United States v. Ruth

Full title: UNITED STATES of America, v. Jaron RUTH, Defendant.

Court: United States District Court, W.D. New York.

Date published: Jan 6, 2022

578 F. Supp. 3d 392 (W.D.N.Y. 2022)

Opinion

1:18-CR-00004 EAW

2022-01-06

UNITED STATES of America, v. Jaron RUTH, Defendant.

Michael Paul Felicetta, Joseph M. Tripi, Government Attorneys, United States Attorney's Office, Buffalo, NY, for United States of America. Timothy W. Hoover, Hoover & Durland LLP, Herbert L. Greenman, Lipsitz Green Scime Cambria LLP, Buffalo, NY, for Defendant.

ELIZABETH A. WOLFORD, Chief Judge

Michael Paul Felicetta, Joseph M. Tripi, Government Attorneys, United States Attorney's Office, Buffalo, NY, for United States of America.

Timothy W. Hoover, Hoover & Durland LLP, Herbert L. Greenman, Lipsitz Green Scime Cambria LLP, Buffalo, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, Chief Judge

INTRODUCTION

On January 15, 2019, defendant Jaron Ruth ("Ruth") pleaded guilty to Counts 1 and 4 of an Indictment returned on January 3, 2018, charging him with conspiracy to possess with intent to distribute, and to distribute, 28 grams or more of cocaine base, a quantity of cocaine, and a quantity of marijuana in violation of 21 U.S.C. § 846 (Count 1), and possession of firearms in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 4). (Dkt. 56; Dkt. 57). Although Ruth admitted to the factual details related to his offenses of conviction as part of the plea, left unresolved was Ruth's responsibility for the murder of Henry Ackley, who was shot and killed inside his residence in Kill Buck, New York, on September 21, 2012. (Dkt. 56 at ¶ 4(e)).

To resolve that dispute, the Court held a sentencing hearing, which took place on August 17, 2020 through 21, 2020, continued on August 24, 2020, and concluded on September 17, 2020. (Dkt. 150; Dkt. 151; Dkt. 152; Dkt. 153; Dkt. 154; Dkt. 156; Dkt. 167). The purpose of the hearing was for the Court to receive evidence relating to the applicability of United States Sentencing Guideline ("U.S.S.G.") § 2D1.1(d)(1), cross-referencing U.S.S.G. § 2A1.1, for Ruth's alleged role in the murder of Henry Ackley on September 21, 2012. (See Dkt. 56 at ¶ 4(e)).

For reasons more fully explained below, the Court concludes that U.S.S.G. § 2D1.1(d)(1) ’s cross-reference to U.S.S.G. § 2A1.1 does not apply in this case, because the government has failed to demonstrate that the Ackley homicide is "relevant conduct" to the offenses to which Ruth pleaded guilty. However, the Court finds that it is more likely than not based on the credible evidence before it that Ruth committed the murder of Henry Ackley, and therefore pursuant to 18 U.S.C. § 3553(a) an upward variance from the recommended sentence under the Sentencing Guidelines to reflect that conduct may be warranted. BACKGROUND AND PROCEDURAL HISTORY

On January 3, 2018, Ruth was named in a five-count Indictment charging him with the following offenses: conspiracy to possess with intent to distribute, and to distribute, 28 grams or more of cocaine base, a quantity of cocaine, and a quantity of marijuana in violation of 21 U.S.C. § 846 (Count 1); distribution of 28 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B), and 18 U.S.C. § 2 (Count 2); using and maintaining a premises for drug trafficking in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 (Count 3); possession of firearms in furtherance of drug trafficking crimes in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2 (Count 4); and discharge of a firearm causing death, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 924(j)(1) (Count 5).¹ (Dkt. 1). Represented by prior counsel, Ruth filed omnibus pretrial motions on June 11, 2018, including a motion to suppress statements arising from an April 5, 2016 interview conducted with law enforcement at the Orleans Correctional Facility. (Dkt. 28). On October 1, 2018, the magistrate judge to whom this matter had been referred pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), issued a Report and Recommendation recommending that Ruth's motion to suppress be denied. (Dkt. 39).² No objections were filed, and the Court adopted the Report and Recommendation on October 22, 2018. (Dkt. 42).

1 Count 5 of the Indictment was the only charge expressly referencing the Ackley murder on September 21, 2012.

2 The magistrate judge also issued an Order granting the government's cross-motion for reciprocal discovery, and he noted that the remaining portions of Ruth's pretrial motions had been resolved at the August 24, 2018 oral argument. (Dkt. 39 at 1 n.2 & 3-4).

On January 15, 2019, Ruth pleaded guilty to Counts 1 and 4 of the Indictment. (Dkt. 56; Dkt. 57). Pursuant to the plea agreement, Ruth admitted to conspiring to distribute 28 grams or more of cocaine base, cocaine, and marijuana, including obtaining quantities of cocaine base from suppliers which he resold to drug users in Erie and Cattaraugus County during the time period of 2010 and continuing until in or about April 2013. (Dkt. 56 at ¶ 4(a) & (b)). Ruth further admitted that he possessed firearms to protect himself, his drugs, and drug proceeds. (Id. at ¶ 4(b)). Ruth admitted that he occasionally used marijuana and distributed small amounts of cocaine and marijuana during this time period. (Id. ). The plea agreement also contains the following provision:

On September 21, 2012, Henry Ackley was shot and killed inside his residence in Killbuck, New York, in the Western District of New York. The government submits that this murder is a factor the Court should consider at sentencing pursuant to Title 18 United States Code, Section 3553(a), and/or as relevant conduct such that the cross-reference to U.S.S.G. § 2A1.1(a) applies. The defendant denies participation in the murder of Henry Ackley and submits that the Court should not consider it at sentencing pursuant to Title 18, United States Code, Section 3553(a). The defendant further submits that the cross-reference to U.S.S.G. § 2A1.1(a) does not apply to the offenses of conviction.

(Id. at ¶ 4(e)). The parties agreed that, if the cross-reference applies, the aggregate sentencing range under the Sentencing Guidelines is 384 to 465 months imprisonment, whereas if the cross-reference does not apply, the sentencing range is 120 to 123 months imprisonment. (Id. at ¶ 11). Notwithstanding whether the cross-reference applies, the government agreed not to seek a prison sentence greater than 240 months (20 years). (Id. at ¶ 15).

The sentencing hearing took place on August 17, 2020, through 21, 2020, continued on August 24, 2020, and concluded on September 17, 2020. (Dkt. 150; Dkt. 151; Dkt. 152; Dkt. 153; Dkt. 154; Dkt. 156; Dkt. 167). The following witnesses testified at the hearing: Cory Higgins, a Task Force Officer (TFO) with the Drug Enforcement Administration (DEA) ("TFO Higgins"); Charlie McDade; Kenneth Smith, Jr.; Demario Watkins; Alesaundra Allen; Douglas Reed; and Jason Siafakas. (See Dkt. 145). The government also offered evidence in the form of pre-recorded video testimony of Amber Crouse ("Amber" or "Crouse") (see Dkt. 169 at 5), who implicated Ruth in the Ackley homicide. Amber Crouse is deceased and therefore did not testify at the hearing.³

3 Amber Crouse passed away from a drug overdose shortly before the plea hearing conducted in this matter on January 15, 2019. (Dkt. 177 at 56; see also Dkt. 205 at 20 ("In early January 2019, two months before Mr. Ruth's federal trial was to begin, Crouse passed away from a drug overdose. About a week later, the government and Mr. Ruth struck a plea bargain.")).

Following the hearing, on September 22, 2021, Ruth filed a motion to enforce a subpoena he had served on the Cattaraugus County District Attorney's Office (Dkt. 168), which the Court granted on October 20, 2021 (Dkt. 174). The parties submitted their post-hearing briefs on April 26, 2021 (Dkt. 204; Dkt. 205; Dkt. 206; Dkt. 207), and their responses on May 4, 2021 (Dkt. 208; Dkt. 209). The Court held oral argument on May 20, 2021, and reserved decision. (Dkt. 210).

DISCUSSION

I. Legal Standard

"At sentencing, disputed factual allegations must be proven by the government by a preponderance of the evidence...." United States v. Rizzo , 349 F.3d 94, 98 (2d Cir. 2003) ; United States v. Juwa , 508 F.3d 694, 701 (2d Cir. 2007) ("We have held that facts relevant to sentencing must be found by a preponderance of the evidence."). "The sentencing court's discretion is ‘largely unlimited either as to the kind of information [s]he may consider, or the source from which it may come.’ Any information or circumstance shedding light on the defendant's background, history and behavior may properly be factored into the sentencing determination." United States v. Carmona , 873 F.2d 569, 574 (2d Cir. 1989) (quoting United States v. Tucker , 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) ). In other words, sentencing proceedings are not "second trials." United States v. Fatico , 603 F.2d 1053, 1057 (2d Cir. 1979). The Second Circuit has held that the confrontation clause as articulated in Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), does not apply at sentencing, see United States v. Martinez , 413 F.3d 239, 243 (2d Cir. 2005) ("Nor did Crawford or Booker so undermine the rationale of Second Circuit precedent involving the consideration of hearsay testimony at sentencing that we may now overrule the decisions of earlier panels of this Court."), and the sentencing court may consider hearsay statements in determining an appropriate sentence, so long as in the case of a dispute the government introduces corroborating evidence, see United States v. Weinberg , 852 F.2d 681, 685 (2d Cir. 1988) ("It has long been established that hearsay evidence is admissible at a sentencing hearing. Even if the defendant challenges the hearsay portions of a presentence report, that evidence need not be disregarded if the government introduces corroborating evidence." (internal citations omitted)); United States v. Fell , No. 5:01-cr-12-01, 2018 WL 7247398, at *5 (D. Vt. Mar. 16, 2018) ("As the Fatico court stated: ‘[W]hen the defendant does not dispute the truth of the statements sought to be introduced or the statements are sufficiently corroborated by other evidence, hearsay is admissible in sentencing proceedings.’ " (citation omitted)); see also United States v. Scott , 614 F. App'x 567, 569 (2d Cir. 2015) (explaining that a district court may rely on hearsay evidence during sentencing, but that such hearsay evidence must be "sufficiently reliable").

