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United States v. Mack

United States District Court, S.D. New York

January 10, 2020

UNITED STATES OF AMERICA
v.
ALJERMIAH MACK, a/k/a “Nuke, ” and ANTHONY ELLISON, a/k/a “Harv, ” Defendants.

          OPINION & ORDER

          PAUL A. ENGELMAYER, District Judge.

         This decision resolves post-trial motions filed by defendants Aljermiah Mack and Anthony Ellison.

         Beginning September 16, 2019, the Court presided over the defendants' jury trial, involving charges arising from their alleged participation, with others, in the Nine Trey Gangsta Bloods criminal enterprise (“Nine Trey”). On September 25, 2019, at the close of the Government's case, the Court denied motions from the defendants for judgments of acquittal, pursuant to Federal Rule of Criminal Procedure 29(a). On October 3, 2019, the jury returned its verdict. It convicted both defendants on Count One, charging participation in a racketeering conspiracy, in violation of 18 U.S.C. § 1962(d). It also convicted Mack of Count Six, charging him with narcotics conspiracy, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), specially finding with respect to that Count that Mack had conspired to distribute and possess with intent to distribute one kilogram and more of mixtures and substances containing a detectable amount of heroin. It also convicted Ellison of Count Two, charging him with kidnapping in aid of racketeering in connection with the July 22, 2018 kidnapping of Daniel Hernandez, in violation of 18 U.S.C. §§ 1959(a)(1) and 2, and Count Five, charging him with maiming and assault with a dangerous weapon in aid of racketeering in connection with the October 24, 2018 slashing of Mark Hobdy, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), (ii), and 2. The jury acquitted Mack of Count Seven, which charged him with using firearms in furtherance of Count Six, and Ellison of Count Three, which charged him with assault with a dangerous weapon in aid of racketeering in connection with the July 22, 2018 incident.[1]

         On December 2, 2019, Mack timely moved for a judgment of acquittal under Rule 29(c). This motion was limited to the jury's special finding with respect to Count Six as to drug weight. Dkt. 378 (“Mack Mem.”). The same day, Ellison timely moved, as to all three counts on which he was convicted, for a judgment of acquittal under Rule 29(c), or, in the alternative, for a new trial under Federal Rule of Criminal Procedure 33. Dkt. 376. On December 3, 2019, Ellison filed a brief in support of his motion. Dkt. 380 (“Ellison Mem.”). On December 23, 2019, the Government opposed the motions. Dkt. 401 (“Gov. Mem.”).

         For the reasons that follow, the Court denies both defendants' motions.

         I. Governing Legal Standards

         A. Rule 29 Motions

         To grant a motion for acquittal under Rule 29, a Court must find that the evidence was legally insufficient to establish the defendant's guilt beyond a reasonable doubt. See Fed. R. Crim. P. 29. “A defendant challenging the sufficiency of the evidence that was the basis of his conviction at trial bears a heavy burden.” U.S. v. Hawkins, 547 F.3d 66, 70 (2d Cir. 2008) (citation omitted); U.S. v. Desena, 287 F.3d 170, 177 (2d Cir. 2002). “The question is not whether this Court believes that the evidence at trial established guilt beyond a reasonable doubt, but rather, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” U.S. v. Mi Sun Cho, 713 F.3d 716, 720 (2d Cir. 2013) (per curiam) (emphasis in original) (internal citations omitted). In a close case, where “either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, the court must let the jury decide the matter.” U.S. v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) (citation omitted). It is not the trial court's role to “substitute its own determination of . . . the weight of the evidence and the reasonable inferences to be drawn for that of the jury.” U.S. v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999) (quoting Curley v. United States, 160 F.2d 229, 232 (D.C. Cir. 1947)). Accordingly, a “court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.” U.S. v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004) (citation omitted).

         In considering the sufficiency of the evidence supporting a guilty verdict, the Court must view the evidence in the light most favorable to the Government, with all reasonable inferences drawn in its favor. See Hawkins, 547 F.3d at 70; Mi Sun Cho, 713 F.3d at 720; U.S. v. Howard, 214 F.3d 361, 363 (2d Cir. 2000) (“[We] resolve all inferences from the evidence and issues of credibility in favor of the verdict.”). “[T]he task of choosing among competing, permissible inferences is for the [jury], not for the reviewing court.” U.S. v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001). Moreover, the Court must analyze the pieces of evidence “not in isolation but in conjunction, ” U.S. v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994), and must apply the sufficiency test “to the totality of the government's case and not to each element, as each fact may gain color from others, ” Guadagna, 183 F.3d at 130. See also U.S. v. Reyes, 302 F.3d 48, 53 (2d Cir. 2002) (“[W]e consider the evidence as a whole.”).

