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United States v. Jenkins

United States District Court, W.D. New York

November 22, 2017

UNITED STATES OF AMERICA,
v.
ANDRE JENKINS a/k/a Little Bear, Defendant.

          DECISION AND ORDER

          Elizabeth A. Wolford, Judge.

         BACKGROUND

         Defendant Andre Jenkins ("Jenkins") is one of 12 remaining defendants[1] named in a 46-count Second Superseding Indictment ("Indictment") (Dkt. 33) returned on March 16, 2016, alleging various crimes, including a conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ I96I et seq. ("RICO"), in connection with the operation of the Kingsmen Motorcycle Club. Jenkins is charged in the following nine counts:

Count 1: RICO conspiracy in violation of 18 U.S.C. § 1962(d);
Count 2: Possession of firearms in furtherance of crime of violence (the RICO conspiracy charged in Count 1) in violation of 18 U.S.C. §§924(c)(1)(A)(i)and 2;
Count 19: Murder in aid of racketeering in violation of 18 U.S.C. §§ 1959(a)(1) and 2;
Count 20: Murder in aid of racketeering in violation of 18 U.S.C. §§ 1959(a)(1) and 2;
Count 21: Possession and discharge of firearm in furtherance of crime of violence (the murder in aid of racketeering charged in Count 19) in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j) and 2;
Count 22: Possession and discharge of firearm in furtherance of crime of violence (the murder in aid of racketeering charged in Count 20), in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j) and 2;
Count 23: Felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2);
Count 45: Using and maintaining a premises for drug dealing in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2; and
Count 46: Possession of firearms in furtherance of drug trafficking crime (the drug premises charge in Count 45) in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2.

         On January 17, 2017, this Court set a day-certain trial scheduled to commence on January 16, 2018. (Dkt. 445).

         Jenkins' omnibus pretrial motions, filed on March 7, 2017, included a motion to dismiss on the ground that this federal prosecution violates the Double Jeopardy Clause of the Fifth Amendment. (Dkt. 522 at ¶¶ 79-91). Jenkins' motion was based on his prosecution by the Niagara County District Attorney's Office and his conviction in New York State court for one count of Murder in the First Degree in violation of N.Y. Penal Law § 125.27(1)(a)(viii), two counts of Murder in the Second Degree in violation of N.Y. Penal Law § 125.25(1), and one count of Criminal Possession of a Weapon in the Second Degree in violation of N.Y. Penal Law § 265.03(3). The state court charges arose out of the alleged murders of Paul Maue and Daniel "DJ" Szymanski on September 6, 2014. The alleged murders constitute some of the predicate acts alleged in this case as part of the RICO conspiracy count, and the charges in Counts 19 through 23 are based on the facts surrounding the alleged murders.

         In his motion to dismiss on double jeopardy grounds, Jenkins recognized that the "dual sovereignty doctrine may allow two separate sovereigns to prosecute a defendant who violates the laws of both sovereigns in a single act" (Dkt. 522 at ¶ 83), but he argued that the doctrine did not apply in this case because the state prosecution was a tool of the federal government (id. at ¶¶ 79-91). Jenkins argued in his initial motion papers that the Government should be required to produce discovery so that Jenkins could "more appropriately be able to prepare and argue the instant motion" (id. at ¶ 88), and he requested an evidentiary hearing (id. at ¶ 91).

         On April 7, 2017, the Government filed its opposition to Jenkins' omnibus motions. (Dkt. 554). In response to Jenkins' double jeopardy argument, the Government argued that under the "same elements" test enunciated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932), the offenses for which Jenkins was convicted in state court were different than the offenses with which he was charged in this Indictment. (Dkt. 554 at 31-40). The Government also argued that Jenkins' argument that the dual sovereignty doctrine did not apply was without basis, and neither discovery nor an evidentiary hearing was warranted. (Id. at 40-46).

         On May 5, 2017, Jenkins filed reply papers in further support of his omnibus pretrial motions, and, among other things, he argued that "the acts for which Mr. Jenkins was previously convicted are the same acts which the government intends to prove at the time of trial." (Dkt. 575 at 11). Jenkins maintained his argument that he was entitled to discovery and a hearing on the dual sovereignty issue, but he failed to respond to the Government's argument about the same elements test under Blockburger. (Id. at 10-12).

         Oral argument was held before the undersigned on May 9, 2017. (Dkt. 755). Because Jenkins never responded to the Government's argument that the state and federal offenses involved different elements under the Blockburger test, and because the Court did not believe Jenkins had met his burden on the dual sovereignty issue, the Court allowed Jenkins to file supplemental briefing "addressing whether the offenses of Defendant's state court convictions are the same in fact and in law as those charged in the federal indictment, such that double jeopardy is violated." (Dkt. 585; see Dkt. 755 at 130-33). The Court ...


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