Opinion
1:19-CR-00155 EAW
2023-03-22
UNITED STATES of America, v. Deandre WILSON, Defendant.
Michael Jason Adler, Brendan T. Cullinane, Government Attorneys, Joseph M. Tripi, Maeve Eileen Huggins, United States Attorney's Office, Buffalo, NY, for United States of America. Daniel J. Henry, Jr., Villarini & Henry, L.L.P., Hamburg, NY, Kevin W. Spitler, Buffalo, NY, for Defendant.
Michael Jason Adler, Brendan T. Cullinane, Government Attorneys, Joseph M. Tripi, Maeve Eileen Huggins, United States Attorney's Office, Buffalo, NY, for United States of America. Daniel J. Henry, Jr., Villarini & Henry, L.L.P., Hamburg, NY, Kevin W. Spitler, Buffalo, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
On November 3, 2022, following a trial lasting six weeks with over 50 witnesses testifying, a jury found defendant Deandre Wilson ("Defendant") guilty of 15 counts relating to crimes involving the murders of three individuals on September 15, 2019, and drug trafficking, as follows: (1) narcotics conspiracy involving five kilograms or more of cocaine, one kilogram or more of heroin, and 100 kilograms or more of marijuana in violation of 21 U.S.C. § 846 (count 1); (2) Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2 (count 3); (3) murder while engaged in a narcotics conspiracy, in violation of 21 U.S.C. §§ 848(e)(1)(A) and 18 U.S.C. § 2 (count 4); (4) discharge of a firearm in furtherance of a crime of violence and drug trafficking crimes, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2 (count 5); (5) two counts of discharge of a firearm causing death in furtherance of a crime of violence and drug trafficking crimes, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j)(1), and 2 (counts 6 and 7); (6) conspiracy to obstruct justice, in violation of 18 U.S.C. § 1512(k) (count 8); (7) two counts of obstruction of justice, in violation of 18 U.S.C. §§ 1512(c)(1) and 2 (counts 9 and 10); (8) conspiracy to use fire to commit a felony, in violation of 18 U.S.C. § 844(m) (count 11); (9) two counts of use of fire to commit a felony, in violation of 18 U.S.C. §§ 844(h) and 2 (counts 12 and 13); (10) conspiracy to damage and destroy a vehicle used in interstate commerce by fire, in violation of 18 U.S.C. § 844(n) (count 14); (11) damaging and destroying a vehicle used in interstate commerce by fire, in violation of 18 U.S.C. §§ 844(i) and 2 (count 15); and (12) possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D), and 18 U.S.C. § 2 (count 17). (See Dkt. 558).
The indictment also charged the narcotics conspiracy as involving butyryl fentanyl, although the jury did not answer specific questions as to that drug type or make any quantity findings because the charge did not implicate the increased statutory penalties under 21 U.S.C. § 841(b)(1)(A) or (B).
The count numbers are denominated as set forth in the redacted indictment. (Dkt. 557).
Defendant was charged with 17 counts, but the jury found him not guilty on two counts: Hobbs Act conspiracy, in violation of 18 U.S.C. § 1951(a) (count 2), and maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 (count 16). (Dkt. 558).
Presently pending is a motion timely filed by Defendant on December 22, 2022, to vacate his convictions and for a new trial, pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. (Dkt. 582). The government filed its response to Defendant's motion on February 14, 2023. (Dkt. 600). For the following reasons, Defendant's motion is denied.
Defendant moved at the close of the government's proof and after his own defense case to dismiss the charges under Rule 29, and the Court reserved decision. (See Dkt. 543; Dkt. 544).
On March 14, 2023, the government communicated to the Court and defense counsel that it would move for dismissal of count 5 of the redacted indictment (discharge of a firearm in furtherance of a crime of violence and drug trafficking crimes, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2) in light of Defendant's convictions pursuant to 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j)(1), and 2, in counts 6 and 7. On March 20, 2023, the government filed a proposed Order of Dismissal as to count 5 (Dkt. 627), and after confirming Defendant had no objection, the Court issued the Order of Dismissal (Dkt. 633; Dkt. 634).
BACKGROUND
The parties' familiarity with the case is assumed, but some of the relevant evidence received at trial is summarized below as background information for purposes of resolving Defendant's motion.
As previously explained, the charges against Defendant involve drug trafficking and the murders of three individuals—Miguel Anthony Valentin-Colon ("Miguel"), Nicole Marie Merced-Plaud ("Nicole"), and Dhamyl Roman-Audiffred ("Dhamyl"). Miguel, Nicole, and Dhamyl were drug dealers, and in September 2019 they traveled from Florida to Buffalo, New York, in a white Chrysler Pacifica minivan. At approximately 6:00 p.m. on September 15, 2019, Miguel drove the minivan with Nicole, Dhamyl, and N.V.C. (Miguel and Nicole's three year-old son) as passengers, to a house at 4 Roebling Avenue on the East Side of the City of Buffalo ("4 Roebling"). Dhamyl went inside 4 Roebling to sell a kilogram of cocaine to co-defendant Jariel Cobb ("Cobb"). Miguel, Nicole, and N.V.C. remained in the minivan parked in the driveway. Defendant was also present inside 4 Roebling, intending to participate in the drug deal. Cobb's brother and co-defendant James Reed ("Reed") was also there to "count money."
Evidence presented during the trial revealed that Defendant killed Dhamyl, and then immediately exited 4 Roebling and shot and killed Miguel and Nicole as they sat in the minivan with N.V.C. (See Dkt. 590 at 203-09 (Cobb's testimony); see also Dkt. 536 at 162-65 (Reed's testimony)). Defendant then drove the minivan to an isolated location at or near 338 Scajaquada Street, where he left N.V.C. in the minivan with his parents' dead bodies. During that time, Cobb and Reed disposed of Dhamyl's body by dismembering and burning her remains in a bonfire behind 225 Box Avenue ("225 Box"). Approximately eight hours later, at about 2:35 a.m. on September 16, 2019, Defendant returned with Cobb to retrieve the minivan, and with N.V.C. and his parents' dead bodies still in the minivan, Defendant drove across the City of Buffalo to the rear of 111 Tonawanda Street, with Cobb driving to the same location in his red Kia sedan. At approximately 3:00 a.m., Cobb and Defendant doused the minivan with gasoline and lit it on fire. N.V.C. was removed from the minivan before it was torched, but Miguel and Nicole's dead bodies remained inside. Defendant and Cobb then abandoned N.V.C. on a front porch at 63 Potomac Avenue in the City of Buffalo.
