnapped Johnson in aid of racketeering and used a firearm to rob and kidnap Johnson (Counts 5 and 7). Also with respect to Allen, the jury was unable to reach a verdict as to the murder and robbery of Jones as well as the use of a firearm causing his death (Counts 13, 14 and 15). The jury found Rose guilty of possession with intent to distribute marijuana (Count 8) and conspiracy to possess with intent to distribute marijuana (Count 9). The jury was unable to reach a verdict as to whether Rose robbed Laster or discharged a firearm causing his death (Counts 11 and 12).[1]

         Following the verdict, motions were filed by both the Government and defense counsel regarding whether retrial of Eldridge and Allen on the hung counts should be deferred until there was a resolution of the appeal of the counts of conviction, when the Court should try the severed counts (Counts 16 and 17) as to Eldridge, and whether the severed counts should be tried together with the hung counts. Also during that time, Eldridge's trial counsel filed a motion to withdraw from the case. The Court granted the motion to withdraw, appointed new counsel for Eldridge and provided counsel time to familiarize himself with the record. On October 4, 2016, the Court issued a Decision and Order declaring a mistrial as to the hung counts and granting the Government's request to defer a trial of the hung counts until the counts of conviction were resolved through post-trial motions and any subsequent appeals. (Dkt. No. 677) The Court also granted Eldridge's request to adjourn the trial of the severed counts pending the outcome of any post-trial motions. Id. The Court reasoned, in part, that combining a potential trial of the hung and severed counts until after the conclusion of the appeal of the counts of conviction would benefit judicial economy and Eldridge, in that he would only face one potential trial as opposed to two and the Government, depending on the outcome of the appeal, may decide not to pursue all of the remaining counts against him. Id.

         Allen filed a motion to vacate his counts of conviction and for a new trial pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure on January 17, 2017. (Dkt. No. 682) Eldridge filed a motion to vacate his counts of conviction and for a new trial pursuant to the same on March 3, 2017, and filed a supplemental affidavit in support of his motion on April 4, 2017. (Dkt. No. 695, 704) The Government filed responses to both motions. (Dkt. Nos. 690 and 703) The Court heard oral argument as to defendants' motions on July 28, 2017, at which time the Court considered the matter submitted.

         DISCUSSION

         Rule 29

         Pursuant to Federal Rule of Criminal Procedure 29(a), a district court shall enter a judgment of acquittal as to “any offense for which the evidence is insufficient to sustain a conviction.” See Fed. R. Crim. P. 29(a). A motion for a judgment of acquittal may be granted after the evidence on either side is closed if the evidence is insufficient to sustain a conviction for the crime charged. See Fed. R. Crim. P. 29(a). The Supreme Court has instructed that the standard, under Rule 29, is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Castelin, 597 Fed.Appx. 22 (2d Cir. 2015); accord Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Court must resolve all inferences in favor of the prosecution, and must view the proof in the light most favorable to the government. See United States v. Puzzo, 928 F.2d 1356, 1361 (2d Cir. 1991). A defendant challenging the sufficiency of the evidence “bears a heavy burden.” United States v. Griffin, 284 F.3d 338, 348 (2d Cir. 2002). To that end, in resolving a Rule 29 motion, a court must not assess witness credibility, resolve inconsistent testimony against the verdict, or otherwise weigh the significance of the evidence. See United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000). See also United States v. Cote, 544 F.3d 88, 93 (2d Cir. 2008) (a court should not grant a Rule 29 motion by rejecting government evidence as not credible); United States v. Bala, 236 F.3d 87, 93-94 (2d Cir. 2000) (a court must “defer to the jury's assessment of witness credibility and the jury's resolution of conflicting testimony”).

         Defendant Allen: Robbery of Woodie Johnson

         Allen argues that there was insufficient evidence to convict him of conspiring to rob Woodie Johnson on February 23, 2005 and therefore the Court should enter a judgment of acquittal as to Count 1 (racketeering), Count 2 (racketeering conspiracy) and Count 6 (Hobbs Act robbery).[2] Allen contends that the testimony of Steve Martin, a witness to the planning of the robbery, and Johnson, the victim of the robbery, was wholly inconsistent and could not be reconciled by a rational trier of fact, and that Martin was not a credible witness. Allen further argues that since the jury hung on whether he actually robbed Johnson (Counts 5 and 7), the testimony of Martin was insufficient to convict him of conspiring to rob Johnson. Contrary to defendant's contentions, the Court finds sufficient evidence to sustain the conviction for conspiracy to rob Johnson.

