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United States v. Heyward

United States District Court, S.D. New York

November 21, 2017

UNITED STATES OF AMERICA,
v.
CORY HEYWARD and MIGUEL ROMERO, Defendants.

          OPINION & ORDER

          PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE

         This decision resolves post-trial motions by a defendant convicted of offenses arising out of his participation in a Bronx gang known as "18 Park." On November 21, 2016, defendants Raheem Amarizan, Cory Heyward, and Miguel Romero were each convicted, after a three-week jury trial, of conspiracy to commit racketeering in violation of 18 U.S.C. § 1962(d), narcotics conspiracy in violation of 21 U.S.C. §§ 846 & 841(b)(1)(A)-(D), and the use of firearms in connection with the racketeering conspiracy in violation of 18 U.S.C. § 924(c)(1)(A)(iii). On May 1, 2017, Heyward moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, or, in the alternative, for a new trial under Federal Rule of Criminal Procedure 33. These motions were based on two pieces of information the Government learned of and disclosed to the defense after trial-one relating to the credibility of a trial witness, Dontay Mabry, and another relating to a hearsay statement attributed to a co-defendant, Jonathan Rodriguez, who had then been scheduled for a later trial. Dkt. 747 ("D. Mem."). The Government opposed Heyward's motion. Dkt. 780 ("G. Mem."). The Court has deferred sentencing pending resolution of Heyward's motions.

         For the reasons that follow, the Court denies Hey ward's motions.[1]

         I. Background

         A. The Indictment and Trial

         On December 7, 2015, a grand jury returned a superseding indictment against Hey ward and 25 others, alleging participation in a Bronx gang called "18 Park" which was alleged to have participated in violent acts and narcotics dealing in and around a South Bronx housing project, the Patterson Houses. See S2 15 Cr. 445 (PAE) (Dkt. 12).

         On October 31, 2016, Heyward, Amarizan, and Romero went to trial on superseding indictment S6 15 Cr. 445 (PAE) (Dkt. 348), which charged each with the three counts described above.[2] The Government's trial witnesses included five cooperating witnesses who, pursuant to plea agreements, each testified to their participation in 18 Park and the participation of one or more of the three defendants; law enforcement witnesses; and lay witnesses. Of the five cooperating witnesses, four (Diquinn Lacend, Kenneth Jenkins, Keith Ruiz, and Dontay Mabry) specifically implicated Heyward in activities of the gang. The Government's physical evidence included firearms, knives, narcotics, tape-recordings of narcotics transactions, and social media communications (including videos) among members of the gang. As to the defense case, two defendants, Heyward and Romero, testified in their defense, and, as relevant here, Heyward called one character witness, a longtime friend named Andre Reed.

         On November 21, 2016, the jury found all three defendants guilty of all charges. The jury's verdict also made factual findings relevant to sentencing. On the racketeering conspiracy count, the jury found, for each defendant, that an object of the conspiracy involved murder, and that another object involved narcotics distribution. The jury found that it was reasonably foreseeable for Heyward and Amarizan, but not Romero, that the gang's narcotics distribution would involve at least 280 grams of crack cocaine and at least one kilogram of heroin. On the narcotics conspiracy count, the jury made identical findings. On the firearms count, the jury found that Heyward and Amarizan, but not Romero, were responsible for discharging, or aiding and abetting the discharge of, a firearm possessed or used during or in furtherance of the racketeering conspiracy. Dkt. 465 (jury verdict).

         B. Heyward's Post-Trial Motion

         In letters to the defense dated February 17, 2017, the Government disclosed statements that two witnesses had made in post-trial interviews. (These interviews had apparently been conducted in preparation for the next scheduled trial in the 18 Park case.) These statements form the basis for Heyward's post-trial motions.

         The Mabry Statement: First, in February 2017, during an interview with the Government, cooperating witness Mabry informed the Government for the first time that, several years earlier, he had fired a gun in the direction of the Betances Houses in the Bronx, New York. D. Mem at 3; G. Mem. at 24. At the fall 2016 trial, during cross-examination, Heyward's counsel had asked Mabry whether he had been involved in a shooting at the Betances Houses, and Mabry had testified that he had not. Tr. 1637-38.

         The Rodriguez Statement: Second, in February 2017, Raheem Amarizan, who after his conviction at trial began cooperating with the Government, disclosed to the Government that an 18 Park member, co-defendant Jonathan Rodriguez, a/k/a "Bebo, " had stated in jail while in Amarizan's presence that an aspect of the trial testimony of cooperating witness Keith Ruiz was incorrect. At Heyward's trial, Ruiz testified to the murder of Brandon Howard committed by Rodriguez in an apartment building. Ruiz testified that the gang members present for the murder were Rodriguez, Ruiz, Marquis Wright, and Heyward. After trial, however, Amarizan stated that, while in jail, Rodriguez had told Amarizan that only Rodriguez, Wright and Ruiz (i.e., not Heyward) had been present at the time of the Brandon Howard murder. G. Mem. at 25; D. Mem. at 6.

         On May 1, 2017, Heyward moved for a judgment of acquittal under Rule 29 and for a new trial under Rule 33, relying on the newly disclosed Mabry and Rodriguez Statements. Dkts. 746-48. The ...


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