When referencing the page number(s) of docket citations in this Decision and Order, including the transcripts of witness testimony, the Court will cite to the CM/ECF-generated page numbers that appear in the upper right-hand corner of each document. Further, since not all of the trial transcripts have been prepared, some of the references to evidence herein is based on the undersigned's recollection of the trial testimony.
Several individuals were charged in the case, including Defendant, Cobb, and Reed who were charged for their involvement in the events that transpired on September 15 and 16, 2019. Both Reed and Cobb entered guilty pleas and agreed to cooperate with the government, including by testifying at Defendant's trial regarding the events of September 15 and 16, 2019.
DISCUSSION
A. Rule 29 Motion
Defendant raises three arguments in support of his Rule 29 motion: (1) there was insufficient evidence to support the convictions; (2) the Court erred when it allowed into evidence video interview statements of N.V.C.; and (3) the Court erred when it denied the admissibility of defense witness Richard Brady's federal grand jury testimony. (Dkt. 582 at 4-28). As explained below, none of these arguments justify granting the relief Defendant seeks under Rule 29.
1. Legal Standard
Rule 29(c)(1) of the Federal Rules of Criminal Procedure provides that "[a] defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict . . . ." The standard on a motion for a judgment of acquittal is stringent, and a defendant claiming that he was convicted based on insufficient evidence "bears a very heavy burden." United States v. Blackwood, 366 F. App'x 207, 209 (2d Cir. 2010) (quoting United States v. Desena, 287 F.3d 170, 177 (2d Cir. 2002)). "In considering a motion for judgment of acquittal, the court must view the evidence presented in the light most favorable to the government." United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999). Accordingly, "[a]ll permissible inferences must be drawn in the government's favor." Id.
"If any rational trier of fact could have found the essential elements of the crime, the conviction must stand." United States v. Puzzo, 928 F.2d 1356, 1361 (2d Cir. 1991) (quotation omitted). "The test is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt." Id. (quotation omitted). The evidence must be viewed "in its totality, not in isolation," United States v. Huezo, 546 F.3d 174, 178 (2d Cir. 2008) (citation omitted), "as each fact may gain color from others," Guadagna, 183 F.3d at 130. The Court may enter a judgment of acquittal only if the evidence that the defendant committed the crime is "nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." Id. (citation omitted).
A district court must be careful not to usurp the role of the jury. "Rule 29(c) does not provide the trial court with an opportunity to 'substitute its own determination of . . . the weight of the evidence and the reasonable inferences to be drawn for that of the jury.' " Id. at 129 (alteration in original and quoting United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984)). "A jury's verdict will be sustained if there is substantial evidence, taking the view most favorable to the government, to support it." United States v. Nersesian, 824 F.2d 1294, 1324 (2d Cir. 1987). The government is not required "to preclude every reasonable hypothesis which is consistent with innocence." United States v. Chang An-Lo, 851 F.2d 547, 554 (2d Cir. 1988) (citing United States v. Fiore, 821 F.2d 127, 128 (2d Cir. 1987)).
2. Video Interview Statements of N.V.C. and Richard Brady Grand Jury Testimony
The Court turns first to Defendant's arguments pertaining to the video interview statements of N.V.C. and Richard Brady's grand jury testimony. With respect to these issues, the Court ruled from the bench on the admissibility of N.V.C.'s video statement in advance of trial, and the inadmissibility of Brady's grand jury testimony during the trial. The Court followed up on its oral rulings with written decisions memorializing and further explaining its reasoning. (See Dkt. 569 (Decision and Order memorializing the Court's ruling on Defendant's request to admit grand jury testimony of Richard Brady, dated November 21, 2022) & Dkt. 570 (Decision and Order memorializing the Court's ruling on the government's motion to admit at trial N.V.C.'s September 16, 2019 recorded interview statement at the Child Advocacy Center, dated November 22, 2022)).
Defendant's arguments raised in connection with his Rule 29 motion as to these issues are already addressed by the aforementioned Decision and Orders. Defendant contends in connection with his Rule 29 motion that the video statement of N.V.C. is testimonial and its admission violated the Confrontation Clause (Dkt. 582 at 15-19), which is addressed in the November 22, 2022 Decision and Order (see Dkt. 570 at 6-13). Similarly, with respect to the preclusion of Richard Brady's grand jury testimony, Defendant contends that the Court erred in precluding the admission of the grand jury testimony pursuant to Rules 613(b) and 804(b)(1) & (3) of the Federal Rules of Evidence (see Dkt. 582 at 19-28); however, the November 21, 2022 Decision and Order previously addressed each of these issues (see Dkt. 569 at 7-20). The Court will not repeat those prior rulings here. Rather, for all the reasons articulated in its prior decisions on these issues (Dkt. 569 & Dkt. 570), the Court finds that Defendant is not entitled to a judgment of acquittal based on the admission of N.V.C.'s videotaped statement or the preclusion of Richard Brady's grand jury testimony.
