Opinion
1:18-CR-00126 EAW
2020-11-25
UNITED STATES of America, v. Titus THOMPSON, Defendant.
Charles J. Volkert, Joseph M. Tripi, Joshua A. Violanti, Emmanuel O. Ulubiyo, U.S. Attorney's Office, Buffalo, NY, for United States of America. Jason L. Schmidt, Jason L. Schmidt, Esq., Fredonia, NY, for Defendant Titus Thompson. Frank M. Bogulski, Buffalo, NY, for Defendant Deonte Cooper. Cheryl Meyers Buth, Meyers Buth Law Group PLLC, Orchard Park, NY, for Defendant Ricky Turner. Joseph J. Terranova, Elma, NY, for Defendant Argenis Albino Herrera. Michael G. O'Rourke, Buffalo, NY, for Defendant Diones Bowens. Justin D. Ginter, Lipsitz Green Scime Cambria LLP, Buffalo, NY, for Defendant Vicky Hofstetter. R. Thomas Burgasser, North Tonawanda, NY, for Defendant Koree Runyan.
Charles J. Volkert, Joseph M. Tripi, Joshua A. Violanti, Emmanuel O. Ulubiyo, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Jason L. Schmidt, Jason L. Schmidt, Esq., Fredonia, NY, for Defendant Titus Thompson.
Frank M. Bogulski, Buffalo, NY, for Defendant Deonte Cooper.
Cheryl Meyers Buth, Meyers Buth Law Group PLLC, Orchard Park, NY, for Defendant Ricky Turner.
Joseph J. Terranova, Elma, NY, for Defendant Argenis Albino Herrera.
Michael G. O'Rourke, Buffalo, NY, for Defendant Diones Bowens.
Justin D. Ginter, Lipsitz Green Scime Cambria LLP, Buffalo, NY, for Defendant Vicky Hofstetter.
R. Thomas Burgasser, North Tonawanda, NY, for Defendant Koree Runyan.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge I. INTRODUCTION
Defendant Titus Thompson ("Thompson") was convicted after a three-week jury trial of the following counts in the Second Superseding Indictment: conspiracy to commit firearms offenses in violation of 18 U.S.C. § 371 (Count 1); unlawfully dealing in firearms in violation of 18 U.S.C. §§ 922(a)(1)(A), 923(a), and 924(a)(1)(D) (Count 2); felon in possession of firearms and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 3); and using and maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) (Count 4). (Dkt. 334; Dkt. 336; see Dkt. 246). The jury acquitted Thompson of Count 5 charging possession of firearms in furtherance of drug trafficking activities in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Dkt. 334; see Dkt. 246). Sentencing is scheduled for December 15, 2020. (Dkt. 477).
Pending before the Court are Thompson's motions pursuant to Federal Rule of Criminal Procedure 29 for an acquittal (Dkt. 377), or alternatively seeking a new trial pursuant to Federal Rule of Criminal Procedure 33 (Dkt. 376). The government opposes Thompson's motions. (Dkt. 393). For the reasons discussed below, Thompson's motions pursuant to Rules 29 and 33 are denied. In addition, this Decision and Order memorializes in writing the Court's reasons for denying Thompson's speedy trial and severance motion (Dkt. 252), which the Court ruled upon from the bench on February 21, 2020, but indicated it would issue a written decision setting forth its reasoning in further detail (Dkt. 281).
II. RULE 29 MOTION
A. Legal Standard
Rule 29(c)(1) of the Federal Rules of Criminal Procedure provides that "[a] defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict...." The standard on a motion for a judgment of acquittal is stringent, and a defendant claiming that he was convicted based on insufficient evidence "bears a very heavy burden." United States v. Blackwood , 366 F. App'x 207, 209 (2d Cir. 2010) (quoting United States v. Desena , 287 F.3d 170, 177 (2d Cir. 2002) ). "In considering a motion for judgment of acquittal, the court must view the evidence presented in the light most favorable to the government." United States v. Guadagna , 183 F.3d 122, 129 (2d Cir. 1999). Accordingly, "[a]ll permissible inferences must be drawn in the government's favor." Id.
"If any rational trier of fact could have found the essential elements of the crime, the conviction must stand." United States v. Puzzo , 928 F.2d 1356, 1361 (2d Cir. 1991) (quotation omitted). "The test is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt." Id. (quotation omitted). The evidence must be viewed "in its totality, not in isolation," United States v. Huezo , 546 F.3d 174, 178 (2d Cir. 2008) (quotation omitted), "as each fact may gain color from others," Guadagna , 183 F.3d at 130. The Court may enter a judgment of acquittal only if the evidence that the defendant committed the crime is "nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." Id. (quotation omitted).