"This is not to say ... that any and all consideration of hearsay testimony at sentencing proceedings is permissible. The Due Process Clause ‘is plainly implicated at sentencing,’ even though it does not require at sentencing ‘all the procedural safeguards and strict evidentiary limitations of the criminal trial itself.’ " Martinez , 413 F.3d at 244 (quoting Fatico, 603 F.2d at 1054 ); Juwa , 508 F.3d at 700 ("there are distinct limits to [the sentencing court's] discretion, and they include a defendant's due process right to be sentenced based on accurate information"). Specifically, "[d]ue process requires that some minimal indicia of reliability accompany a hearsay statement." Martinez , 413 F.3d at 244 (quoting United States v. Egge, 223 F.3d 1128, 1132 (9th Cir. 2000) ); see also United States v. Fell , 737 F. App'x 37, 40 (2d Cir. 2018) ("The parties do not dispute that evidence must carry sufficient ‘indicia of reliability’ for its admission at sentencing to satisfy due process."). Bearing this standard in mind, the Court evaluates the evidence presented at the sentencing hearing.

II. Hearing Testimony

The government called seven witnesses to testify at the hearing. The Court summarizes their testimony below.

A. Charlie McDade

Charlie McDade ("McDade") is from Olean, New York. (Dkt. 176 at 7).⁴ He has multiple criminal convictions, including for sexual misconduct, violation of probation, and grand larceny. (Id. at 62-63).

4 When referencing the page number(s) of the hearing transcripts in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.

In September 2012, McDade was living in Kill Buck, New York at Henry Ackley's house. (Id. at 8). Ackley's daughter Brenda Ackley, and Brenda's daughter, also lived in the home. (Id. at 9). McDade lived in the house rent-free, in exchange for helping Ackley with chores on the property. (Id. at 10-11). McDade, Ackley, and Brenda Ackley all used marijuana during this time. (Id. at 11). The marijuana was provided by Brenda. (Id. at 12).

McDade spent September 21, 2012 doing chores around the property. (Id. at 12-13). He made Ackley dinner and took Ackley's dog for two walks. (Id. at 13). McDade felt tired around 11:30 p.m. or 12:00 a.m. and went to bed. (Id. ). McDade went to sleep upstairs in Brenda Ackley's room—Brenda was not home that evening, and McDade wanted to watch her television—and Ackley went to his bedroom downstairs. (Id. at 13-15). McDade fell asleep in Brenda's room but was awakened "[a]t gunpoint, by a man wearing a gray hoodie, a bandana, a hat, dark jeans with embroidering on the back pockets, tan work boots, and a baseball cap, latex gloves, and plaid multicolored underwear." (Id. at 14). The intruder asked McDade "where the money and where the weed was." (Id. at 15). McDade testified that the intruder was holding a .44 revolver, which was silver with a brown wooden handle, and a cordless house phone he had taken off Brenda's dresser and put in his pocket. (Id. at 16).

McDade did not know where any money or weed was located, but the intruder directed him to search certain areas of the home. (Id. at 23, 45). McDade testified that as he and the intruder moved from room to room there were different lighting conditions (Dkt. 212 at 43-44), and it was in the kids’ room, where there was a light on, that he observed the intruder's tattoo for about five seconds (id. at 47). McDade testified that Brenda Ackley had two lock boxes which looked similar, and the intruder took with him the tan lockbox with a black handle located in Brenda's room, which he had tried to shoot open with the gun. (Dkt. 176 at 47, 49-50). However, the bullet ricocheted through the ceiling and into the first floor. (Id. at 54).

The intruder eventually instructed McDade to lay face down on the bed, and while laying on the bed McDade heard another gunshot, and Ackley yell and fall to the ground. (Id. at 56). McDade ran downstairs but the intruder was gone. (Id. ). Although he did not see a vehicle leaving the Ackley residence, he heard a door shut and the car sounded as if it was heading towards Allegheny or Olean. (Id. at 72-74). McDade called Brenda to get the address of the house and then called 911. (Id. at 29, 56-57). He also attempted to give Ackley CPR. (Id. at 39). The police arrived at the house and McDade was placed in the back of a police car. (Id. at 60-61). The police took McDade back to the station, where he gave a sworn statement and drew a picture of the tattoo he observed on the intruder's hand. (Id. at 77-78).

McDade testified that he spoke with Brenda the day after the home invasion during which time she asked him questions about the intruder. (Id. at 61). Brenda took him to the home of an individual named "Snoop," to discuss what had occurred on September 21, 2012. (Id. at 91). Brenda also took McDade to speak with an individual known as "Ghost" to discuss what had happened. (Id. at 96-97). McDade subsequently met with the Cattaraugus County Sheriff's office at the Ackley residence to walk them through what had occurred on September 21, 2012. (Id. at 17; see also Government Exhibit ("Gov. Exh.") 1).

McDade testified that Ackley drove a "black Blazer" which was parked in front of his home on September 21, 2012. (Dkt. 176 at 67). McDade also testified that the intruder had a tattoo of a "bold Old-English-type" letter "M" on his right hand, which was the first or last letter in a word going up the intruder's arm. (Id. at 74-75). In August 2017, McDade met with detectives to review a booklet of 31 tattoo photos. (Id. at 103). McDade looked through the photo booklet several times but was unable to identify the tattoo he saw on September 21, 2012. (Id. at 106-07; Dkt. 212 at 19-20; see also Defense Exhibit ("Def. Exh.") 1).

B. TFO Cory Higgins

TFO Higgins is employed with the Cattaraugus County Sheriff's Office and has been detailed to the DEA as a task force officer for the past 19 years. (Dkt. 176 at 118). TFO Higgins testified to his involvement investigating the Ackley homicide, which occurred at Ackley's residence, located at 6263 Route 417. (Id. at 120). TFO Higgins learned during his investigation that Brenda Ackley was involved in the sale of marijuana in various areas of Cattaraugus County. (Id. at 123-24). TFO Higgins also testified that a cordless telephone was recovered about one quarter mile away from the Ackley residence and in the western direction, towards Salamanca. (Id. at 140-44, 158). In early December 2012, TFO Higgins believed that the Ackley homicide was "a home invasion robbery for drugs," and that information had been developed that one of Brenda Ackley's sources of supply had stored a large quantity of money at the Ackley residence just prior to the homicide. (Id. at 151-54). TFO Higgins testified that other individuals, including an individual named "Snoop," had been investigated in connection with the homicide but excluded. (Id. at 154-55). Law enforcement began focusing their investigation on Salamanca, and identified Amber Crouse as an individual selling drugs, and who also had individuals from the City of Buffalo travel to Salamanca to sell drugs out of her house, including an individual named Demario Watkins. (Id. at 157-59).

TFO Higgins interviewed Watkins in December 2012, at which time Watkins gave him information related to drug trafficking. (Id. at 160-62). Watkins reached out to TFO Higgins again, at which time he told TFO Higgins that he had information relating to a homicide in Salamanca. (Id. at 163-64). Watkins told TFO Higgins that he provided an individual by the name of Amber Crouse with Lortabs, and on a recent occasion when they met for an exchange Crouse was accompanied by an individual he knew as "Ron." (Id. at 164-65). Watkins told TFO Higgins that a conversation occurred between himself, Crouse, and Ron, during which time they warned Watkins not to go to Salamanca, referenced "that girl we used to get the weed from," and said that they "had to leave somebody." (Id. at 165). Watkins referenced Brenda Ackley, gave a description of her home, and explained that they had gone there to obtain marijuana. (Id. at 166). TFO Higgins subsequently developed information identifying an individual named Alesaundra Allen, who lived on Green Street in Salamanca and was dating an individual named "Ja'Ron Ruth." (Id. at 171). At that time, TFO Higgins began looking at Ruth as a suspect in the homicide and also believed Crouse was involved. (Id. at 172).

TFO Higgins became aware through his investigation that Crouse, despite being from Salamanca, was staying away from that area and was living in Buffalo. (Id. at 175). Law enforcement eventually charged Crouse with a federal drug conspiracy in 2015. (Id. at 175-76). Following being charged, Crouse participated in several interviews, conducted pursuant to a proffer agreement, with the government. (Id. at 178; see also Gov. Exh. 358-2). During the first meeting on April 8, 2015, Crouse was not initially forthcoming with information relating to the Ackley homicide. (Dkt. 176 at 181-82). At the end of the interview, she told TFO Higgins that she was not willing to "go down" for what "Ron did." (Id. at 183). TFO Higgins next met with Crouse on December 4, 2015. (Id. at 188). Crouse gave information relating to drug trafficking but refused to talk about the Ackley homicide. (Id. at 189-90). TFO Higgins walked out of the proffer because he believed Crouse was withholding information. (Id. at 190).

Three days later, on December 7, 2015, Crouse proffered again. (Id. at 191). At that time, Crouse explained that she was with Ruth on September 21, 2012. (Id. at 194). She told TFO Higgins that she and Ruth got high together, and then went to work selling crack cocaine to other individuals. (Id. ). They did a couple of sales in Salamanca and then went into the town of Great Valley. (Id. at 194-95). Crouse and Ruth went to the camp of an individual named Johnny Oyler to sell him crack cocaine. (Id. at 195).⁵ Crouse told TFO Higgins that Ruth was "acting weird." (Id. ). At one point, while she and Ruth were embracing, Crouse felt a gun in the front of his pants. (Id. ). Crouse described the gun as a silver revolver with a brown handle. (Id. at 195-96). After leaving the camp, Crouse told TFO Higgins that she and Ruth drove west on Route 417 towards Salamanca, and during this time Ruth was "trying to pump himself up and get ready for something." (Id. at 196). Ruth and Crouse did "a little more coke," which was unusual for Ruth, who generally smoked weed. (Id. at 197). Ruth instructed Crouse, who was driving, to go west on Route 417, and they drove up a very short distance. (Id. ). Ruth instructed Crouse to pull over alongside the road, in front of the Ackley residence. (Id. ). Crouse parked on the right side of the road, facing traffic. (Id. ). Ruth exited the vehicle. (Id. ). He had gloves in his hand and went into the house. (Id. at 198). Crouse sat in the car, turned on the radio, and smoked a cigarette. (Id. ). Ruth came out of the house and slammed a safe on the back trunk of the car. (Id. ). He asked Crouse to open the trunk and placed the safe inside. (Id. ). Ruth got back in the car "in a hurry" and they "sped off in the direction of Salamanca." (Id. ). Crouse also reported to TFO Higgins that she smelled gunpowder at that time (see, e.g. , Dkt. 177 at 18), that Ruth had money and marijuana when he came back out of the house (Dkt. 179 at 122), and that she did not see a car parked in the driveway at the Ackley house on September 21, 2012 (id. at 86-87). Ruth instructed Crouse to drive down by the river. (Dkt. 176 at 197). They got out of the car and smoked marijuana. (Id. at 199). Ruth seemed "really excited and happy." (Id. ). When they heard sirens, Crouse asked Ruth "what did you do?" (Id. ). Ruth responded that "you and I are now connected for life, because only you know what happened back there." (Id. at 199-200).