3. Sufficiency of the Evidence
Defendant argues that the Court must vacate the verdict and enter a judgment of acquittal because no rational trier of fact could have found the essential elements of the crimes for which he was convicted. (Dkt. 582 at 4-14). Defendant challenges his convictions on each of the counts on which he was convicted. As discussed below, Defendant falls far short of meeting his burden under Rule 29. The evidence at trial was more than sufficient to support each count of conviction.
a. Narcotics Conspiracy (count 1)
The Court turns first to the evidence supporting Defendant's conviction for engaging in a narcotics conspiracy. Defendant argues that the evidence at trial demonstrated that he was in prison for the majority of the drug trafficking conspiracy, which the indictment charged spanned from 2014 through 2019, and that he was not involved in the distribution of cocaine, heroin, or marijuana during that time period. (Dkt. 582 at 5-6). He further argues that the amount of cocaine attributable to him was, at most, three kilograms; that there was no evidence presented at trial supporting that he engaged in the possession or sale of heroin; and with respect to the marijuana, the evidence at trial showed at most a buyer/seller arrangement between him and Cobb. (Id. at 6-8).
As a practical matter, the jury's findings on the heroin and marijuana have no impact on the sentence that Defendant faces. In other words, because he was convicted of a narcotics conspiracy involving five kilograms or more of cocaine, he faces the applicable mandatory minimum imprisonment term and higher statutory maximum set forth under 21 U.S.C. § 841(b)(1)(A)(ii), regardless of the jury's findings with respect to heroin and marijuana. Moreover, the offense level under the Sentencing Guidelines is not driven by the drug amounts in this case so even if the Court were to make findings as to drug amount and type, it would have no bearing on the sentence that Defendant faces. (See Dkt. 623 at ¶¶ 52-79).
To prove the narcotics conspiracy charge, the government was required to establish "(1) the existence of the conspiracy, (2) defendant's knowing and intentional joinder in the conspiracy, and (3) that it was 'either known or reasonably foreseeable to the defendant that the conspiracy involved the drug type and quantity charged.' " United States v. Young, 561 F. App'x 85, 91 (2d Cir. 2014) (citation omitted). "The government need not prove the defendant's familiarity with all of the conspiracy's details; it may demonstrate simply the defendant's awareness of the 'general nature and extent' of the conspiracy." United States v. Anderson, 747 F.3d 51, 61 (2d Cir. 2014). Further, "[a] defendant need not have joined a conspiracy at its inception in order to incur liability for the unlawful acts of the conspiracy committed both before and after he or she became a member." United States v. Santos, 541 F.3d 63, 73 (2d Cir. 2008) (quoting United States v. Rea, 958 F.2d 1206, 1214 (2d Cir. 1992)).
The third element is applicable where, as here, the conspiracy is punishable under the increased penalty provisions of 21 U.S.C. § 841(b)(1). United States v. Santos, 541 F.3d 63, 70-71 (2d Cir. 2008).
"The evidence necessary to link a defendant to the conspiracy 'need not be overwhelming and may be circumstantial in nature.' " United States v. Kemp, No. 21-1684-CR, 2023 WL 405763, at *2 (2d Cir. Jan. 26, 2023) (quoting United States v. Gaskin, 364 F.3d 438, 460 (2d Cir. 2004)). "When a defendant challenges the sufficiency of the evidence in a conspiracy case, 'deference to the jury's findings is especially important . . . 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.' " Santos, 541 F.3d at 70 (alteration in original and quoting United States v. Morgan, 385 F.3d 196, 204 (2d Cir. 2004)).
It is true that the proof at trial established that Defendant was incarcerated until October 2018, and therefore he did not join the narcotics conspiracy until closer to the end of the five-year time-frame charged in the indictment. But it is also true that Defendant became involved with Cobb's narcotics conspiracy not long after his release from prison due to financial motives. Defendant's initial efforts in connection with the narcotics conspiracy involved his personal distribution of marijuana. (See Dkt. 590 at 103-114 (Cobb testifying as to his interactions with Defendant after his release from prison and his supplying Defendant with marijuana for distribution)). Cobb told Defendant that he could "sell it to somebody for three grand or basically make them buy it, like giving it away for 2,500 or he can sell it in the $20 bags and make anywhere from 5,000 or more off of it." (Id. at 109). The marijuana seized from 164 Parkridge—where Defendant was staying—was packaged for sale, and packaged identically to the marijuana sold at 225 Box, from where Cobb and Reed distributed drugs. Further, a written note recovered from Defendant's black BMW, which said "2200 per pound," was the approximate price for a pound of marijuana. (See Gov. Exh. 103-99).
To the extent Defendant argues that this evidence establishes only a "buyer-seller relationship," the Court instructed the jury on a buyer-seller relationship as part of the final charge and the jury plainly rejected this theory of the case. It was rational for the jury to do so. Construing the evidence in the light most favorable to the government, the evidence introduced at trial showed that Defendant was involved in an ongoing narcotics conspiracy with Cobb and others that included the objective of marijuana distribution, and that this was not simply a buy-sell arrangement between non-conspirators. In fact, proof was introduced at trial that Defendant did not personally use marijuana, thus negating any suggestion that Defendant was simply purchasing marijuana from Cobb for his own personal use. Cf. United States v. Parker, 554 F.3d 230, 235 (2d Cir. 2009) ("While providing that the unlawful transfer from seller to buyer cannot serve as the basis for a charge that the seller and buyer conspired with one another to make the illegal transfer from seller to buyer, the rule does not protect either the seller or buyer from a charge they conspired together to transfer drugs if the evidence supports a finding that they shared a conspiratorial purpose to advance other transfers, whether by the seller or by the buyer.").