A district court must be careful not to usurp the role of the jury. " Rule 29(c) does not provide the trial court with an opportunity to ‘substitute its own determination of ... the weight of the evidence and the reasonable inferences to be drawn for that of the jury.’ " Id. at 129 (alteration in original) (quoting United States v. Mariani , 725 F.2d 862, 865 (2d Cir. 1984) ). "A jury's verdict will be sustained if there is substantial evidence, taking the view most favorable to the government, to support it." United States v. Nersesian , 824 F.2d 1294, 1324 (2d Cir. 1987). The government is not required "to preclude every reasonable hypothesis which is consistent with innocence." United States v. Chang An-Lo , 851 F.2d 547, 554 (2d Cir. 1988) (citing United States v. Fiore , 821 F.2d 127, 128 (2d Cir. 1987) ).
B. Analysis
Thompson argues that the evidence is not sufficient to support the jury's verdicts. (Dkt. 377 at 3). In support of that argument, Thompson attacks the credibility of Victoria Orlando ("Orlando") and Robert Williams, Jr. ("Williams"), witnesses who admitted to their involvement in the firearms conspiracy and who testified at trial on behalf of the government. In support of his arguments, Thompson cites to Williams’ and Orlando's background, their history of drug use, the inconsistencies in their testimony, and other similar claims. Thompson made similar arguments to the jury, but they were rejected as evidenced by its verdicts.
Williams testified that some of the guns he purchased in Ohio through straw purchasers were sold on the street, and the rest he sold to Thompson. (Dkt. 347 at 43, 45). Williams explained that he stopped selling the guns on the street because an individual named "Tito" introduced him to Thompson, who became his sole customer. (Id. at 45-47, 55-56). Williams testified that Thompson would front him the money to purchase firearms in Ohio, that Thompson placed orders for specific firearms to be purchased, and that if he ran out of money while in Ohio he contacted Thompson to send him more funds. (Id. at 50-51, 79-80).
Orlando testified that on April 14, 2018, when she went back to Williams’ 116 Reed Street residence in Buffalo from Ohio with firearms, she observed Thompson arrive in a white Cadillac Escalade with about four other men. (Dkt. 317 at 95-96). These men were inspecting the firearms and "basically shopping." (Id. at 96). The men who arrived with Thompson left with the firearms and Thompson stayed behind in the kitchen with Williams where they discussed purchasing more firearms in Ohio. (Id. at 98-102). Williams and Orlando then returned to Ohio, purchased more firearms, and then returned to 116 Reed Street in Buffalo and Thompson came over on April 15, 2018. (Id. at 121-22). Again, two to three other individuals arrived and purchased the firearms. (Id. at 122-23, 126).
In addition to the testimony from Williams and Orlando, evidence was introduced at trial of numerous firearms, drugs, and drug paraphernalia recovered pursuant to a search warrant executed on May 18, 2018, at the upper and lower apartments of 89 Parkridge Avenue, Buffalo, New York—a residence owned by Thompson. Approximately 10 firearms were located in the lower apartment, and two firearms were located in the upper apartment, along with ammunition in both apartments. Also located in the upper apartment were various narcotic packaging materials, a kilo press (located in the attic), and two bags of suspected marijuana. Among the firearms located in the upper apartment was one that was straw purchased by co-defendant Jenna Redding ("Redding") for Williams on May 11, 2018. Among the firearms located in the lower apartment was one that was straw purchased by co-defendant Koree Runyan ("Runyan") for Williams on May 9, 2018, in Ohio. Both Redding and Runyan testified at the trial.
The jury also heard testimony from a number of other witnesses, including Thompson's aunt and uncle, Cynthia and Garfield Nowlin, who lived in the lower apartment at 89 Parkridge Avenue. They paid rent to Thompson for this apartment, and their testimony supported a conclusion that Thompson had access to both the lower and upper apartments, that the firearms located in the lower apartment were stored there without the Nowlins’ knowledge, and that the upper apartment had not been occupied by a tenant for several months before execution of the search warrant.
Perhaps the most incredible testimony offered at trial was from Thompson's brother, Romont, who Thompson called as a witness in an attempt to have him assume all the blame and responsibility for the firearms and other evidence recovered at 89 Parkridge Avenue. Romont claimed that he had been living in the upper apartment, and that the drug packaging material and other paraphernalia was either unknown or for non-drug purposes (including Romont's alleged regular consumption of protein shakes and smoothies).