5 TFO Higgins clarified that the camp belonged to an individual named Carl Robinson, but Johnny Oyler was present at the camp. (See Dkt. 179 at 159-60).

Following the third proffer, Crouse was moved from Niagara County, where she was incarcerated, to the Cattaraugus County jail. (Id. at 201). During the transport, law enforcement conducted a drive-along with Crouse, so that she could show them the route she took with Ruth on September 21, 2012. (Id. at 202). The drive-along occurred on December 8, 2015. (Id. ). Crouse also told TFO Higgins that when she and Ruth were down by the river after leaving Ackley's house, she felt a movement from Ruth and saw a splash in the water. (Dkt. 212 at 58).

TFO Higgins met with Crouse again on December 14, 2015. (Id. at 63). The interview was video recorded (id. at 64; see also Gov. Exh. 8), and Crouse's attorney was present (Dkt. 212 at 65). The video was admitted into evidence and played for the Court during the hearing. (Id. at 65-69, 76-77). The interview lasted a total of three hours. (Id. at 78). TFO Higgins interviewed Crouse for a final time on March 16, 2016. (Id. at 83; see also Gov. Exh. 9). The interview was video recorded, and Crouse's attorney was present. (Dkt. 212 at 81, 84). TFO Higgins testified that he interviewed Crouse again because he felt there were some things she was "withholding." (Id. at 85). The video was admitted into evidence and played during the hearing. (Id. at 83-87; Dkt. 177 at 4-7).

As a result of the information TFO Higgins learned from Crouse relating to Ruth's possibly throwing an object in the river, there were ultimately three dives that took place in the river to locate what was suspected to be the firearm used in the Ackley homicide. (Id. at 10; see also Dkt. 179 at 89-90; Dkt. 197 at 3). None of the dives resulted in the recovery of the firearm.⁶ (Id. ).

6 TFO Higgins first testified that only one dive, conducted by the New York State Police in late 2015, occurred. (Dkt. 177 at 10; Dkt. 179 at 89; see also Dkt. 197 at 3 & Def. Exh. 49). However, TFO Higgins later testified that a second dive, conducted in early 2016, occurred. (Dkt. 179 at 89; see also Dkt. 197 at 3 & Def. Exh. 49). Later, the government disclosed evidence of a third dive conducted by the FBI's dive team in November 2016. (Dkt. 197 at 3; see also Def. Exh. 48-1 through 48-8).

TFO Higgins also testified to Crouse's conduct while on supervised release in connection with her federal case.⁷ Crouse ultimately entered into a plea agreement in connection with her federal charges on March 2, 2016, which included a cooperation agreement. (Dkt. 177 at 53-54; Gov. Exh. 358-6). Crouse was released on supervision after her guilty plea, but she engaged in serial violations of her conditions of release both before and after sentencing. (Dkt. 177 at 55-56; see also Def. Exhs. C12 through C31). Her bail was revoked and she was taken into custody on October 5, 2016, after she violated her conditions of pretrial release. (See United States v. Crouse , Case No. 15-CR-00091, Dkt. 60). On December 14, 2016, Crouse was sentenced to time served and released on conditions, including home detention with electronic monitoring for six months. (Id. , Dkt. 72). Only eight days later, on December 22, 2016, the Court issued an arrest warrant because Crouse failed to follow probation's instructions for initiation of her electronic monitoring. (Id. , Dkt. 74). She was detained (id. , Dkt. 77), and on March 22, 2017, pleaded guilty to the violation and she was sentenced to five months incarceration with a new three-year term of supervised release that included a condition to participate in inpatient drug addiction treatment. (Id. , Dkt. 90). However, after release from custody Crouse failed to report as directed, and another warrant was issued for her arrest on June 15, 2017 (id. , Dkt. 95), and she was detained (id. , Dkt. 98). On August 16, 2017, she was released from custody so that she could enter a secure inpatient drug treatment program. (Id. , Dkt. 105 & Dkt. 106). Crouse was released from drug treatment in November 2017 and placed on electronic monitoring for the remainder of her out-patient treatment. (Id. , Dkt. 116). Several status conferences on the violation of supervised release followed (id. , Dkt. 121, 123, 124), but Crouse again violated the conditions of her release, and the Court issued another arrest warrant on March 29, 2018 (id. , Dkt. 126). Crouse was again detained and she pleaded guilty on May 24, 2018 (id. , Dkt. 133) and was sentenced to time served followed by one year of supervised release on August 2, 2018 (id. , Dkt. 137). Yet another warrant was issued for Crouse's arrest on November 8, 2018 (id. , Dkt. 141), but it was ultimately returned unexecuted (id. , Dkt. 142). Crouse had resumed using opiates during this time and she died from a drug overdose before the plea hearing in this case. (Dkt. 177 at 56).

7 Crouse's federal case, United States v. Crouse , Case No. 15-CR-00091, was also assigned to the undersigned. Accordingly, the Court is fully familiar with Crouse's conduct while on supervised release, which included several violations of her conditions of release.

TFO Higgins, along with two additional officers from the Cattaraugus County Sheriff's Office, interviewed Ruth at the Orleans State Penitentiary on April 6, 2016. (Id. at 59-60). Ruth was incarcerated for a shooting that had occurred in Buffalo, New York, where he had shot at an individual named Jenee Moody, the mother of some of his children. (Id. at 60-61). Moody was holding their infant child and their other child was standing next to her when the shooting occurred. (Id. at 61). TFO Higgins's interview with Ruth was video recorded, and it was admitted into evidence and played for the Court during the hearing, up to the point that Ruth invoked his right to counsel (id. at 62, 66-70). The officers showed Ruth a series of photographs of individuals to whom Ruth had sold drugs—including Jason Siafakas and Douglas Reed (id. at 76-92)—and he denied knowing many of these individuals. Ruth admitted to knowing Crouse (id. at 93) but denied ever being at her house (id. at 97) or at the Ackley residence (id. at 99). Law enforcement also took photographs of Ruth's tattoos on his forearms and hands. (Id. at 107-08). One of those tattoos, which was on the back of Ruth's right hand, read "Kim," with "some fancy scrolling around ... its exterior." (Id. at 111).

On cross-examination, TFO Higgins testified that Brenda Ackley told the grand jury that the safe allegedly taken by Ruth was empty and that there was only a very small amount of marijuana in the house at the time, which was not stolen. (Dkt. 179 at 57-58, 127). TFO Higgins also acknowledged that Crouse had been inconsistent about some aspects of what had occurred on September 21, 2012 (id. at 65), including that she had lied about working at the Seneca Nation (id. at 66). Crouse also attempted to have her employer falsify employment records so that it appeared she had worked on the morning of September 21, 2012. (Id. at 107-08). TFO Higgins also testified that Johnny Oyler told law enforcement, when they went to interview him, that Crouse had not been to his cabin since about 2005. (Id. at 70-71). TFO Higgins testified that several individuals came forward with information about the Ackley homicide, including an individual who said that he and another individual committed the crime, but they were not charged. (Id. at 141-43).

C. Kenneth Smith, Jr.

Kenneth Smith, Jr. ("Smith") is from Olean, New York and lived with his grandmother in Olean in 2012. (Dkt. 180 at 6-7). He has one conviction for possession of marijuana. (Id. at 30).

Smith knew Brenda Ackley through his mother and began purchasing marijuana from her when he was 17 or 18 years old. (Id. at 7). Smith was also friends with an individual named Ally Allen during this time and saw her three to four times per week. (Id. at 9-10). He met Ruth, who was dating Allen, in 2012. (Id. at 10-11). Smith spent time with Allen and Ruth at Allen's house in Olean, including by smoking marijuana, hanging out, and playing video games. (Id. at 11-12). Smith also spent time with Ruth and Allen, and Brenda Ackley, at his mother's home in Olean, New York, where they played video games and smoked. (Id. at 13-14). Smith testified that he was present on occasions when Brenda Ackley sold marijuana to Ruth, including a transaction that took place at Allen's home before Ackley was killed. (Id. at 14). Smith explained that typically they would send Brenda Ackley a text message, and she would show up 30 to 40 minutes later and drop off the marijuana. (Id. ). Ruth and Allen were present at parties Smith's mother had at her home, where there were typically 8 to 15 people present. (Id. at 27-28).

On September 21, 2012, Smith was at his grandmother's house with four or five friends. (Id. at 15-16). He texted Brenda Ackley for marijuana, and when she arrived at the house told him that her father had just been murdered and that she had to leave "everything she had"—probably an ounce or two of marijuana—with him so she could go take care of her father. (Id. at 16-17). Smith testified that he held onto the marijuana but then flushed some of it later when he got nervous about investigators coming to the house. (Id. at 17). Smith spoke with Brenda Ackley the next day, and she told him to tell investigators that she was picking up 20 dollars he owed her. (Id. at 18). Smith initially told investigators that Brenda Ackley came to his house to pick up the 20 dollars, but later changed his story and told them that she was dropping off marijuana. (Id. at 18-19).

D. Demario Watkins

Demario Watkins ("Watkins") is from Buffalo, New York but spent time in Cattaraugus County. (Dkt. 180 at 36). He began selling cocaine and crack cocaine when he was 21 years old, including selling crack cocaine in Cattaraugus County. (Id. at 37-38). Watkins has an extensive criminal history, including four felony convictions and 20 misdemeanors (id. at 56), including for giving a false name (id. at 53).

Watkins met Ruth, who he knew as "Ron," through Allen and a woman named Carmen, who told him that Ruth could "help [him] get rid of some stuff." (Id. at 39). Ruth also introduced Watkins to Crouse, who helped him sell crack cocaine. (Id. at 41-42). In 2011, Watkins was arrested at Crouse's home for possession of narcotics and spent eight months in prison, and he was released in 2012. (Id. at 43). Watkins and Ruth were not friendly, and were "competitors" with respect to Crouse, as they both sold crack cocaine with her. (Id. at 72).

