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United States v. Pirk

United States District Court, W.D. New York

February 21, 2018

DAVID PIRK, ANDRE JENKINS a/k/a Little Bear, TIMOTHY ENIX a/k/a Blaze, Defendants.


          Elizabeth A. Wolford, Judge


         Defendants David Pirk ("Pirk"), Andre Jenkins ("Jenkins"), and Timothy Enix ("Enix") (collectively, "Defendants") are charged by way of a 46-count Second Superseding Indictment (Dkt. 33) ("Indictment") returned on March 16, 2016, with various crimes, including a conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. ("RICO"), in connection with the operation of the Kingsmen Motorcycle Club ("KMC"). Jury selection commenced on January 16, 2018.

         Among the issues raised by pretrial motions in limine was defendant Jenkins' argument, pursuant to Fed. R. Crim. P. 7(d), that the Court should strike "unnecessary, inflammatory and prejudicial surplusage" from the Indictment. (Dkt. 882 at 8-9). Specifically, Jenkins moved to strike paragraphs 2 through 24 of Count 1, as well as the Notice of Special Sentencing Factors With Respect to Count 1 and the Notice of Special Findings pertaining to Counts 19 through 22. (Id.). Pirk and Enix joined in Jenkins' motion. (Dkt. 881 at 3, 7 (Enix); Dkt. 884 at 3 (Pirk)). The Government opposed the motion insofar as it was directed to the allegations set forth in Count l.[1] (Dkt. 920 at 57-60).

         At a pretrial conference on December 27, 2017, counsel for Jenkins confirmed that the motion was really intended to address what should be published to the jury, as opposed to striking allegations from the Indictment. The Court asked counsel to make further submissions on the issue of what portion of the Indictment should be published to the jury and how the Court should inform prospective jurors as to the nature of the charges during voir dire.

         On January 8, 2018, counsel for Enix and Jenkins submitted letters[2] to the Court outlining their positions with respect to alleged surplusage in the Indictment and the publication of the Indictment to the jury. By letter dated January 8, 2018, the Government argued that the jury must find the special sentencing factors beyond a reasonable doubt for enhanced penalties to apply to Count 1 regarding Pirk and Jenkins, but agreed that it could remove any reference to "Sentencing" and simply have the redacted Indictment state "Notice of Special Factors." (Dkt. 1084). The Government further argued that the Court should deny any motion to strike surplusage. (Id.).

         On January 13, 2018, the Government filed a Proposed Statement of the Case, wherein it argued that the reading of the redacted Indictment would suffice as a statement of the case, or alternatively that the Court should read either the entirety of Count 1, including the overt acts and a summary of the remaining counts, or Count 1 up to and including paragraph 3O(n) of the Introduction and a summary of the redacted Indictment's remaining counts. (Dkt. 984). In that same filing, the Government objected to the proposed Joint Statement of the Case that had previously been submitted by defendant Thomas Scanlon. (See Dkt. 904-2).

         On January 15, 2018, Defendants submitted an Amended Proposed Statement of the Case. (Dkt. 987). On February 5, 2018, Defendants then filed a further submission concerning their theory of the case, which they asked the Court to read during voir dire to the prospective jurors after summarizing the charges in the Indictment. (Dkt. 1042). The Government filed a response arguing that Defendants' request should be denied. (Dkt. 1045).

         Ultimately, on February 7, 2018, during the final phase of jury selection in this case, the Court read Count 1 of the redacted Indictment through paragraph 3O(n) and summarized the remaining counts in the Indictment. Consistent with the request from counsel for Enix, references to the co-defendants who had pleaded guilty were included within the redacted Indictment. The Court instructed the jury, in sum and substance, that the Indictment was not evidence and did not constitute proof of anything; rather, it was being published to advise prospective jurors of the nature of the charges and ascertain whether they could be fair and impartial. The Court declined Defendants' request to read their proposed statement of the case and/or theory of defense. The Court took a similar approach with respect to its preliminary instructions. The purpose of this Decision and Order is to memorialize the Court's reasoning for its approach.


         I. Motion to Strike Surplusage pursuant to Fed. R. Crim. P. 7(d)

         Federal Rule of Criminal Procedure 7(d) provides as follows: "Upon the defendant's motion, the court may strike surplusage from the indictment or information." Fed. R. Crim. P. 7(d). However, a defendant moving to strike surplusage must meet an "exacting standard, " and the motion should be granted only where the allegations are inflammatory and prejudicial and not relevant to the crime charged. United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990). "[I]f evidence of the allegation is admissible and relevant to the charge, then regardless of how prejudicial the language is, it may not be stricken." Id. (alteration in original) (internal quotation marks omitted).

         Here, it is not entirely clear that Defendants still seek to strike allegations pursuant to Rule 7(d). Counsel for Jenkins, at the pretrial conference on December 27, 2017, confirmed that his motion really concerned the publication of the Indictment to the jury, as opposed to striking allegations. Moreover, although counsel for Enix raised the issue of Rule 7(d) in his letter submitted to the Court on January 8, 2018, he never filed a formal motion before the undersigned seeking this relief.[3]

         In any event, it is apparent that the Court should deny any request to strike surplusage. The allegations contained in paragraphs 2 through 24 describe the history of the KMC, including its locations, chain of command, general rules and objectives, and the various ways it allegedly carried out criminal activity. The allegations in these paragraphs describe the following: firearms and ammunition were maintained at KMC chapter clubhouses to defend the KMC against rival motorcycle gangs and to protect club proceeds; the KMC chapter clubhouses maintained a supply of untaxed cigarettes that were routinely sold for profit inside the clubhouses; illicit drug use and distribution were permitted inside the clubhouses; the KMC chapter clubhouses sold beer and liquor to generate income; gambling was maintained in some clubhouses; and KMC members' girlfriends and wives (referred to as "Old Ladies") assisted with the criminal ...

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