         The credibility of a testifying witness is particularly within the province of the jury, not a reviewing court. See U.S. v. O'Connor, 650 F.3d 839, 855 (2d Cir. 2011) (“It is the province of the jury and not of the court to determine whether a witness who may have been inaccurate, contradictory and even untruthful in some respects was nonetheless entirely credible in the essentials of his testimony.” (internal quotation marks omitted)). For these reasons, the Second Circuit has emphasized that “the proper place for a challenge to a witness's credibility is ‘in cross-examination and in subsequent argument to the jury, not in an appellate brief.'” U.S. v. Roman, 870 F.2d 65, 71 (2d Cir. 1989) (quoting U.S. v. Friedman, 854 F.2d 535, 558 (2d Cir. 1988)). It is for the jury to decide how those arguments bear on “the weight [it] should accord to the evidence.” U.S. v. Truman, 688 F.3d 129, 140 (2d Cir. 2012).

         The jury is, further, permitted to give substantial weight to a single witness's testimony. “A conviction may be sustained on the basis of the testimony of a single accomplice, so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt.” U.S. v. Diaz, 176 F.3d 52, 92 (2d Cir. 1999) (internal quotation marks omitted). “Any lack of corroboration of an accomplice's or co-conspirator's testimony goes merely to the weight of the evidence, not to its sufficiency, and a challenge to ‘[t]he weight is a matter for argument to the jury, not a ground for reversal on appeal.'” Id. (quoting Roman, 870 F.2d at 71).

         The deference accorded to the jury's verdict “is especially important when reviewing a conviction of conspiracy . . . because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon's scalpel.” U.S. v. Pitre, 960 F.2d 1112, 1121 (2d Cir. 1992) (internal quotation marks omitted). “A conspiracy need not be shown by proof of an explicit agreement but can be established by showing that the parties have a tacit understanding to carry out the prohibited conduct, ” U.S. v. Samaria, 239 F.3d 228, 234 (2d Cir. 2001), abrogated on other grounds by U.S. v. Huezo, 546 F.3d 174, 180 n.2 (2d Cir. 2008), and can be shown based on circumstantial evidence alone, U.S. v. Gordon, 987 F.2d 902, 906-07 (2d Cir. 1993). See also U.S. v. Glenn, 312 F.3d 58, 64 (2d Cir. 2002) (“[T]he prosecution may prove its case entirely by circumstantial evidence so long as guilt is established beyond a reasonable doubt.”); U.S. v. Miranda-Ortiz, 926 F.2d 172, 176 (2d Cir. 1991) (“Membership in the conspiracy may be proved entirely by circumstantial evidence.”). For example, a defendant's “knowing and willing participation in a conspiracy may be inferred from . . . [his] presence at critical stages of the conspiracy that could not be explained by happenstance, or a lack of surprise when discussing the conspiracy with others.” In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 93, 113 (2d Cir. 2008) (internal quotation marks and citation omitted).

         Finally, in a criminal case, a conviction on one count of an indictment may not be challenged merely because it is inconsistent, or in tension, with an acquittal on another count. See U.S. v. Powell, 469 U.S. 57, 67 (1984); Dunn v. United States, 284 U.S. 390, 393 (1932). As the Second Circuit has explained, “[a] court knows only what the jury's verdicts were, not what the jury found, and it is not within the province of the court to attempt to determine the reason or reasons for verdicts that are inconsistent.” U.S. v. Acosta, 17 F.3d 538, 546 (2d Cir. 1994); see also U.S. v. Chang An-Lo, 851 F.2d 547, 560 (2d Cir. 1988) (rejecting challenge based on inconsistent verdicts on racketeering and narcotics conspiracy counts). That is particularly so when courts have no way of knowing whether a verdict is the result of a “mistake, compromise, or lenity.” Powell, 469 U.S. at 65; see also Id. at 66 (“We also reject, as imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them.”).

         B. Rule 33 Motions

Rule 33 provides that a “court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). The Rule confers broad discretion upon a trial court to “set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.” See U.S. v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). In exercising its discretion, however, the court must be careful not to wholly usurp the role of the jury, and should defer to the jury's assessment of witnesses and resolution of conflicting evidence unless “exceptional circumstances can be demonstrated.” Id. at 1414. Ultimately, the court must decide “whether letting a guilty verdict stand would be a manifest injustice.” See U.S. v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001). The court should “examine the entire case, take into account all facts and circumstances, and make an objective evaluation.” Id. After doing so, “[t]here must be a real concern that an innocent person may have been convicted” in order to grant the motion. Sanchez, 969 F.2d at 1414. The court's Rule 33 authority should be used “sparingly” and only “in the most extraordinary circumstances.” Ferguson, 246 F.3d at 134.

         II. Discussion

         The Court assumes familiarity with the evidence adduced at trial. The discussion that follows presents only the evidence ...


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