The proof at trial also supported Defendant's joining the conspiracy to acquire and sell kilogram quantities of cocaine from Cobb's source of supply. Cobb testified that Defendant proposed bringing in his cousin as a "new customer." (See Dkt. 590 at 169; see also id. at 119 (Cobb testifying that Defendant "wanted to basically be the middleman and have me hit him with the drugs and he be at his cousin and make money off it like that")). Both Cobb and Reed testified that Defendant was present at the September 15, 2019 exchange of a kilogram of cocaine at 4 Roebling, and Cobb testified that Defendant was supposed to provide Cobb with the funds to purchase the cocaine. Cobb further testified that following the events at 4 Roebling, Defendant asked Cobb for assistance selling the kilogram of cocaine, to which Cobb declined and instructed Defendant on how to sell it himself. (See Dkt. 592 at 101 ("A couple days after that, he came on Box and asked me could I sell it for him and I told him, no, and I told him he could sell it. And he asked me how much did it weigh and how should he sell it. And I told him, well, you can sell it whole and/or you can break it down into 36 ounces.")). Moreover, the proof at trial supported a finding of Defendant's knowing involvement in the narcotics conspiracy with the objective of cocaine distribution prior to the events on September 15. (See Dkt. 590 at 164-64 (Cobb testifying about Defendant's steps to become involved in the cocaine distribution conspiracy prior to September 15 and two prior occasions where Defendant was supposed to be personally involved in the transactions but missed the deals because of work); see also Gov. Exh. 62D (surveillance video showing Defendant's vehicle drive by 225 Box on July 28, 2019, the same date that the victims arrived to make a bulk cocaine sale to Cobb at that location)). In other words, Defendant may not have personally trafficked the cocaine prior to September 15, but his personal involvement in cocaine distribution was not required for a finding that he was a knowing participant in the conspiracy. See United States v. Shabani, 513 U.S. 10, 11, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) (proof that a conspirator committed an overt act in furtherance of a conspiracy is not required to find violation of 21 U.S.C. § 846).
As to the heroin, the trial testimony established that Reed and Cobb used 225 Box—a location Defendant had visited with Cobb—to process and sell drugs, including heroin. (See Dkt. 536 at 56, 62-64 (Reed's testimony that they would "stretch" heroin on a table in the front room at 225 Box, they also used the bathroom and a bedroom off of the living room, and a tent between 211 Box and 225 Box, and left blenders, scales, and baggies at that location); Dkt. 590 at 58, 67 (Cobb identifying 225 Box as a location where he would "divide" drugs, including that he processed heroin at 225 Box)). Two witnesses, Jason Shaul and James Maikranz, testified that they purchased heroin from Cobb at 225 Box. The jury could have reasonably inferred from the evidence presented at trial that Defendant, at the very least, was aware of the conspiracy's objective to sell heroin and knowingly joined in that objective when he became a co-conspirator.
In terms of the drug quantity findings by the jury, the Court will first focus on the cocaine because—as referenced above (see note 7, supra)—as a practical matter the marijuana and heroin findings do not impact Defendant's sentence here. When a defendant "has not directly and personally participated in the underlying drug transactions, then the government must prove that the drug type and quantity were 'at least reasonably foreseeable to the . . . defendant." United States v. Felder, 214 F. Supp. 3d 220, 228 (S.D.N.Y. 2016), aff'd, 760 F. App'x 74 (2d Cir. 2019); see also United States v. Andino, 627 F.3d 41, 47 (2d Cir. 2010) ("Under 21 U.S.C. § 846, the government need not prove foreseeability of drug type and quantity to the extent that it seeks to hold a defendant accountable for drug transactions in which the defendant directly and personally took part."). For the cocaine, Defendant personally participated in at least the drug transaction on September 15, 2019, and he attempted to participate on two prior occasions in similar drug transactions involving these victims' deliveries of cocaine. The proof at trial showed that each of Cobb's dealings with the victims typically involved three kilograms of cocaine and sometimes as much as six kilograms, and between March 2019 and September 1, 2019, Cobb made nine or 10 cocaine deals with the victims. (Dkt. 590 at 129-137). Consistent with this practice, the victims had two additional kilograms of cocaine back in their hotel room on September 15, 2019, so there is a fair inference that this was intended to be part of the drug transaction with Cobb and his co-conspirators. Likewise, there is a fair inference that a total of at least six kilograms of cocaine was involved in the two prior occasions where Defendant attempted to personally participate in the transactions. Thus, viewing the evidence in the light most favorable to the government and drawing all permissible inferences in its favor, the transaction on September 15 alone—in which Defendant personally participated—involved three kilograms of cocaine, and the two prior occasions that Defendant tried to participate involved at least an additional six kilograms of cocaine. As a result, it was rational for the jury to conclude that at least five kilograms or more of cocaine was reasonably foreseeable to Defendant as part of the narcotics conspiracy that he joined, if not directly involved in the drug transactions in which he personally participated or attempted to participate.
In addition, there is no question that the proof at trial established that Cobb's drug trafficking organization dealt with significant levels of cocaine—put simply, Cobb was a kilogram cocaine dealer (among other things). When Defendant joined the conspiracy, he became "responsible for all that was done before he joined to the extent that those acts [were] reasonably foreseeable and within the scope of the defendant's agreement." United States v. Gonzalez, 566 Fed. App'x 44, 48-49 (2d Cir. 2014); see also United States v. Foxx, 544 F.3d 943, 953 (8th Cir. 2008) ("When a defendant joins a conspiracy in its later stages, the 'concept of foreseeability (a forward looking concept) must be turned around 180 degrees and be applied to the conduct of co-conspirators occurring before the entry of [that] particular defendant.' ") (citing United States v. Martinez, 987 F.2d 920, 924, 926 (2d Cir. 1993)); United States v. Larrahondo, 885 F. Supp. 2d 209, 214-15 (D.D.C. 2012) ("Under Pinkerton, the jury may hold the defendant criminally liable for conspiracy to commit acts—including drug trafficking—that predate his joinder in the conspiracy. In other words, so long as the jury makes the determination applying the right legal standard, the defendant may properly be found guilty of conspiracy to traffic a quantity of drugs that includes drugs trafficked before his entrance into the conspiracy. The Apprendi line of cases does nothing to change this principle, which has been the law for more than fifty years."). Again, viewing the evidence in the light most favorable to the government and drawing all permissible inferences in its favor, a reasonable jury could conclude that the cocaine trafficked prior to his joinder in the conspiracy was reasonably foreseeable to Defendant and within the scope of his agreement. Thus, under those circumstances, the five kilogram threshold of cocaine is exceeded by many kilograms.