Overall, the evidence was more than sufficient to convict Thompson. Certain inconsistencies and credibility issues were raised with respect to Williams and Orlando on cross-examination, and defense counsel was given wide latitude to explore those issues. However, in the Court's view those efforts were ultimately unsuccessful in impugning the credibility of the critical parts of the testimony offered by both Williams and Orlando—namely that they were involved in a firearms trafficking conspiracy with Thompson whereby they would acquire firearms for Thompson through straw purchasers in Ohio and then transport those firearms to Thompson in Buffalo.
Deference must be appropriately accorded the jury's resolution of these credibility issues in favor of a guilty verdict. See United States v. Pugh , 945 F.3d 9, 19 (2d Cir. 2019) ("The reviewing court must ‘defer[ ] to the jury's assessment of witness credibility and its assessment of the weight of the evidence.’ " (alteration in original) (quoting United States v. Baker , 899 F.3d 123, 129 (2d Cir. 2018) )); United States v. Riggi , 541 F.3d 94, 108 (2d Cir. 2008) ("All issues of credibility, including the credibility of a cooperating witness, must be resolved in favor of the jury's verdict."); United States v. Glenn , 312 F.3d 58, 64 (2d Cir. 2002) (reviewing court must defer to "the jury's resolution of conflicting testimony" even where it is "pock-marked with inconsistencies"). Furthermore, it was not just one witness who provided testimony supporting Thompson's involvement in this conspiracy, but rather many witnesses provided evidence to support this contention, and the evidence was corroborated by physical evidence seized from 89 Parkridge Avenue.
Accordingly, for all of the foregoing reasons, Thompson's Rule 29 motion is denied. III. RULE 33 MOTION
A. Legal Standard
Rule 33 of the Federal Rules of Criminal Procedure allows a court to vacate a judgment and grant a new trial "if the interest of justice so requires." Fed. R. Crim. P. 33(a). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." United States v. Ferguson , 246 F.3d 129, 134 (2d Cir. 2001). "The defendant bears the burden of proving that he is entitled to a new trial under Rule 33...." United States v. McCourty , 562 F.3d 458, 475 (2d Cir. 2009) ("a district court must find that there is a real concern that an innocent person may have been convicted." (internal quotation and citation omitted)).
The Second Circuit recently reiterated: "While we have held that a district court may grant a new trial if the evidence does not support the verdict, we have emphasized that such action must be done sparingly and in the most extraordinary circumstances." United States v. Archer , 977 F.3d 181, 187 (2d Cir. 2020) (internal quotations omitted). The court clarified that "a district court may not grant a Rule 33 motion based on the weight of the evidence alone unless the evidence preponderates heavily against the verdict to such an extent that it would be ‘manifest injustice’ to let the verdict stand." Id. at 188. The court went on to further explain:
We stress that, under this standard, a district court may not ‘reweigh the evidence and set aside the verdict simply because it feels some other result would be more reasonable.’ To the contrary, absent a situation in which the evidence was ‘patently incredible or defie[d] physical realities,’ or where an evidentiary or instructional error compromised the reliability of the verdict, a district court must ‘defer to the jury's resolution of conflicting evidence.’ And, as it must do under Rule 29, a district court faced with a Rule 33 motion must be careful to consider any reliable trial evidence as a whole, rather than on a piecemeal basis.
Id. at 188-89 (citations omitted) (alteration in original).
B. Analysis
In support of his Rule 33 motion, Thompson focuses on three issues: (1) the credibility of Williams and Orlando; (2) the COVID-19 pandemic; and (3) inconsistencies between Williams’ trial testimony and testimony elicited from other witnesses during a pretrial suppression hearing.
1. Attack on Credibility of Williams and Orlando
Thompson's Rule 33 motion based upon challenges to the credibility of Williams and Orlando is rejected, for the same reasons that the Court rejects these arguments as asserted in support of Thompson's Rule 29 motion. To be sure, there were various inconsistencies in the testimony of Orlando and Williams, and their backgrounds and drug use supported viewing their testimony with caution. But in the Court's view, the essential core of their testimony—that they were involved in a firearms conspiracy to acquire guns in Ohio through straw purchasers and then transport those guns to Thompson in Buffalo—was not only entirely credible, but it was supported by other evidence in the case, including the evidence recovered from the search warrant executed at 89 Parkridge Avenue. Thus, this is not a case where the jury's resolution of conflicting evidence and assessment of witness credibility should be disregarded. Ferguson , 246 F.3d at 133-34 ("[i]t is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment." (alteration in original)). 2. COVID-19 Pandemic
Thompson makes the same arguments as his co-defendant, Deonte Cooper ("Cooper"), about the COVID-19 pandemic, in support of his Rule 33 motion. (Compare Dkt. 376-1 at 36-40 to Dkt. 340 at 3-6). Like Cooper, Thompson never raised any concerns about the pandemic during the trial or the jury's deliberations. For the same reasons that the Court rejected Cooper's arguments in this regard, the Court rejects Thompson's arguments. (See Dkt. 443 at 13-23, which is hereby incorporated into this Decision and Order by reference).