After he was released from prison, Watkins resided in Buffalo and Crouse reached out to him for pills, including Lortabs. (Id. ). During one of these transactions, he met Crouse "on Amherst and Grant" in Buffalo. (Id. at 44). Prior to the meeting Watkins heard that a homicide had occurred in Kill Buck, and he was surprised that someone was killed in a quiet area. (Id. at 44-45). Watkins arrived in a vehicle, and Crouse arrived in a vehicle, accompanied by Ruth. (Id. at 45). Watkins testified that Crouse exited the car and spoke with him briefly, during which time she said that it was "hot" in Salamanca, and that "we had to leave somebody."⁸ (Id. at 46). Watkins testified that he took Crouse's statement that they had to "leave" somebody to mean that "somebody got killed." (Id. at 47). Ruth was still sitting in the vehicle when Crouse made these statements and did not make any statements himself, but he had his window down and was nodding his head, which Watkins took as "basically confirming that it is hot out there...." (Id. at 47-48). Watkins testified that Crouse referred to "the girl [he] used to get weed from," her name was Brenda Ackley, and he previously bought marijuana from Brenda Ackley at Crouse's house. (Id. at 49-50).

8 On cross-examination, Watkins testified that an earlier statement he gave to TFO Higgins of what had occurred—which placed Ruth driving the car and Crouse in the passenger seat, and Ruth saying "it's real crazy down there"—was not accurate. (Dkt. 180 at 83-84).

Watkins was subsequently arrested and incarcerated. (Id. at 53). He reached out to law enforcement and TFO Higgins came to visit him, during which time TFO Higgins asked about "stuff that was happening in Cattaraugus," including about a homicide, and Watkins told TFO Higgins to "let [him] think about it." (Id. at 54). Watkins met with TFO Higgins on "a couple" different occasions, and during the second meeting gave him Ruth's name, which he knew to be "Ron." (Id. at 54-55). Watkins also testified before the federal grand jury (see id. at 55; Gov. Exh. 354-3), at which time he also testified to the conversation he had with Ruth and Crouse that they had to "leave somebody." (Gov. Exh. 354-3). After he was released from prison in 2016, Watkins had another meeting with TFO Higgins. (Dkt. 180 at 120-21). By that time, Watkins had children and had "slowed down a lot." (Id. at 121). Watkins was not happy to hear from TFO Higgins and he did not want to testify against Ruth, and he informed TFO Higgins that he had no interest in continuing to talk to him. (Id. at 121-22, 124; see also Gov. Exh. 354-2). Watkins told TFO Higgins that he had lied previously, and TFO Higgins informed Watkins that if he changed his story he would be charged with perjury, and told Watkins to tell the truth. (Dkt. 180 at 103-04, 134). Watkins testified that he was telling the truth, that he told the truth when he testified before the grand jury, and that when he first met with TFO Higgins he was truthful to the best of his ability. (Id. at 125-26).

E. Alesaundra Allen

Alesaundra Allen ("Allen") is from Olean, New York, and has three children with Ruth. (Dkt. 180 at 141). She met Ruth when she was 18 through her cousin Carmen and her friend April, and she eventually moved into an apartment with Ruth at 114 West Green Street in Olean. (Id. at 142). Allen had a history of abusing pills and alcohol but did not begin smoking crack cocaine until moving to West Green Street, which she obtained from other individuals, including Ruth. (Id. at 144). Ruth also sold crack cocaine out of that location, including to individuals Allen identified as "Jason from the Pyramid, T Bird and ... Dougie Fresh." (Id. at 144-45). Allen testified that during the time she lived with Ruth, he generally wore "[b]aggie pants, Timberlands ... [and] [p]laid underwear." (Id. at 145). She also testified that she saw firearms at West Green Street, including a short gun that was "brown" and was "maybe a revolver." (Id. at 145-46). Allen saw this gun on only one occasion, located in the upstairs closet. (Id. at 146).

Allen and Ruth's first child was born on October 4, 2012. (Id. at 143). Prior to her son's birth, Allen had a scheduled induction date. (Id. at 146-47). Allen had expected Ruth to be present for the birth because he had bought things for their son, and they had a conversation that she was being induced. (Id. at 148-49). However, Ruth was not present for their son's birth, despite his being aware of the issues she had during her pregnancy. (Id. at 147). Allen testified that she "had a conversation" with Ruth on October 3, 2012, and that he "was supposed to be there and he said that something had happened and that he had to get back to Buffalo because at the time I lived in Olean...." (Id. at 147-48).

Allen testified that she was interviewed by law enforcement on March 31, 2016, during which time she stated she had never seen Ruth with handguns, except once in the beginning of 2013, when she observed a gun located under a bed. (Id. at 151-52, 156). Allen gave birth to her and Ruth's second son on October 10, 2013, and she continued living in Olean through 2012 and 2013. (Id. at 156-57).

F. Douglas Reed

Douglas Reed ("Reed") is from Salamanca, New York and went by the nickname "Fresh." (Dkt. 180 at 162). At the time of the hearing, he was in custody for a parole violation, and he was previously convicted in state court for a scheme to defraud. (Id. at 162-63). Reed's crimes entail, among other things, burglaries, larceny, and knocking on people's doors and telling them lies or false stories to get money from them, which he used to feed his drug habit. (See, e.g., id. at 176-94).

Reed testified that he knew Crouse, and they used to "party" and "get high" together, including by using cocaine, pills, alcohol, and heroin. (Id. at 163-64). Reed also knew Ruth, who he knew as "Ron." (Id. at 165). Reed met Ruth through Crouse when he was "in the middle of purchasing drugs." (Id. ). Prior to going to prison in 2012, Reed purchased cocaine and crack cocaine from Ruth two to three times per week from his residence on Green Street, in Olean. (Id. at 166). Reed testified that he observed Ruth with firearms, including a revolver which was silver with a brown handle.⁹ (Id. at 168).

9 Reed previously told law enforcement that he had not observed Ruth with guns but was confident Ruth had them. (Dkt. 180 at 199). During his testimony, Reed explained that when he gave those statements, he was in a jail facility and surrounded by inmates, and therefore he was unable to talk freely. (Id. at 214-15).

Reed testified that he had a lengthy criminal history and struggled with addiction for most of his life. (Id. at 168-69). He has been in and out of prison and was in Cattaraugus County jail in late 2018. (Id. at 169). He was housed in the "C unit," where Ruth was also housed at the time. (Id. at 170). Reed had a conversation with Ruth "in front of the microwave," during which Ruth asked him "out of nowhere": "Amber tried to set me up, right?" (Id. ). Reed testified that Ruth told him that Crouse had tried to get him in trouble for the homicide that happened in Kill Buck, New York, and that "a guy came out and he tried slapping the gun out of his hand and the gun accidentally went off and blew his face—or shot his face off or something along those lines." (Id. ). Reed clarified that Ruth said the gun had gone off accidentally when the man tried slapping it out of Ruth's hand. (Id. at 171). Reed further testified that Ruth said something about Ackley getting into his "stash spot." (Id. at 171-72). Reed felt "real awkward" after that conversation and asked to be moved off the housing unit. (Id. at 171). After his conversation with Ruth, Reed gave a statement to the Cattaraugus County Sheriff's Office. (Id. at 172-75).

G. Jason Siafakas

Jason Siafakas ("Siafakas") is from Kill Buck, New York. (Dkt. 178 at 4). He has a history of using controlled substances, including cocaine, crack cocaine, and "molly," but has been clean since January 4, 2018. (Id. ). Siafakas met Ruth in 2010 through Crouse, with whom he grew up. (Id. at 5-6). He also knew Brenda Ackley and purchased marijuana from her between 2010 and 2012. (Id. at 7). Siafakas spent time with several individuals, including Ruth and Crouse, at a camp belonging to Carl Robinson, and at a boat launch along the Allegany River, during the time period of "2010, 2012." (Id. at 9-11). Siafakas testified that people would "party" at these locations. (Id. ). Siafakas described Ruth's appearance during this time, including that he typically wore jeans, Timberland or rubber boots, a tank top, and that you could always see his boxer briefs. (Id. at 17-18).

During this time, Siafakas purchased cocaine and crack cocaine from Ruth "hundreds" of times, and he testified that he was "very close" with Ruth during those years. (Id. at 11-12). Siafakas had observed Ruth with firearms during this time, one of which he described as a silver revolver with a brown handle. (Id. at 12-13). Ruth had threatened Siafakas with a firearm, including one occasion when he "pulled out a gun and told me ... not to mess with his money. That if I messed with his money, that there was gonna be consequences." (Id. at 13). Siafakas testified that when someone failed to pay Ruth back for fronting them drugs, "[h]e made a gesture ... he would do that cha-cha [clicking noise] ... he was gonna get his." (Id. at 14, 17). He further testified that Ruth would get his money back through other means, including robbing and stealing, and that he would "do what he had to do to get what was his." (Id. ). Siafakas testified that Ruth made this sound and gesture to him at least 20 times. (Id. at 39). Siafakas made a controlled buy from Ruth in June 2013, in Buffalo. (Id. at 51).

Siafakas testified that Ackley's murder occurred when he was out of town, and his family was worried because they "knew the kind of atmosphere and people [he] was hanging around." (Id. at 8). Following the Ackley homicide, Siafakas did not see Ruth in the Salamanca area again. (Id. at 24). Ruth told Siafakas that it was "too hot" down in that area, and therefore Siafakas met him in Buffalo to buy drugs during that time. (Id. at 24-25). In 2013, Siafakas had a conversation with Ruth about the Ackley homicide, at which time Siafakas said how it was "crazy" that there was a murder that happened in Kill Buck. (Id. at 25-26). In response, Ruth said that "it was dealt with," and "made that clicking, cha-cha" noise, while simultaneously making a hand gesture, with his index and middle finger out, and his thumb up. (Id. at 26-27). Siafakas testified that he took Ruth to mean that he "took them out," meaning that "he was eliminated. The threat was eliminated. You know, killed, shot." (Id. at 26, 29).

In 2016, Siafakas met with Detective Mageria, who he testified was his cousin, and Detective Mageria asked him if he had information about the Ackley homicide. (Id. at 35-36). Siafakas told Detective Mageria about his conversation with Ruth, which he said occurred in September 2012, as opposed to spring 2013. (Id. at 36-37). Ruth told Detective Mageria that he would tell him if Ruth had actually told Siafakas that he had killed Ackley, but that he "just [didn't] know." (Id. at 40).