         During the trial, Martin testified that he was involved in drug dealing on Montana Street in the City of Buffalo from the time he was 14 years old. (Dkt. No. 594, pg. 9) Martin testified that he was a member of the Montana Bridge Gang from the mid 1990's through the early 2000's and various times after that when he was not incarcerated. (Id. at 10) He testified that he and other gang members would sell heroin and crack, and commit burglaries and robberies. (Id.) Martin testified that he and Allen were close friends, that they lived in the same neighborhood and that they have known each other since the 1980's. (Id. at 11, 12-13) He testified that Allen and Kashika Speed, Eldridge's cousin, were members of the Montana Bridge Gang. (Id. at 16) Martin testified that, from the 90's through 2005, he saw Allen sell bundles of heroin and possess firearms while selling drugs. (Id. at 16, 29) Martin testified that when he and Allen were incarcerated together at Gouvernor Correctional Facility, they talked about robbing Johnson and other drug dealers. (Id. at pg. 34) He testified that Allen told him that he knew where Johnson lived and that Johnson was “a pretty big guy in the drug game.” (Id. at 39) Martin testified that he and Allen spoke about robbing Johnson quite a few times and that Allen told him “he needed a team”. (Id. at 39, 41)

         Martin further testified that after he and Allen were released from prison, they would meet at the Island Store on the corner of Montana Street and Genesee Street in the city of Buffalo and discuss robberies. (Id. at 46) Allen told Martin that “the robberies was on and he was doing a lot of robberies”, and that Martin should get involved with him. (Id.) Martin further testified that Allen informed him that he was participating in robberies with Eldridge and Speed. (Id. at 53) Martin testified that there came a time when he met with Eldridge, Allen and Speed in the basement of Leo Jones' home on Newburgh Street in Buffalo. (Id. at 56-58) They spent an hour talking about robbing drug dealers, including Johnson. (Id. at 58-59) Martin testified that between January and May of 2005, he met with Allen, Speed and Eldridge in the Newburgh Street home approximately 12 times, and that robbing drug dealers, specifically Johnson and Sam Jones, Jr., was discussed during every meeting. (Id. at 64-65)

         Martin testified that on February 23, 2005, Allen drove him over to the Newburgh Street home at approximately 5:30 p.m., and told him that tonight they were going to rob Johnson. (Id. at 73-74) Once there, Martin met with Allen, Speed, Eldridge and another drug dealer from the neighborhood. (Id.) Martin testified that Allen, who was “doing the talking”, indicated that they would rob Johnson that evening. (Id. at 76-77). Martin testified that both Eldridge and Allen had guns, and that Allen stated they would go to Johnson's home on Kensington Avenue, wait for him to arrive, and rob him. (Id.) Martin testified that because he was on parole and had a curfew, he then went home to check in. (Id.) He intended to return around 11:00 p.m. to participate in the robbery. (Id.) Martin testified that after checking in with his parole officer, he went to Montana Street to sell drugs. (Id. at 78) He later returned to the house on Newburgh Street to “check on the robbery”. (Id. at 78) However, no one answered the door. (Id.) Martin testified that Allen came to his house the next day and told him that he missed the robbery. (Id. at 78-79) Allen told him that they went to Johnson's home on Kensington Avenue, that Johnson was outside with this dog, and that they “threw [Johnson] in his truck”. (Id. at 80) Allen told Martin that Johnson made a phone call and told someone to put two kilograms of cocaine and $30, 000 on a porch, which they took. (Id.) He stated that Eldridge kept one kilogram of cocaine and that he and Speed split the other kilogram. (Id.) Martin stated that Allen bought shoes for Martin's son for his birthday, and that he gave Martin some money. (Id. at 80-81)

         During cross-examination Martin was asked to confirm the date of the Johnson robbery and Martin stated that he did not remember the date or time. Dkt. No. 595, pg. 20. Martin was asked if there was a reason that he recalled that Allen came over the very next day, February 24, 2005, and Martin answered no. (Id. at 20-21) Defense counsel then asked Martin if he told the grand jury that the reason he remembered that Martin visited the next day was because it was his son's birthday. Id. However, his son's birthday was not was not until March 6, while the day after the robbery was February 24, 2005. Id.