3. Suppression Hearing
Thompson contends that his due process rights were violated because the testimony of Williams at the trial "would have served to refute the entirety of the testimony and the credibility of the witnesses presented at the evidentiary hearing." (Dkt. 376-1 at 2). Thompson's theory appears to be that Williams’ trial testimony contradicted the probable cause determination made by the state court judge in support of the search warrant for 89 Parkridge Avenue. (Id. at 17-18). Thompson contends that Williams testified at trial that he never saw or purchased drugs from Thompson (id. at 20), which was contrary to the testimony provided to the state court judge to support the warrant application. Essentially Thompson contends that the application was made to the state court judge in a misleading manner, and that the applicants should have gone back to the federal magistrate judge who had previously issued the search warrant for Williams’ residence at 116 Reed Street.
As detailed in the Court's Decision and Order filed on January 24, 2020, Thompson filed omnibus pretrial motions on January 18, 2019, which included a motion to suppress physical evidence seized upon execution of a search warrant on or about May 18, 2018, at 89 Parkridge Avenue. (Dkt. 191 at 2). The assigned magistrate judge recommended denying the motion because no affidavit of standing was filed, but with his objections to that recommendation Thompson (represented by new counsel) filed an affidavit. (Id. at 2-3).
This Court reopened the matter and conducted a suppression hearing. The Court concluded based on the hearing testimony of Acting New York State Supreme Court Justice John L. Michalski and Erie County Assistant District Attorney John Gerken that Williams (identified in the Court's Decision and Order as the confidential informant) was presented to Justice Michalski, was placed under oath, and testified that he had a history with Thompson, he had purchased powdered cocaine from Thompson within the past 10 days, he had observed firearms and drugs in the upper apartment within the past 10 days, he described a transaction where Thompson left the upper apartment and retrieved a firearm from the lower apartment, and he was familiar with the vehicle driven by Thompson and a particular type of firearm that was kept in the trunk. (Id. at 14-15). The Court found both Justice Michalski and ADA Gerken credible. (Id. at 14 n.9). Based on its findings, as set forth in more detail in its Decision and Order, the Court concluded that probable cause supported the search of the upper apartment at 89 Parkridge Avenue. (Id. at 13-17). The Court did not reach the issue of probable cause with respect to the lower apartment because it found that Thompson failed to establish standing to challenge that search. (Id. at 9-13).
Williams testified publicly at trial and the circumstances surrounding his involvement in the search warrant application are now part of the public record.
Williams’ trial testimony was not entirely consistent with the testimony as relayed by Justice Michalski and ADA Gerken at the suppression hearing. Although Williams did testify about observing guns and drugs in the upper apartment at 89 Parkridge Avenue, his testimony appeared to be that the only drug he actually acquired from Thompson was K2. (Dkt. 347 at 64-66 (describing an instance when Thompson had a baggie with what appeared be cocaine and K2); 114-16 (describing testimony he gave to Justice Michalski that he had seen narcotics, but not that he obtained narcotics from Thompson)).
Based on these inconsistencies, Thompson contends that he is entitled to a new trial pursuant to Rule 33. This argument fails for several reasons. First, as the government correctly points out (Dkt. 393 at 16) and contrary to Thompson's arguments, evidence that is elicited during trial does not constitute evidence newly discovered after trial justifying the grant of a Rule 33 motion. United States v. O'Brien , No. 13-CR-586 (RRM), 2017 WL 2371159, at *11 (E.D.N.Y. May 31, 2017), aff'd , 926 F.3d 57 (2d Cir. 2019) ; see United States v. Forbes , 790 F.3d 403, 408-09 (2d Cir. 2015) ("We have long held that in order to constitute newly discovered evidence, not only must the defendant show that the evidence was discovered after trial, but he must also demonstrate that the evidence ‘could not with due diligence have been discovered before or during trial.’ " (citation omitted)).