Similarly, with respect to the quantities of marijuana and heroin, there is no question that the drug trafficking organization run by Cobb was involved in the drug types and amounts found by the jury. And with the marijuana, Defendant was personally involved in the distribution of that drug. Thus, again viewing the evidence in the light most favorable to the government and drawing all permissible inferences in its favor, a reasonable jury could conclude that Defendant was involved in a narcotics conspiracy involving one kilogram or more of heroin and 100 kilograms or more of marijuana.
b. Hobbs Act Robbery (count 3)
Count 3 charges Defendant with Hobbs Act robbery in violation of 18 U.S.C. §§ 1951(a) and 2 through the "robbery of personal property, including cocaine, cellular telephones, and a white Chrysler Pacifica minivan . . . from, and in the presence of, [Miguel, Nicole, and Dhamyl] . . . ." (Dkt. 557 at 3). Defendant contends that the evidence was insufficient to support a conclusion that Defendant shot Miguel and Nicole with the intent to steal the minivan and cell phones, and with respect to the cocaine "there is no evidence [Defendant] killed Dhamyl to steal the cocaine" and "there is no testimony or evidence that Dhamyl was in fear, experienced fear, anxiety, concern or worry over expected personal harm." (Dkt. 582 at 9). Defendant's arguments lack merit and disregard the evidence presented in this case.
The jury was instructed that Hobbs Act robbery required proof of three elements: (1) the defendant knowingly obtained or took the personal property of another, or from the presence of another; (2) the defendant took this property against the victim's will, by actual or threatened force, violence, or fear of injury, whether immediately or in the future; and (3) that as a result of the defendant's actions, interstate commerce, or an item moving in interstate commerce, was delayed, obstructed, or affected in any way or degree. See Broadnax v. United States, No. 15 CRIM. 878 (VM), 2022 WL 4133247, at *5 (S.D.N.Y. Sept. 12, 2022) (stating elements of Hobbs Act robbery); United States v. Walker, 314 F. Supp. 3d 400, 413 (E.D.N.Y. 2018) (same), aff'd in relevant part, 974 F.3d 193 (2d Cir. 2020). Based upon the evidence presented at trial, including the testimony of both Cobb and Reed and the corroborating support for that testimony (including the surveillance evidence of Wilson driving the minivan with Miguel and Nicole's dead bodies after their murders and the expert testimony offered by FBI Special Agent John Orlando detailing the locations of Defendant and the victims' cell phones after the murders), a reasonable jury easily could have concluded that Defendant committed the crime of Hobbs Act robbery.
Specifically, the evidence established that, as Defendant told his girlfriend and co-defendant Deshema Clark ("Clark") in the days leading up to the murders, he needed to get his "money straight." (Gov. Exh. 160G). In addition to participating with Cobb in the narcotics conspiracy, the evidence established that Defendant's plan to meet his financial goals also included robbing drug dealers. That plan was launched into action with the cocaine transaction on September 15, when Defendant provided Cobb with a bag that was supposed to contain $30,000 but instead appeared to contain mostly fake money. (See Dkt. 590 at 203, 209-10 (Cobb testifying that, as Dhamyl began counting the money, she said "what the . . . ," and Cobb observed that one of the stacks "looked like it was cut up newspaper or coupons or like old food stamps" and looked to be fake)). Ready to execute on his robbery scheme, Defendant emerged from the bathroom wearing a mask with a gun in his hand. (See Dkt. 536 at 162-63 (Reed testifying that he observed Defendant "rushing out of the bathroom" wearing a mask and carrying a gun and went into the kitchen, after which Reed heard a "noise, like a thud hit the floor")). The evidence established that Defendant killed Dhamyl in order to steal the kilogram of cocaine. (See Dkt. 590 at 101 (Cobb testifying that Defendant approached him a couple days after the murders with the kilogram of cocaine to see if Cobb would sell it for him, but Cobb declined and instead gave Defendant instructions on how to sell it himself)). While the Hobbs Act statute is not intended to "create a freestanding physical violence offense" but rather is focused on "acts or threats of physical violence in furtherance of a plan or purpose to engage in what the statute refers to as robbery or extortion (and related attempts or conspiracies)," Scheidler v. Nat'l Org. for Women, Inc., 547 U.S. 9, 23, 126 S.Ct. 1264, 164 L.Ed.2d 10 (2006), this was not some after-the-fact unrelated theft of property by Defendant after engaging in acts of violence. The evidence presented at trial proved that Defendant planned this cocaine robbery in advance of its execution—from the fake money in the bag, to his carrying a gun and wearing a mask in an effort to disguise his appearance and perpetrate the robbery, to the evidence that this was part of Defendant's overall agenda to get his "money straight" by robbing drug dealers.
In addition, while the evidence concerning Dhamyl and the cocaine is sufficient, in and of itself, to support the Hobbs Act robbery conviction, the theft of the cell phones from Miguel and Nicole fit with Defendant's overall scheme to rob drug dealers, because as he explained to Cobb following the murders, Defendant kept the victims' cell phones, because "[i]f somebody called, he was going to try and tell them to come and buy something so he can rob them." (Dkt. 592 at 46). Thus, a reasonable jury could conclude that Defendant not only intended to rob the drug dealer victims of their drugs, but also their phones. And even if not, Defendant plainly intended to rob the victims and there is nothing under the law requiring specific intent with respect to each individual item of property that is ultimately stolen. Cases from both the Supreme Court and the Second Circuit have upheld Hobbs Act robbery convictions where a defendant intends to steal particular items in a robbery, but ultimately is successful in stealing other items. See Taylor v. United States, 579 U.S. 301, 304, 136 S.Ct. 2074, 195 L.Ed.2d 456 (2016) (upholding two Hobbs Act robbery convictions where the defendant participated in two home invasions intending to steal large quantities of drugs and money from a drug dealer, but succeeded in obtaining "only jewelry, $40, two cell phones, and a marijuana cigarette" on the first occasion and "only a cell phone" on the second occasion); United States v. Amato, 31 F. App'x 21, 27 (2d Cir. 2002) (upholding Hobbs Act robbery conviction where the defendants believed that the targets of the robbery were diamond merchants who kept large sums of money and potentially diamonds in their home, but instead the victims kept proceeds and records of their tool business in their home); see also United States v. Rutherford, 236 F. App'x 835, 842 (3d Cir. 2007) (upholding Hobbs Act robbery conviction where the defendant tried to steal drugs from a doctor's office, even though "he only succeeded in stealing the personal assets of [the business's] employees"). Thus, the first and third elements of Hobbs Act robbery—Defendant's knowing taking of personal property and the interstate commerce impact (which Defendant does not even contest)—were satisfied by the evidence presented at trial.