         Woodie Johnson testified that in 2004 and 2005 he was selling drugs and that he had the ability to obtain kilograms of cocaine. Dkt. No. 597, 9-10. Also at that time Johnson was working in the linen department at Millard Fillmore Hospital from 6:00 a.m. to 2:30 p.m. (Id. at 16) Johnson testified that upon completion of his shift at 2:30 p.m., he would engage in drug trafficking. Id. He testified that, at that time, he was living on Kensington Avenue in Buffalo. (Id. at 17) Johnson testified that on February 23, 2005, he left his job at Millard Fillmore at 2:30 p.m., at which time he received a call to pick up his dog from the veterinarian before 5 p.m. (Id.) He also received a call indicating that Randy Jarrett wanted to purchase two kilograms of cocaine from him. (Id. at 27) Johnson testified that he picked up his dog and then proceeded to his home on Kensington to pick up the cocaine, which he had stored in one of his cars. (Id. at 28-30) Johnson then traveled to Jarrett's house to drop off the cocaine, which was about ten minutes away. (Id. at 28-30) Johnson testified that he returned to his home and brought his dog inside, and that he saw footprints outside of his back window. (Id. at 35) He went outside to investigate because he was concerned that someone had broken into his garage. (Id.) Johnson went to look in his garage window, and someone came up from behind him and told him not to move. (Id. at 27) Johnson then went on to testify about the kidnapping and robbery, and identified Allen as one of his abductors. (Id. at 42-58)

         Allen argues principally that Martin and Johnson's testimony about the timeline of the robbery cannot be reconciled, since according to Johnson the robbery occurred in the late afternoon, while Martin testified that the planning occurred in the late afternoon while the robbery happened later that evening. It is clear from the testimony that Martin was not present for the actual robbery. Indeed, Martin testified only that the planning occurred around 5:30 p.m., and that the robbery was anticipated to happen later that evening. He never identified a time that the robbery actually occurred. Johnson testified that the robbery happened after he left work at 2:30 p.m., picked up his dog at the veterinarian, picked up two kilograms of cocaine, dropped the cocaine at Jarett's home nearby, and then returned home. While Martin's testimony may suggest that Allen and others planned the robbery to occur later at night and Johnson's testimony indicates that it in fact occurred in the late afternoon or early evening, the accounts are not directly contradictory or inconsistent. Equally unavailing is Allen's argument that Martin's testimony is not credible because he previously testified that the robbery occurred on a different day, specifically the day before his son's birthday. Any inconsistency in the testimony as to the actual time and date of the planning and commission of the robbery is to be resolved by the jury in determining the sufficiency of the evidence and the credibility of the witness accounts, and that resolution cannot be disturbed by this Court on a Rule 29 motion. See United States v. O'Connor, 650 F.3d 839, 855 (2d Cir. 2011) (“[T]estimonial inconsistencies…revealed on cross-examination” are for the jury to resolve.); United States v. Persico, 645 F.3d 85 (2d Cir. 2011) (“Where there are conflicts in the testimony, we must defer to the jury's resolution of the weight of the evidence and the credibility of the witnesses.”); United States v. Tropiano, 418 F.2d 1069, 1074 (2d Cir. 1969) (it is the role of the jury, rather than the court, to determine whether a witness who was “inaccurate, contradictory, and even untruthful in some respects [was still] entirely credible in the essentials of his testimony”).

         The Court also rejects Allen's argument that a rational fact finder could not have found Martin credible as to the planning of the robbery, since the jury either hung or acquitted on other counts as to which Martin supplied testimony. As previously stated, it is the province of the jury to assess Martin's credibility, and the jury is entitled to credit certain aspects of a witness' testimony while discrediting others. See United States v. Josephberg, 562 F.3d 478, 487 (2d Cir. 2009) (“The jury is free to believe part and disbelieve part of any witness's testimony.”) Finally, the Court rejects Allen's argument that the jury verdict must be overturned because it was unreasonable for a rational fact finder to find Allen guilty of conspiring to rob Johnson (Hobbs Act robbery), but be unable to determine whether Allen kidnapped Johnson in aid of racketeering and used a firearm in the course of robbing and kidnapping him. To the extent that these verdicts are inconsistent, it is well settled that an inconsistent verdict is not a valid basis to overturn the findings of a jury. In United States v. Powell, the Supreme Court upheld a jury's verdict acquitting a defendant of conspiracy to possess and possession of cocaine but convicting her of using a telephone to facilitate those crimes. 469 U.S. 57 (1984). The Supreme Court explained that inconsistent verdicts may be the result of compromise, mistake or leniency on a jury's part, and “the general reluctance to inquire into the workings of the jury…suggest that the best course to take is simply to insulate jury verdicts from review on this ground.” Id. at 68-69.

         Defendant Allen: ...


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