Siafakas has a federal criminal drug conviction, and he pleaded guilty in that case.¹⁰ (Id. at 20). At the time Siafakas gave his testimony he was on supervised release. (Id. ). He testified that he was "clean, sober," and participated in outreach programs in his local area. (Id. ). Siafakas has other criminal convictions, including for driving while intoxicated and choking a significant other, and for assault, burglary, and trespassing. (Id. at 66-67, 73). He experienced a brain aneurysm when he was incarcerated in March 2019, which he testified does not affect his ability to recall information, but that he has trouble retaining new information. (Id. at 21). Siafakas testified before the federal grand jury in December 2017, but did not receive any benefits in exchange for his cooperation. (Id. at 23). Although he told the grand jury that he had been sober since that August, that was not accurate, as he tested positive for drugs after that time and before his grand jury appearance, as he had just relapsed. (Id. at 80-81, 103). Siafakas testified that, in the past, he has lied to his family about his drug use, and that he was using and selling drugs during the time he was cooperating with law enforcement. (Id. at 32).

10 Siafakas's federal case, United States v. Siafakas , Case No. 17-CR-00159, was also assigned to the undersigned.

III. Video Evidence

As explained above, the Court received several videos into evidence at the hearing, including video statements given by Crouse and a portion of law enforcement's interview of Ruth.

A. Interview of Ruth

Law enforcement, including TFO Higgins, interviewed Ruth on April 5, 2016. (See Gov. Exh. 13). Ruth waived his rights and agreed to speak with investigators. Ruth initially thought the officers were visiting him to talk about Allen and his paying child support. When TFO Higgins began showing him photographs of individuals involved in a drug trafficking investigation Ruth appeared to be surprised, but agreed to look at the photographs to see if he could identify any of the individuals.

Ruth identified Allen and Crouse but denied knowing any of the other individuals in the photographs. He stated that he did not live in Salamanca but spent some time there at the casino and had family in the area, and that he met Allen there. Ruth also denied selling and using drugs with Crouse, and denied being at Crouse's residence. When investigators showed Ruth photographs of areas around Cattaraugus County, including Route 417, an area down near the Allegany River, the Ackley residence, as well as a photograph of Henry Ackley's body, Ruth denied being at the Ackley residence or ever possessing a silver revolver.

B. Crouse Interviews

The first video recorded interview occurred on December 14, 2015, and TFO Higgins and Detective Kenneth Rice from the Cattaraugus County Sheriff's Office were present. (Gov. Exh. 8). Crouse reported that she was using drugs in May 2011, including opiates, cocaine, crack cocaine, and marijuana, and she was selling crack cocaine to several individuals in Salamanca to support her own drug habit. Crouse was trafficking crack cocaine with other individuals, including Watkins and Ruth. They sold crack cocaine out of Crouse's house on East State Street in Salamanca. On one occasion someone was shot at her home, and Crouse was shot in Buffalo in retaliation for the shooting at her house. After she was shot, Crouse at times stayed in Buffalo with Ruth.

Eventually Ruth was the only individual Crouse allowed to sell drugs at her house in Salamanca. They also went to other areas to sell drugs, including in Kill Buck by meeting customers at the Pyramid, or at the houses of other individuals. Crouse reported that she met people to sell drugs down near the Allegany River. Crouse observed Ruth with several firearms, including a revolver, shotgun, and semi-automatic pistol. Crouse described their days to consist of selling and using drugs, and doing some social things, and she described how she and Ruth cut and packaged the crack cocaine they sold.

Crouse told TFO Higgins and Detective Rice about an incident that occurred on September 21, 2012. She drove to work at the Seneca Nation early that day in a silver Lincoln. Ruth picked her up from work around 4:30 p.m. and they sold drugs and went to Johnny Oyler's cabin. Crouse noticed Ruth was carrying a revolver that evening. When they left, Ruth told Crouse they needed to stop somewhere on the way back. Ruth used cocaine, which was unusual for him, and Crouse reported that he was getting himself "amped up." She believed he was going to "rough someone up" for money they owed to him.

They drove on Route 417, and Ruth instructed her to pull to the left side of the road, facing traffic. Crouse recognized the house because Ruth had stopped there before. Ruth had clear plastic gloves on his hands and pulled his hoodie down over the gloves, and he was wearing jeans, a hat, plaid boxers, brown boots, and a bandana tied around his neck. He told Crouse to "be ready" when he came out. Crouse did not see any other car in the driveway while she was there. When he came back, Ruth appeared to be carrying something, which he placed in the trunk. He hurried to get in the car and had a bag of marijuana on his lap. Crouse recalled smelling gunpowder at that time. They drove towards Salamanca and went down towards the water. Crouse was hugging Ruth and felt a gun in his waistband. Thereafter, she felt a body movement and heard a splash in the water, but could not say what Ruth had thrown in the water. Thereafter, Crouse did not feel the gun in Ruth's waistband. Crouse described Ruth as "giddy" at that time, and in a "celebratory" mood.

Crouse and Ruth went back to Crouse's house, and Ruth carried a safe inside. They both went back out to sell drugs. Crouse later drove Ruth to Allen's house, during which time Ruth told Crouse not to mention what had happened earlier because someone had died. Crouse stated that she did not know why Ruth had committed the robbery, but she knew he had dealt with the individuals who lived in that house in the past. To her knowledge, the safe was in Buffalo.

The second video interview occurred on March 16, 2016. (See Gov. Exh. 9). The conversation focused on the Ackley homicide, and Crouse recounted much of the information she reported previously. Crouse told investigators that Ruth told her "someone back there died," and that they were stuck together because only she knew what happened. Crouse described the safe Ruth was carrying into her house as hunter green in color, and after putting the safe upstairs Ruth came down and had changed his sweatshirt. Crouse told investigators that Ruth told her that someone's son was present in the house and he only shot the man once. Crouse initially stated that she did not remember Ruth explaining why he went to the house but reported that she had been to the house approximately five times with Ruth and had never been inside.

After taking a short break, Crouse told law enforcement that she had additional information relating to Ruth's motivation for the September 21, 2012 robbery. Three-to-four days before the incident Ruth and Crouse went on a "coke binge." Ruth "wrecked somebody's van," but they "took off" and did not file a police report. They were "broke" and had only enough money to "re-up" on drugs. Ruth continued giving Crouse drugs but told her that it would be "all right," that he "had a plan," and that he would "take care of everything." Crouse reported that Ruth knew there was a fireproof box in the Ackley house with money in it and that the people living in the house were selling marijuana. Ruth was going to go into the house to get the marijuana and money. He told Crouse earlier in the day they were going to "make a move," and after leaving Johnny Oyler's cabin that evening, Crouse asked Ruth when they were going to get things "straightened out" because she had continued using crack throughout the day. Ruth told her not to worry and that they were going to take care of it "right now."

When they pulled up to the house, Ruth told Crouse to turn the headlights off, keep the car running, and to "be ready." Crouse felt uneasy about what was going to happen, because the individuals living in the house did not owe Ruth anything—as opposed to when Ruth would take belongings from drug users who owed him money—and that in this instance, Ruth was going to take something that did not belong to him.

After leaving the house and when they got down by the river, Ruth was panicking and confessed to Crouse that he had killed "that guy," and told her in a threatening way "you're stuck with me now." Crouse was concerned about what had happened to the "kid" Ruth had said was in the house. Ruth calmed down after smoking marijuana.

Crouse stated that Ruth liked to remind her that she knew what he was capable of, because she was the only one who knew what occurred that evening. She and Ruth lived off the money he took from the house for "awhile," and Ruth went to Buffalo to re-up with the money he had taken. Crouse did not know how much money was in the safe and did not know how Ruth got into the safe but reported that he left her $500 in "dope" and a few hundred dollars. Crouse could not recall what car she was driving on the night in question, as they drove several different Lincoln automobiles.

IV. Factual Findings

A. Amber Crouse Testimony/Statements

Ruth contends that Crouse's hearsay statements are inadmissible, as they lack sufficient indicia of reliability and are not independently corroborated. (Dkt. 205 at 21-47). He argues that the Court should not consider them in connection with sentencing.

The Court has reviewed Crouse's federal grand jury testimony (Gov. Exh. 11 & Gov. Exh. 12), her testimony before the Cattaraugus County grand jury (Gov. Exh. 10), and the video recorded interviews with TFO Higgins (Gov. Exh. 8 & Gov. Exh. 9), and concludes that it may consider some of Crouse's hearsay statements because they are corroborated by independent evidence. Crouse's statements of the events that occurred on the evening of September 21, 2012, have primarily been consistent. In addition, because two of Crouse's statements were videotaped, the Court was able to observe Crouse's tone and demeanor while speaking with law enforcement which, while not a substitute for live testimony, assists the Court in assessing her credibility. Contrary to Ruth's contention that law enforcement "put words into Crouse's mouth," the Court found Crouse's statements during the interviews to be detailed, and Crouse was forthcoming with information both relating to her drug trafficking activities in general and relating to the events of September 21, 2012. While there were occasions during the interviews where Crouse was plainly nervous about certain information she was providing and therefore had to be prompted by law enforcement to continue, the Court does not believe this reflects negatively on her credibility.

Ruth contends that Crouse's statements "cannot corroborate themselves" (Dkt. 205 at 26), and the Court agrees with that statement. See, e.g., United States v. Hightower , 312 F. Supp. 3d 426, 431 (S.D.N.Y. 2018) (declining to admit hearsay in connection with supervised release proceeding where "the Government relie[d] exclusively on a single declarant's out-of-court statements to prove its entire case," and explaining that "[i]f the Government's inculpatory evidence consists entirely of the unsworn statements of a single declarant, then the defendant has a due process right to put that declarant under oath, subject them to cross-examination, and permit the factfinder to observe their demeanor"), aff'd , 950 F.3d 33 (2d Cir. 2020) ; see also Carmona , 873 F.2d at 575 (holding admission of hearsay evidence is proper when it is corroborated by sources "sufficiently independent and similar" (emphasis added)). Ruth cites the Second Circuit's decision in Fell , 737 F. App'x 37, where the court found that a deceased co-defendant's statements, which were "replete with indications that [his] statements are unreliable," including because the statements were made "in situations in which [he] had a strong incentive not to be truthful," did not carry sufficient indicia of reliability and therefore were barred by the Fifth Amendment. Id. at 40. However, in that case, the court also concluded that the district court's search for corroboration was "deficient," because several portions of the co-defendant's statements which went to the aggravating factors of sentencing were "wholly uncorroborated by other evidence." Id. Ruth also cites the Second Circuit's decision in Scott , 614 F. App'x 567, where the court found that the district court, in applying a sentencing enhancement that the defendant manufactured and produced counterfeit currency, erred when it relied on out-of-court statements made by the defendant's co-conspirators following their arrests. Id. at 568-69. There, the district court had applied the enhancement in the absence of a sentencing hearing, and the court further explained that the "corroboration" cited to by the district court "in reality ... merely supported facts that [the defendant] readily admitted," and therefore there was "insufficient independent evidence in the record to prove the crucial allegation ... that [the defendant] manufactured or produced the counterfeit currency." Id. at 570. Here, contrary to Ruth's implication and as further explained below, Crouse's statements concerning Ruth's involvement in the Ackley homicide do not stand alone, but are corroborated by other evidence in the record, including by the testimony of other witnesses at the hearing who did not have a motive to be untruthful.