With respect to the second element, it is a reasonable inference that Dhamyl was fearful of injury when she was suddenly assaulted by an unknown masked man with a gun, and that Miguel and Nicole were similarly in fear. N.V.C.'s statements fully support that conclusion as he described in detail his mother's reaction when confronted by the "bad guy" where she raised her hands up and said "No." (Gov. Exh. 98A). And separate and apart from any fear on the part of the victims, Defendant took the property against the victims' will by force and violence, resulting in their deaths. Thus, contrary to Defendant's argument, the evidence satisfied the second element of Hobbs Act robbery. See United States v. Hill, 890 F.3d 51, 56-57 (2d Cir. 2018) (discussing different ways in which Hobbs Act robbery may be accomplished, which include physical force or putting the victim in fear of injury); see also United States v. Taylor, 596 U.S. 845, 142 S. Ct. 2015, 2034, 213 L. Ed. 2d 349 (2022) (Alito, J., dissenting) ("[T]he elements of Hobbs Act robbery are (1) the unlawful taking or obtaining (2) of personal property (3) from the person of another (4) against his or her will (5) by means of actual or (6) by means of threatened force, or (7) by means of violence, or (8) by means of fear of injury. The first four elements must be proved in every case, while the last four are alternative elements any one of which is sufficient for conviction.").
Accordingly, Defendant's arguments that the evidence was insufficient to support the conviction on count 3 is rejected.
c. Murder While Engaged in Narcotics Conspiracy (count 4)
Defendant next contends that there was insufficient evidence for the jury to convict him of murder while engaged in a narcotics conspiracy because, to be guilty of the murders, the government had to prove that he was in the narcotics conspiracy, and it failed to do so, since Defendant was involved in only one cocaine drug transaction. (Dkt. 582 at 9-10 ("Absent his involvement in the conspiracy, together with his involvement of less than 5 kilograms of cocaine, Mr. Wilson cannot be held liable for the murders of Miguel, Dhamyl and Nicole.")).
"To convict a defendant of engaging in a narcotics conspiracy resulting in murder (or engaging in a narcotics conspiracy while engaging in a conspiracy to murder) under 21 U.S.C. § 848(e)(1)(A), the government need only prove beyond a reasonable doubt that one motive for the killing (or conspiracy to kill) was related to the drug conspiracy." United States v. Desinor, 525 F.3d 193, 202 (2d Cir. 2008). "The existence of other motives does not affect the government's ability to satisfy the 'engaging in' element, as long as there is a substantive connection between the defendant's role in the murder (or murder conspiracy) and his participation in the drug conspiracy." Id.
Here, the evidence presented at trial established that Dhamyl's murder was related to the drug conspiracy, including because it occurred during the drug sale and, as explained above, the evidence further established that Defendant intended to take the cocaine from Dhamyl against her will, which ultimately resulted in her murder. As discussed above in connection with count 1, the evidence supported the jury's conclusion that Defendant was involved in a narcotics conspiracy involving five kilograms or more of cocaine and this is the only argument raised by Defendant in connection with this particular count of conviction. Accordingly, Defendant's motion directed to count 4 is denied.
d. Firearm Convictions (counts 6 and 7)
Although Defendant's motion is also addressed to count 5, since that count has been dismissed on the government's motion as a lesser included offense of counts 6 and 7, the Court will not address the Rule 29 motion directed to count 5. Although for the same reasons that the evidence was sufficient to sustain the convictions on counts 6 and 7, it was likewise sufficient to support the conviction on count 5.
Defendant next contends that the evidence did not support his convictions for discharging a firearm because the evidence was insufficient to establish a drug trafficking crime or crime of violence—in this case, a narcotics conspiracy, murder while engaged in a narcotics conspiracy, or Hobbs Act robbery. (Dkt. 582 at 10). But as explained above, the evidence supporting Defendant's convictions for narcotics conspiracy, murder while engaged in a narcotics conspiracy, and Hobbs Act robbery was sufficient and, for those same reasons, Defendant's arguments fail pertaining to the evidence supporting his firearm convictions.
Defendant also contends that Reed did not observe who discharged the firearm, and that the jury "struggled with who possessed and/or discharged the firearm." (See id.). Although Reed testified that he did not see who fired the gun, he also testified that he observed Defendant with a firearm in 4 Roebling, and that neither he nor Cobb had a firearm. (See Dkt. 536 at 162; Dkt. 537 at 131). Further, Cobb testified that he saw Defendant shoot Nicole and Miguel. (See Dkt. 590 at 208-09 (Cobb testifying that he saw Defendant fire three shots into the van)). This evidence is more than sufficient to support the jury's verdict on these counts. Defendant's contention that the jury "struggled" with who fired the gun is speculative and amounts to no more than a disagreement with the jury's credibility assessment of the cooperating witnesses. Of course, a "reviewing court must 'defer[ ] to the jury's assessment of witness credibility and its assessment of the weight of the evidence.' " United States v. Pugh, 945 F.3d 9, 19 (2d Cir. 2019) (alteration in original and quoting United States v. Baker, 899 F.3d 123, 129 (2d Cir. 2018)); United States v. Riggi, 541 F.3d 94, 108 (2d Cir. 2008) ("All issues of credibility, including the credibility of a cooperating witness, must be resolved in favor of the jury's verdict."); United States v. Glenn, 312 F.3d 58, 64 (2d Cir. 2002) (reviewing court must defer to "the jury's resolution of conflicting testimony" even where it is "pock-marked with inconsistencies" (citation omitted)).
Thus, Defendant's motion directed to the sufficiency of the evidence supporting the convictions on counts 6 and 7 is denied.
e. Obstruction of Justice and Use of Fire (counts 8, 9, 10, 11, 12, 13, 14 and 15)
With respect to the counts involving obstruction of justice—in this case, the destruction of the bodies and clothing of Miguel, Nicole, and Dhamyl, along with the minivan—Defendant contends that his "mere presence" near the destruction of the minivan and bodies at 111 Tonawanda Street was not sufficient to convict him of those charges, and the evidence showed that he was not present during the mutilation and removal of Dhamyl's body to the firepit at 225 Box. (Dkt. 582 at 10-11). Defendant advances the same arguments with respect to the counts involving use of fire to commit a felony and damaging or destroying a vehicle by fire; in other words, that it was Cobb and Reed who built and maintained the firepit at 225 Box, and that his mere presence near the burning minivan was not enough to convict him. (Id. at 11-12).
Turning first to the obstruction and use of fire charges as they pertain to the body of Dhamyl, while the trial testimony established that Cobb dismembered her body and that Cobb and Reed manned the firepit to ensure that it was properly burning her body, Cobb and Reed both testified that Wilson was also at the fire during that time. (See Dkt. 592 at 91 (Cobb's testimony that "the three of" them were back at the fire to "make sure it stayed burning," and each of them participated, including that Defendant "grabbed the ice pick and . . . stirred through the fire"); Dkt. 537 at 25 (Reed's testimony that he, Defendant, and Cobb were back at the fire during the early morning of September 16, 2019)). Defendant was also seen on video surveillance arriving at 225 Box during the early morning hours. Accordingly, there was sufficient evidence of Defendant's personal involvement with the destruction of Dhamyl's body to support his convictions for the obstruction and use of fire charges.
The jury was also charged on aiding and abetting and vicarious liability under Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), which separate and apart from Defendant's personal involvement, would also support the jury's verdict with respect to one or more of the counts involving the destruction of Dhamyl's body.
With respect to the evidence supporting the obstruction, use of fire, and destroying a vehicle by use of fire charges as they pertain to the bodies of Miguel and Nicole and the destruction of the minivan, Defendant's argument that there was insufficient evidence supporting these convictions strains the bounds of credulity. The jury received evidence in various forms—including cellular GPS data, video surveillance, and witness testimony—supporting Defendant's involvement in the destruction of the bodies of Miguel and Nicole, and the van. Cobb testified at length with respect to how he and Defendant destroyed the victims' cell phones, bought gasoline on Bailey Avenue to burn the minivan, retrieved the minivan from the vicinity of 338 Scajaquada, and that Defendant drove it to 111 Tonawanda Street, and thereafter he and Defendant doused the minivan with gasoline and lit it on fire, while Miguel and Nicole's dead bodies remained inside. (See Dkt. 592 at 45-84). The minor victim N.V.C., who was present during the burning of the van, further stated that "the bad man" killed his parents, that there was "oil" on the minivan, and that the minivan was on fire. (See Gov. Exh. 98A).
The government also presented surveillance evidence supporting Defendant's involvement in destroying Miguel and Nicole's bodies. For example, location data associated with Defendant's cell phone placed Defendant at the gas station on Bailey, as well as at 111 Tonawanda Street at approximately 3:00 a.m. (See Dkt. 604 at 91-92, 98 (testimony of John Orlando, FBI Special Agent, detailing movements of Defendant's Google account)). In addition, video surveillance placed Defendant and/or the minivan he was driving at various locations in the City of Buffalo, including on Box Avenue (where Cobb testified Defendant retrieved a gas can) and at 111 Tonawanda Street. Likewise, evidence offered by Agent Orlando of location data from Defendant's cell phone, and location data from both Nicole and Miguel's cell phones, showed that those devices traveled to Darien Lake at the same time (see Dkt. 604 at 77-83), where Defendant admitted he attended a Meek Mill concert that evening. In other words, the evidence supported that Defendant took Nicole and Miguel's phones after the murders, and kept them with him while he traveled to Darien Lake.
The government also presented evidence from cell phones seized during the investigation, including evidence from the cell phone belonging to Defendant's girlfriend Clark which documented internet search history regarding the murders, and communications between Defendant and Clark. (See, e.g., Dkt. 602 at 15-16 (testimony by FBI Special Agent Steven Donnelly describing contents of cellular phone belonging to Clark, including internet searches conducted on October 1 and 2, 2019, for "parents burned in car fire in Tonawanda," and a search on September 25, 2019, for "footage of parents burned in car Tonawanda")). Finally, a gas cap left at 111 Tonawanda Street was found to have been 25 times more likely to include Defendant's DNA as a contributor to the mixture of DNA found on it.
In sum, all of this evidence supports the jury's finding of guilt on these counts, and that Defendant's involvement in the destruction of the bodies amounted to far more than his "mere presence" at the crime scenes. Accordingly, Defendant's motion directed to counts 8 through 15 is denied.
f. Marijuana Possession for Distribution (count 17)
Lastly, with respect to his conviction for possession with intent to distribute marijuana, Defendant contends that there is no evidence that he intended to distribute the marijuana, such as customer lists, sums of money, packaging materials, or customers visiting 164 Parkridge. (Dkt. 582 at 12-13). Defendant seemingly ignores that the marijuana seized at 164 Parkridge was packaged for resale, and there was evidence in the record that Defendant did not use marijuana—thus cutting against any argument that he possessed the marijuana for personal use. As explained above in the discussion of count 1, Cobb testified that he provided Defendant with marijuana so that Defendant could make money following his release from prison, and that Defendant asked him for advice on how to sell the marijuana.
In sum, the evidence supporting Defendant's guilt on each count of conviction is sufficient. Although the government's case relied in part on the testimony of the cooperating witnesses, the government presented voluminous proof at trial corroborating Reed and Cobb's testimony regarding what occurred leading up to and during the events of September 15 and 16, 2019, including testimony from over 50 witnesses, video evidence, Google and cellular location data, DNA evidence, ballistic evidence, and cellular communications, establishing Defendant's guilt. Accordingly, Defendant's motion for a judgment of acquittal is denied.