In his response papers, Ruth cites United States v. Edwards , 994 F. Supp. 2d 11 (D.D.C. 2014), aff'd sub nom. , 827 F.3d 1134 (D.C. Cir. 2016), where the court found that the government did not meet its burden of establishing the defendant's participation in multiple murders and a home invasion. Id. at 17. In that case, the court specifically found that "the testimony presented was either based on attenuated hearsay or lacked sufficient detail to link Defendant to the specific crime the Government alleged he participated in." Id. For example, the court found that an officer's testimony that an informant told him the defendant participated in a home invasion was not sufficient because the court did not have the opportunity to observe the informant and evaluate his credibility as to the defendant's admission. Id. at 19-20. Likewise, the court found that testimony from the defendant's co-defendants, who testified that the defendant had killed people in a specific area but did not link him to particular homicides, was insufficient to establish by a preponderance of the evidence that the defendant was responsible for the murders of two specific victims. Id. at 19. Here, by contrast, Watkins, Siafakas, and Reed, all testified at the hearing that Ruth admitted his participation in Ackley homicide, and therefore they were available to Ruth for cross-examination and the Court can evaluate their credibility as witnesses.

The Court finds that Crouse's testimony, insofar as it relates to Ruth's involvement in the Ackley homicide, is corroborated and has sufficient indicia of reliability, for the following reasons. First, Crouse's statements as to Ruth's appearance on September 21, 2012—that he was wearing a hooded sweatshirt, tan boots, clear plastic gloves, a bandana around his neck, and plaid style boxers, and carried a silver revolver with a wooden handle—are corroborated by McDade's description of the intruder in the Ackley house on September 21, 2012. Likewise, Crouse's statements that Ruth murdered Ackley are corroborated by other witness testimony. While Ruth contends that the government has failed to offer evidence corroborating Crouse's statement that Ruth killed Ackley (see Dkt. 208 at 8), that assertion simply is not supported by the record, because Watkins, Siafakas, and Reed each testified to Ruth's admissions concerning his involvement in the Ackley homicide. While Ruth argues that Watkins's testimony as to his knowledge of Ruth's involvement in the Ackley homicide is based, at least in part, on Crouse's own statements (see, e.g. , Dkt. 205 at 26 ("Channeling Crouse's voice through Watkins does not corroborate her any more than playing her recorded interviews or asking Officer Higgins to describe them")), both Siafakas and Reed—whose testimony the Court found particularly persuasive—testified independently to separate conversations they had with Ruth, during which Ruth admitted that he killed Ackley.

Finally, Crouse's statements that Ruth left Cattaraugus County following the Ackley homicide are corroborated by both Allen and Siafakas, who also testified to their knowledge of Ruth returning to Buffalo during that timeframe. Accordingly, even considering Crouse's credibility issues—which the Court acknowledges were significant—the Court finds that key portions of the statements she gave pertaining to Ruth's participation in the Ackley homicide are corroborated by independent evidence from other witnesses. Moreover, the Court recognizes that the origin of much of Crouse's credibility issues was related to her all-consuming drug addiction. In other words, Crouse's statements pertaining to Ruth's involvement in the Ackley homicide have at least a "minimal indicia of reliability," so as to satisfy the Court that her statements in those respects are reliable and accompanied by reasonable corroboration. Therefore, the Court considers those corroborated statements in connection with sentencing.

Ruth points to certain inconsistencies in the record, which he asserts demonstrate that Crouse was lying and therefore undermine her statements relating to his involvement in the Ackley homicide, including that Johnny Oyler told the government Crouse had not been to his camp since 2005, that Crouse did not see a vehicle in the driveway at the Ackley residence on September 21, 2012, the color of the safe Ruth took from the house, that Crouse reported she and Ruth drove towards Salamanca, while McDade said he heard a vehicle leave towards Olean, and that no gun was recovered from the river. (Dkt. 205 at 28-39). Ruth further calls into question the examination of Crouse by law enforcement, which he argues "undercuts the admissibility of her statements" because they "repeatedly put words into Crouse's mouth[.]" (Id. at 44).

The Court recognizes that not every detail provided by Crouse over the course of her several hours of interviews with law enforcement is corroborated. For example, the only account of her and Ruth's activities early in the day on September 21, 2012 is based on Crouse's statements, only. However, the critical portions of Crouse's statements for purposes of sentencing—her statements relating to Ruth's involvement in the Ackley homicide—are corroborated by independent evidence presented at the hearing, including from other government witnesses. Further, while the Court agrees that the evidence supports that some statements Crouse made to law enforcement—such as her employment with the Seneca Nation—were deliberately false, the evidence does not support that the minor inconsistencies in the record highlighted by Ruth—such as Crouse's testimony concerning the color of the safe in question and whether there was a car in Ackley's driveway—were purposeful lies. Rather, those inconsistencies are more likely the result of the fact that the events in question occurred in 2012, and law enforcement first spoke with Crouse almost three years later in 2015. In other words, due in large part to the passage of time, the Court finds it reasonable that Crouse's memory of certain details of the night in question are not perfectly accurate, and explain why law enforcement was unable to confirm other details she provided. See, e.g., United States v. Hoskins , No. 3:12cr238 (JBA), 2019 WL 3890831, at *9 (D. Conn. Aug. 19, 2019) (noting that the passage of time may cause witness memories to fade). Accordingly, the Court finds it may consider Crouse's statements in connection with sentencing Ruth, at least insofar as those statements are corroborated by independent evidence.

B. The Ackley Homicide

In making its determination as to whether the government has proven by a preponderance of the evidence that Ruth committed the murder of Henry Ackley, the Court has considered the credibility of the government witnesses who testified at the hearing. The civilian witnesses are far from model citizens and, as discussed above in connection with the summary of their hearing testimony, many of them have extensive criminal histories. In conjunction with his post-hearing submissions, Ruth submitted an affidavit from Phillipe S. Yates, an investigator for the Cattaraugus County Public Defender, who stated that Crouse began to speak about Ruth's involvement in the Ackley homicide only after she was charged with federal crimes. (Dkt. 206 at 4-5). In addition, Ruth provided documents from Erie County Family Court, calling Allen's credibility into question. (Id. at 7-18; see also Dkt. 207-1). Ruth also provided documents relating to charges Reed sustained in February 2021, for stealing money. (Dkt. 206 at 2 at ¶ 4, 20). Ruth has also provided a September 7, 2017 email from Lori P. Rieman, the Cattaraugus County District Attorney ("DA Rieman"), to law enforcement, expressing that she had "serious concerns" with the Ruth case as the trial approached. (Id. at 22).

These submissions do not provide any significant additional information than what is already before the Court. The Court is well aware that Crouse was cooperating with the government, and it is not uncommon for a defendant to begin cooperating only after she is charged with a crime. As explained above, the evidence before the Court at the hearing established that Reed has a criminal record and that Allen has addiction issues, both of which were fueled at least in part by Ruth previously providing them with crack cocaine. Finally, although the email from DA Rieman documents that she had some "serious concerns" about the case, she did not testify at the sentencing hearing, and therefore the Court can only speculate about the basis for those concerns. And in any event, a prosecutor's concerns about the ability to prove her case beyond a reasonable doubt before a jury, is not particularly relevant to this Court's determination as to whether the factual record before it demonstrates that it is more likely than not that Ruth committed the murder.

The Court has considered all the facts and the arguments advanced by Ruth in connection with assessing the credibility of the government's witnesses at the hearing. The Court acknowledges the inconsistencies among certain aspects of the witnesses’ testimony and the legitimate arguments concerning the credibility of the witnesses. However, on the whole, the Court finds the witness testimony at the hearing to be largely credible—and importantly, the government is not simply relying on one witness to support its position, but rather it is relying on the testimony of several witnesses including testimony as to admissions made by Ruth which the Court credits as believable.

The Court acknowledges that Crouse provided information against Ruth in connection with a cooperation agreement (see Gov. Exh. 358-6), but most of the government's witnesses had no apparent motivation to provide testimony favorable to the government. For example, neither Reed nor McDade received any benefit for their testimony. (See Dkt. 176 at 63; Dkt. 180 at 215). Watkins testified that he received some benefit for the information he provided to Ruth; while law enforcement delayed charging him with a drug sale, he was ultimately prosecuted for that charge. (See Dkt. 180 at 57-58). Siafakas also testified that he did not receive any benefit in exchange for his cooperation in the investigation against Ruth (Dkt. 178 at 23-24)¹¹ , and his testimony was largely consistent with the testimony he gave before the federal grand jury (see Gov. Exh. 357-2). In addition, much of the testimony the government's witnesses gave about Ruth in particular—including his drug trafficking activities, his associates, and his connection to Cattaraugus County—was consistent.

11 Ruth disputes both the government's and Siafakas's statement that he did not receive cooperation credit for his testimony against Ruth. (Dkt. 208 at 14). The government contends that while Siafakas had a cooperation agreement in connection with his plea, "that benefit was not related to the investigation or prosecution of [Ruth]." (Dkt. 209 at 14). Siafakas was sentenced prior to his giving testimony against Ruth at the hearing and he also testified that he did not receive any cooperation credit for his testimony. This Court sentenced Siafakas and is fully familiar with the circumstances surrounding his plea of guilty, and any "cooperation" in connection with Ruth's prosecution was not argued to the undersigned at the time of sentencing.

Having found the testimony provided by the government's witnesses to be generally credible, the Court further finds that this testimony supports by a preponderance of the evidence that Ruth committed the Ackley homicide, for the following reasons.

As explained in detail above, the witnesses have testified with remarkable consistency relating to Ruth's appearance during the time he would have committed the murder, including that he routinely wore jeans with his plaid boxers exposed and Timberland boots. This description matches McDade's description of the intruder. Several witnesses confirmed that Ruth carried a silver revolver with a brown or wooden handle, which also matches McDade's description of the gun carried by the intruder. Likewise, as further explained above, the description Crouse offered of Ruth on the night in question matches the description McDade gave of the intruder. (See also Dkt. 179 at 15-17 (TFO Higgins explaining that the descriptions given by McDade of the intruder and given by Crouse of Ruth were consistent, including that he was wearing a hooded sweatshirt, boots, clear plastic gloves, a handkerchief over his face, plaid style boxers, and carried a silver revolver)). Further, there is no evidence in the record supporting that McDade, or anyone else for that matter, provided to Crouse a description of the intruder so that she could frame Ruth for the Ackley homicide.