B. Rule 33 Motion
In support of his motion for a new trial pursuant to Rule 33, Defendant incorporates his arguments made in support of his Rule 29 motion. Further, Defendant points to a note received from the jury concerning the discharge of the firearm causing the death of Miguel and Nicole, which Defendant argues demonstrates that "the jury did not believe Mr. Wilson fired the gun." (Dkt. 582 at 29). Defendant contends that the jury note, coupled with the "conflicting" testimony and credibility issues of Reed and Cobb, make this a "close" case, which hinged to a large degree on the jury's perception of witness credibility and its assessment of Mr. Wilson. (Id.).
Rule 33 of the Federal Rules of Criminal Procedure allows a court to vacate a judgment and grant a new trial "if the interest of justice so requires." Fed. R. Crim. P. 33(a). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001). "The defendant bears the burden of proving that he is entitled to a new trial under Rule 33 . . . ." United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009) (further explaining that "a district court must find that there is a real concern that an innocent person may have been convicted" (internal quotation and citation omitted)). The Second Circuit recently reiterated: "While we have held that a district court may grant a new trial if the evidence does not support the verdict, we have emphasized that such action must be done sparingly and in the most extraordinary circumstances." United States v. Archer, 977 F.3d 181, 187 (2d Cir. 2020) (internal quotations omitted). The court clarified that "a district court may not grant a Rule 33 motion based on the weight of the evidence alone unless the evidence preponderates heavily against the verdict to such an extent that it would be 'manifest injustice' to let the verdict stand." Id. at 188. The court went on to further explain:
We stress that, under this standard, a district court may not 'reweigh the evidence and set aside the verdict simply
because it feels some other result would be more reasonable.' To the contrary, absent a situation in which the evidence was 'patently incredible or defie[d] physical realities,' or where an evidentiary or instructional error compromised the reliability of the verdict, a district court must 'defer to the jury's resolution of conflicting evidence.' And, as it must do under Rule 29, a district court faced with a Rule 33 motion must be careful to consider any reliable trial evidence as a whole, rather than on a piecemeal basis.Id. at 188-89 (citations omitted and alteration in original).
Turning first to Defendant's argument with respect to the jury note, Defendant refers specifically to a note marked as Court Exhibit 15 and received by the Court on November 2, 2022, which stated:
Are we interpreting vicarious liability correctly in determining guilt if he is in the conspiracy, not necessarily the principal actor?Following receipt of the note, the Court conferred with counsel and asked for input as to how it should respond. The Court rejected the government's request that the Court give a non-unanimity instruction, and instead re-instructed the jury on vicarious liability and confirmed that their verdict must be unanimous. Defendant expressly agreed with the Court's proposal in this respect, and he does not raise any objection to the instruction in that regard.
(Count 5, question 12).
Ex. If we find that members of the conspiracy used the firearm in the commission of a violent crime, is the defendant guilty through vicarious liability?
Do we have to be unanimous on question 12? If not, how could that be reconciled?
Instead, Defendant's argument rests on his theory that the note reflected by Court Exhibit 15 meant that the jury did not believe that Defendant discharged the firearm. Defendant's contention is speculative and lacks a basis in fact. Rather, the note reveals the jury had a question about the legal concept of vicarious liability, and how vicarious liability would apply "if" they found that members of the conspiracy used the firearm. Defendant's assumption about the meaning of the note invites the Court to speculate about the jury's deliberations, and the Court declines the invitation to do so. "Courts have always resisted inquiring into a jury's thought processes . . . ; through this deference the jury brings to the criminal process, in addition to the collective judgment of the community, an element of needed finality." United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (citations omitted); see also Anderson v. Miller, 346 F.3d 315, 326 (2d Cir. 2003) ("Inquiries into the thought processes underlying a verdict have long been viewed as dangerous intrusions into the deliberative process." (citation omitted)); see also United States v. Maxwell, No. 20-CR-330 (AJN), 2022 WL 1294433, at *15 (S.D.N.Y. Apr. 29, 2022) (where the defendant did not "expressly contend that the instructions were legally erroneous," rejecting Defendant's request "to speculate based on an ambiguous note that the jury disregarded" testimony in the record). Defendant cites to no support for his contention that the note somehow amounts to a "manifest injustice," or otherwise undermines the reliability of the jury's verdict.
As explained above, the Court disagrees with Defendant's arguments pertaining to the evidence and credibility of the witnesses. The evidence of Defendant's guilt produced at trial was significant. While there were some inconsistencies in the testimony of Reed and Cobb, and each had impeachable evidence that was brought out at trial going to their motivations and conduct, including that they are brothers, and both have criminal histories (see, e.g., Dkt. 590 at 17, 30-33 (Cobb's testimony that he began selling drugs at 14 years old, and regarding his prior federal convictions for drug trafficking); Dkt. 536 at 29 (Reed discussing prior federal conviction for narcotics conspiracy); see also Dkt. 525 (order granting request to admit Reed's prior perjury conviction as impeachment evidence)), as explained above, their testimony was corroborated by other evidence in the case, including video surveillance, Google and cellular location data, the videotaped interview of N.V.C., testimony from several other witnesses, and cell phone communications. The testimony by Reed and Cobb was also corroborated by the extensive law enforcement surveillance and investigation, and the Court found the law enforcement witnesses to be candid and accurate in their descriptions of the events in question.
This is not the rare case where the jury's resolution of conflicting evidence and assessment of witness credibility should be disregarded. See Ferguson, 246 F.3d at 133-34 ("[I]t is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment." (citation omitted)). Rather, the jury's verdict reflected a careful evaluation of the evidence, and it would be a manifest injustice for the Court to set aside the verdict and grant a retrial. Accordingly, Defendant's request for a new trial pursuant to Rule 33 is denied.
CONCLUSION
For the foregoing reasons, Defendant's motion to vacate and for a new trial (Dkt. 582) is denied.
SO ORDERED.