Further, many of the witnesses at the hearing testified to Ruth's sudden absence from Cattaraugus County following the Ackley homicide, including because it was "hot" in that area and that he was returning to Buffalo. For example, Allen testified that Ruth was not present for their son's birth, despite his being aware of the issues she had during her pregnancy. (Dkt. 180 at 147). Allen testified that she "had a conversation" with Ruth on October 3, 2012, and that he "was supposed to be there and he said that something had happened and that he had to get back to Buffalo because at the time I lived in Olean...." (Id. at 147-48). Likewise, Siafakas testified that following the Ackley homicide, he did not see Ruth in the Salamanca area again. (Dkt. 178 at 24). Ruth told Siafakas that it was "too hot" down in that area, and therefore Siafakas met him in Buffalo to buy drugs during that time. (Id. at 24-25). The timing of Ruth's move from Cattaraugus County to Buffalo—which was shortly after September 21, 2012—also supports his involvement in the Ackley homicide.

The Court has also considered the evidence relating to the tattoo. McDade testified that the intruder had a tattoo of a "bold Old-English-type" letter "M" on his right hand, which was a letter in a word going up the intruder's arm. Like the intruder, Ruth also has a tattoo on the back of his right hand. Ruth's tattoo reads "Kim," with scrolling around the exterior of the tattoo. McDade drew a picture of the tattoo he observed on the intruder's hand shortly after the Ackley homicide (see Dkt. 176 at 78; Gov. Exh. 351-6), and that picture consists of a capital letter "M" with certain areas shaded, and therefore does not match Ruth's tattoo exactly. Ruth argues that McDade's description of the tattoo on the intruder and Ruth's tattoo are not identical, and in fact, McDade was not able to identify the tattoo he observed on the intruder from a tattoo array, which included Ruth's right hand tattoo as one of the photos in the array. (Dkt. 205 at 18, 29-31, 48-50; see also Dkt. 197 at 15-16 & Court Exh. 1). The Court does not find the inconsistencies in the appearance of the tattoo described by McDade, or McDade's inability to identify Ruth's tattoo from the array, to be exculpatory to Ruth, but rather they reflect the circumstances under which McDade viewed the tattoo; i.e. , during a stressful situation, for a short time span, in dim lighting conditions, and with the perpetrator wearing latex gloves. In other words, the Court finds it significant that both the intruder described by McDade, and Ruth, have a scripted tattoo of the letter "M," with scrolling around it on the back of his right hand. McDade's inability to positively identify Ruth's tattoo as the tattoo that he observed does not undermine the Court's conclusion that, indeed, it was Ruth who confronted McDade on the night in question.

Finally and importantly, in addition to the statement given by Crouse, three witnesses testified that Ruth admitted in one way or another that he killed Ackley. As noted above, the Court was particularly persuaded by the testimony of Reed and Siafakas in this regard. Reed testified that Ruth admitted to him while they were incarcerated in the Cattaraugus County Jail in late 2018, that Ackley tried slapping the gun out of Ruth's hand, and the gun accidentally went off and shot Ackley. (Dkt. 180 at 170). Likewise, Siafakas testified that he knew Ruth to rob and steal, that Ruth made threatening gestures to him on several occasions, and in connection with the murder in Kill Buck, that Ruth told him that "it was dealt with," which Siafakas took to mean that Ruth "took them out." (Dkt. 178 at 26-29).

All of this evidence supports by at least a preponderance of the evidence that Ruth murdered Henry Ackley. To reject this evidence offered from several different witnesses, as advanced by Ruth, the Court would likely have to conclude that the government's fact witnesses had learned of the Ackley homicide in the community and then conspired together (or with law enforcement) to frame Ruth. That scenario is just not plausible. As explained above, the Court finds the testimony offered by the government's witnesses to be generally credible. Likewise, TFO Higgins testified that he never shared McDade's description of the intruder with Crouse. (Dkt. 179 at 15). While Ruth offered evidence that the Ackley homicide was generally discussed in the small Kill Buck community, there is nothing in the record to even remotely support the conclusion that Crouse, Siafakas, Watkins, and Reed somehow utilized that generally-known information to present false testimony in an effort to frame Ruth for the Ackley homicide.

Moreover, Ruth's statement to law enforcement conflicts sharply with the testimony of other witnesses. For example, Ruth minimized his activities in Salamanca, in an apparent effort to distance himself from the scene of the crime. Ruth stated that he visited Salamanca to visit the casino, that he did not sell drugs there, and denied knowing several individuals who testified extensively as to their purchasing drugs from him. Although Ruth admitted to knowing Crouse, he significantly minimized his relationship with her, telling law enforcement that he had never been to her house, despite other evidence in the record, including police reports, confirming that Ruth had been at her residence. (See Gov. Ex. 20; see also Dkt. 204 at 23). Accordingly, having carefully reviewed all the evidence presented, the Court concludes that the government has proven by a preponderance of the evidence that Ruth committed the murder of Henry Ackley on September 21, 2012, by shooting him with a firearm.

V. Conclusions of Law

A. Application of U.S.S.G. § 2D1.1(d)(1)

Although the Court has determined that the government has proven by a preponderance of the evidence that Ruth committed the Ackley homicide, it further concludes that U.S.S.G. § 2D1.1(d)(1) ’s cross-reference to U.S.S.G. § 2A1.1 does not apply in this case, for the following reasons.

The Sentencing Guidelines provide:

If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply § 2A1.1 (First Degree Murder) or § 2A1.2 (Second Degree Murder), as appropriate, if the resulting offense level is greater than that determined under this guideline.

See U.S.S.G. § 2D1.1(d)(1). Section 2A1.1 specifies an offense level of 43 for first degree murder, id. at § 2A1.1(a), and applies in cases of premeditated killings and "when death results from the commission of certain felonies" id. , Application Note 1. "A district court must make ‘specific factual findings,’ by a preponderance of the evidence, to support any sentencing enhancement under the Guidelines." United States v. Ahders , 622 F.3d 115, 119 (2d Cir. 2010) (citing United States v. Espinoza, 514 F.3d 209, 212 (2d Cir. 2008) ).

"The murder cross-reference applies only if the ‘murder is relevant to [the defendant's] offense of conviction under guideline § 1B1.3.’ " United States v. Anderson , 689 F. App'x 53, 57 (2d Cir. 2017) (alteration in original) (quoting United States v. Taylor , 813 F.3d 1139, 1150 (8th Cir. 2016) ); see also United States v. Montalvo , 467 F. Supp. 3d 136, 141 (W.D.N.Y. 2020) ("Under the Sentencing Guidelines, a principal concept to determine whether conduct is to be included in a Guidelines offense level calculation is whether the conduct qualifies as ‘relevant conduct.’ "). The Guidelines define "relevant conduct" to include "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant ... that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." See U.S.S.G. § 1B1.3(a)(1)(A). "Relevant conduct" includes both charged and uncharged conduct. Ahders , 622 F.3d at 120. Further, "[t]he words ‘relevant conduct’ suggest [that] more is required than mere temporal proximity, as the other conduct must be ‘relevant’ and it must occur ‘during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.’ " United States v. Wernick , 691 F.3d 108, 115 (2d Cir. 2012) (second alteration in original) (quoting Ahders , 622 F.3d at 122 ). In other words, " ‘[o]ne criminal act does not become "relevant" to a second act under the Guidelines by the bare fact of temporal overlap.’ The Guidelines refer to ‘relevant conduct’ as ‘all acts ... by the defendant ... that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.’ " United States v. Plaza , 752 F. App'x 37, 46 (2d Cir. 2018) (citations omitted); Anderson , 689 F. App'x at 58 ("Though facially expansive, this Court has explained that to qualify as ‘relevant conduct’ under § 1B1.3(a)(1), the conduct must occur in the course of commission of the offense of conviction." (quotations, citation, and alterations omitted)).

The circumstances under which Ackley was killed—a felony murder committed during a robbery—would constitute murder under federal law. See 18 U.S.C. § 1111(a) ("Murder is the unlawful killing of a human being with malice aforethought. Every murder ... committed in the perpetration of, or attempt to perpetrate ... robbery ... is murder in the first degree."). However, the government has failed to present evidence that the Ackley homicide occurred during the commission of the offenses of conviction, in preparation for those offenses, or in the course of attempting to avoid detection or responsibility for those offenses, which is required for application of the enhancement. In other words, the government has failed to articulate the connection between the Ackley homicide and the drug trafficking conspiracy to which Ruth pleaded guilty in Count 1, or his possession of firearms in furtherance of those drug trafficking activities, as set forth in Count 4.

"A murder is not relevant conduct to a drug conspiracy under the Guidelines merely because the murder was within the time frame of the conspiracy." Montalvo , 467 F. Supp. 3d at 145. In Montalvo , the defendant pleaded guilty to conspiracy to possess with intent to distribute, and to distribute, five kilograms or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and 841(b)(1)(A), and the government argued that evidence introduced during the sentencing hearing established that the defendant planned and aided and abetted an armed burglary and robbery during which the murders of his former co-conspirators occurred. Id. at 138-39. While the court found that the defendant participated in the robberies, the government had failed to link that conduct to the offense of conviction, explaining that while "[t]he motives for the November 11, 2004 armed burglary and robbery ... during which defendant Montalvo's felony murders of Nelson and Miguel Comacho occurred are not clear," the government had failed to show "by a preponderance of specific evidence" that the murders arose "in the course of commission of the defendant's drug conspiracy offense of conviction or in attempting to avoid responsibility for that offense." Id. at 145-46. The Court further explained that the murders did "not appear to have arisen from any particular cocaine transaction or series of transactions" and had "occurred 11 months after defendant Montalvo and the victims ceased participating in one another's cocaine trafficking," and noted that no cocaine or currency were stolen during the robbery, nor was there any evidence that the robberies were planned to settle a debt or obligation arising out of the defendant's drug trafficking conspiracy. Id. at 146.

Similarly, in United States v. Taylor , the Eighth Circuit remanded a case for resentencing, where the district court improperly applied the murder cross reference in § 2D1.1(d)(1) of the Guidelines for his alleged involvement in a murder. 813 F.3d 1139. In that case, the defendant was involved in a marijuana-trafficking conspiracy and he was convicted at trial of conspiracy to distribute less than 100 kilograms of marijuana. Id. at 1146. The defendant's presentence investigation report indicated that he, his cousin, and a third unidentified man were suspected of murdering a man named Edward Ewing, while attempting to recover stolen cocaine and cash. Id. At sentencing, the government introduced a video interview of Ewing's girlfriend, who identified the defendant as one of the men who had attacked Ewing. Id. Further, one of the investigating officers testified that a large sum of money had been stolen from the cousin, and that Ewing may have been accused of the theft. Id. Based on this record, the district court found that the murder was "drug-related activity," and applied the murder cross reference in the drug trafficking guideline. Id. On appeal, the Eighth Circuit affirmed the defendant's conviction but vacated the sentence. Id. at 1151. In finding that the murder cross-reference did not apply, the court explained:

Subsection (a)(1) of § 1B1.3 specifies that relevant conduct includes all acts "that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." U.S.S.G. § 1B1.3(a)(1). In this case, there was no evidence that the Ewing murder occurred during, in preparation for, or in the course of attempting to avoid detection for the marijuana conspiracy of which Vickers was convicted. Even if the murder was "drug-related activity" as the district court found, the government alleges that it arose from the theft of cocaine, not marijuana. In addition, there was no evidence that either of Vickers’ alleged accomplices in the Ewing murder were connected to the marijuana conspiracy. Based on this lack of evidence, we conclude that the district court erred to the extent that it found that the Ewing murder was relevant conduct under subsection (a)(1).

Id. at 1150-51.

Here, the government has failed to link the robbery and murder that occurred at the Ackley house on September 21, 2012, to the drug trafficking crimes to which Ruth pleaded guilty. The government states that "[t]he defendant's commission of the murder ‘resulted from’ his involvement in a drug trafficking conspiracy wherein he distributed controlled substances, including marijuana, in the Southern Tier." (Dkt. 204 at 57). It focuses on the fact that Ruth purchased marijuana from Ackley in the past, Crouse's statements that Ruth went into the Ackley residence to steal marijuana and money, and Ruth's admission to distributing small amounts of marijuana in the plea agreement. (Id. at 58-59). The government also relies on the fact that the Ackley homicide occurred on September 12, 2012, which is temporally within the time frame of the drug trafficking conspiracy to which Ruth pleaded guilty in Count 1 (between 2010 until April 2013). (See id. at 59 ("The conspiracy charged in Count One of the Indictment, to which the defendant pleaded guilty, ranges in date from in or before 2010 to in or about April 2013, thereby encompassing the date of the Ackley homicide, September 21, 2012.")). However, as explained above, mere temporal overlap is insufficient to trigger application of U.S.S.G. § 2D1.1(d)(1). Likewise, as further explained below, the Court does not find the facts that Ruth purchased marijuana from Ackley in the past and admitted to distributing small amounts of marijuana sufficient to meet the specific factual finding required to trigger application of U.S.S.G. § 2D1.1(d)(1), given other evidence before the Court relating to the Ackley homicide.

While the evidence at the hearing revealed that Ruth knew Brenda Ackley, had been to her house before, and had purchased small amounts of marijuana from her in the past, it did not establish that Ruth and Ackley ever conspired together to sell cocaine, crack cocaine, marijuana, or any other drug. Brenda Ackley did not identify Ruth or Crouse as individuals to whom she routinely sold marijuana. (See Def. Exh. 47 at 13). It is also unclear from the record whether Ruth redistributed any marijuana obtained from Brenda Ackley in connection with the conspiracy to which he pleaded guilty; in fact, Smith's testimony suggests that Ruth purchased marijuana from Brenda Ackley for his own personal use. (See, e.g. , Dkt. 180 at 13-15 (Smith describing that when he was at his mother's house, he, Ruth, and Allen would play video games and smoke, and when they wanted marijuana, they would text Brenda Ackley)).

Further, there is no evidence demonstrating that the Ackley homicide occurred in preparation for a drug sale, during a drug sale, or following a drug sale. See Plaza , 752 F. App'x at 41, 46 (district court properly applied murder cross-reference where the defendant killed woman standing at window during a shooting by the defendant and his co-conspirator as part of narcotics trafficking conspiracy); United States v. Jackson , 782 F.3d 1006, 1014 (8th Cir. 2015) (district court properly applied murder cross-reference, where it found that "the conspiracy continued after the rain-interrupted ruse drug deal and that it included the killing of Benson"). Nor is there evidence indicating that Ruth was robbing the Ackley residence to eliminate competition with another drug supplier. See, e.g., United States v. Craig , 808 F.3d 1249, 1257-58 (10th Cir. 2015) (death of co-conspirator resulting from attempted robbery of rival drug dealer organized by defendant was in furtherance of underlying conspiracy and thus was relevant conduct warranting application of murder cross-reference); United States v. Rodriguez-Reyes , 714 F.3d 1, 14 (1st Cir. 2013) (application of first-degree murder cross-reference appropriate where evidence supported that attack on rival drug trafficking organization was intended to eliminate competition and protect the defendants’ own drug trafficking activity); United States v. Clay , 579 F.3d 919, 924-25, 929-30 (8th Cir. 2009) (application of murder cross-reference appropriate where the defendant planned the murder of his co-conspirator in connection with their trafficking marijuana).

Finally, although Crouse told investigators she believed Ruth took from the Ackley residence a large bag of marijuana and money from the safe, Crouse stated that she and Ruth smoked some of the marijuana themselves—not that they sold the marijuana as part of any drug trafficking conspiracy. With regard to any money taken from the house, Crouse told investigators that she and Ruth lived off the money she assumed was in the safe for "awhile," that Ruth gave her three-hundred dollars, and Ruth went to Buffalo to "re-up" on drugs; however, Crouse also stated that she never saw what was inside the safe and she was not sure how or when Ruth obtained access to the safe. Further, Brenda Ackley testified that there was no money in the lockbox stolen from her house on September 21, 2012, nor was there any marijuana in the house at the time. (See Def. Exh. 47 at 48, 58, 60). In other words, the Court does not believe that Crouse's uncorroborated statement that she believed Ruth took money from the Ackley residence and used the money to re-up on drugs, as supporting a finding that the Ackley homicide occurred during the commission of the offenses of conviction, in preparation for the offenses, or in the course of attempting to avoid detection or responsibility for the offenses, sufficient to trigger application of U.S.S.G. § 2D1.1(d)(1) ’s cross-reference to U.S.S.G. § 2A1.1. See, e.g., Montalvo , 467 F. Supp. 3d at 146 (explaining that "[t]he conflicting evidence that five kilograms of cocaine were targeted for theft was insufficient to establish that purpose for the armed burglary and robbery," so as to trigger application of the murder cross-reference). Accordingly, based on the evidence before it, the Court cannot make the necessary "specifical factual findings by a preponderance of the evidence," to support application of U.S.S.G. § 2D1.1(d)(1) ’s cross-reference to U.S.S.G. § 2A1.1. See Ahders , 622 F.3d at 119.

"We cannot simply assume every act committed by a convicted criminal, no matter how heinous, is connected and relevant to the offense of conviction. To do so would turn the relevant conduct analysis into an impermissible conduit for punishing uncharged and unproven conduct and would circumvent the criminal process." United States v. Sellers , 512 F. App'x 319, 332 (4th Cir. 2013). The only individual possessing first-hand knowledge of Ruth's motivation for entering the Ackley residence on the evening of September 21, 2012, was Crouse, and she reported that Ruth robbed the Ackley residence because he and Crouse had gone on a coke binge and she had continued using for herself the drugs they intended to sell, and as a result they were "broke." Crouse specifically distinguished the events of September 21, 2012 from the robberies Ruth had committed previously, which he committed in connection with money owed to him because of his drug trafficking conspiracy.

In sum, the government has failed to articulate how the robbery and murder of Henry Ackley on the evening of September 21, 2012, was connected to the offenses to which Ruth pleaded guilty, and the evidence before the Court suggests that Ackley's murder was the result of a garden-variety robbery. Accordingly, the cross-reference to U.S.S.G. § 2A1.1(a) does not apply.

B. The Ackley Homicide as a Basis for an Upward Variance

As explained above, the Court concludes that U.S.S.G. § 2D1.1(d)(1) ’s cross-reference to U.S.S.G. § 2A1.1 does not apply, and therefore the Ackley homicide does not factor into Ruth's offense level and applicable Guidelines range. However, pursuant to 18 U.S.C. § 3553(a), the Ackley homicide may justify a variance from the recommended sentence under the Sentencing Guidelines.¹² The Court anticipates that, in advance of sentencing, it will receive briefing from the parties addressing the applicability of the § 3553(a) factors and whether a variance is warranted. Accordingly, the Court will not engage in an analysis of these factors at this time.

12 The Court notes that a departure from the applicable Guideline range, pursuant to U.S.S.G. § 5K2.21, may also serve as a basis for increasing Ruth's sentence. The case law on this point suggests that "dismissed conduct must have some relationship with the offense of conviction to permit an upward departure." Montalvo , 467 F. Supp. 3d at 148 (discussing Second Circuit precedent preceding the enactment of § 5K2.21, including United States v. Tropiano , 50 F.3d 157 (2d Cir. 1995) and United States v. Kim , 896 F.2d 678 (2d Cir. 1990), which suggest a departure must be related in some way to the offense of conviction).
Because the government does not argue in its post-hearing briefing that a departure would be appropriate (see Dkt. 204 at 4 ("The Court should hold the defendant accountable for his participation in this homicide by either applying the cross-reference to U.S.S.G. § 2A1.1(a) or considering it pursuant to 18 U.S.C. § 3553(a)")), and the plea agreement does not reference a departure as a basis for any sentencing enhancement, but references only 18 U.S.C. § 3553(a) and the cross-reference to U.S.S.G. § 2A1.1(a), the Court does not consider whether a departure would be appropriate in this instance.

CONCLUSION

For the foregoing reasons, the Court concludes that the government has shown by a preponderance of the evidence that Ruth murdered Henry Ackley on September 21, 2012. However, the government has failed to demonstrate how Ackley's murder is "relevant conduct" pursuant to the Guidelines. Accordingly, U.S.S.G. § 2D1.1(d)(1) and its cross-reference to U.S.S.G. § 2A1.1 do not apply. The probation office is directed to prepare a presentence investigation report without application of U.S.S.G. § 2D1.1(d)(1). A status conference will be scheduled to discuss a sentencing date and further sentencing submissions.

SO ORDERED.