Second, Rule 33 is not the appropriate procedural vehicle to relitigate issues previously decided in a suppression motion. O'Brien , 2017 WL 2371159, at *12 (collecting cases). If, in fact, Thompson had believed that Williams’ testimony justified reopening the suppression hearing, he could have made that application during the trial. Thompson never made any such application—instead, waiting to raise the issue in a Rule 33 motion after his conviction. This is not the proper use of Rule 33.
Third, even if Thompson had moved to reopen the suppression hearing, Williams’ trial testimony would not justify reopening the hearing or granting suppression. "[I]t is within a district court's discretion to reopen a suppression hearing[.]" United States v. Tisdol , 450 F. Supp. 2d 191, 194 (D. Conn. 2006) ; see also United States v. Bayless , 201 F.3d 116, 131 (2d Cir. 2000) ("We conclude that the abuse of discretion standard accurately reflects the degree of deference properly accorded a district court's decisions regarding evidentiary matters and the general conduct of trials[.]"). "[I]t has long been the law in this Circuit that, in order to reopen a suppression hearing on the basis of new evidence, the moving party ... must show that the evidence was unknown to the party, and could not through due diligence reasonably have been discovered by the party, at the time of the original hearing." United States v. Leaver , 358 F. Supp. 2d 273, 279 & n.30 (S.D.N.Y. 2005) (quotation omitted). "[T]he standard for reopening a suppression hearing based on new evidence is as stringent as the standard for reconsideration." United States v. Almonte , No. 14 CR. 86 KPF, 2014 WL 3702598, at *3 (S.D.N.Y. July 24, 2014) ; see also United States v. Oliver , 626 F.2d 254, 260 (2d Cir. 1980) (upholding refusal to reopen a suppression hearing because, among other things, defendant failed to offer "new evidence of material significance"). When the proffered new evidence "do[es] not bear on the core findings of the suppression hearing," a court does not abuse its discretion in declining to reopen the hearing. United States v. Oquendo , 192 F. App'x 77, 81 (2d Cir. 2006) ; see also United States v. Pena Ontiveros , No. 07 Cr. 804(RJS), 2008 WL 2446824, at *4 (S.D.N.Y. June 16, 2008) (holding that "reopening the suppression hearing would be futile" because the new evidence "would not change the Court's previous decision").
The primary purpose of the suppression hearing was for this Court to learn the basis of the probable cause determination by Justice Michalski, because it was not able to decipher his notes summarizing the oral testimony provided by Williams. (See Dkt. 118 at 15-19). The fact that Williams did not recall at trial all the facts related to his testimony that was relayed by Justice Michalski and ADA Gerken does not undermine the probable cause determination. As the Court noted, it found both Justice Michalski and ADA Gerken credible. To the extent there were inconsistencies with Williams’ trial testimony, this would not have impacted the Court's determination on the suppression motion. Among the witnesses, this Court would have credited Justice Michalski's and ADA Gerken's recollection of the events over Williams’ testimony. While Williams testified at trial that he recalled his testimony before Justice Michalski (Dkt. 347 at 115), he also testified that his "memory is kind of in and out" (id. at 67), and that at the time he was arrested he was high (id. at 115) and he was using K2 on a daily basis (id. at 99).
Moreover, by no means did Williams’ trial testimony undermine a finding of probable cause to search the upper apartment at 89 Parkridge Avenue—in fact, his testimony supported the notion that there were both drugs and guns in the apartment. Indeed, Williams’ trial testimony supported a finding that the upper apartment at 89 Parkridge Avenue was one of the locations used as part of the firearms trafficking conspiracy. Thompson takes issue with the discrepancies about the extent of Thompson's drug dealing—when Justice Michalski's and ADA's Gerken's suppression hearing testimony is compared to Williams’ trial testimony—but again, this Court credits the testimony elicited at the suppression hearing, and Williams’ trial testimony would have had no impact on the Court's resolution of the suppression motion.
IV. COURT'S PRIOR ORAL RULINGS
A. Thompson's Speedy Trial Argument
Thompson argued that the Speedy Trial Act, 18 U.S.C. § 3161 et seq. , was violated because on September 25, 2019, the Court requested that the government report back on the status of the speedy trial clock and the government never provided a report. (Dkt. 252 at 1). However, Thompson failed to elaborate on his theory as to how the speedy trial clock expired. (Id. ). The government submitted a memorandum in opposition, arguing that no violation of the Speedy Trial Act occurred. (Dkt. 265 at 2-3).
As the Court previously ruled from the bench on February 21, 2020, there is no merit to Thompson's speedy trial claims. A criminal complaint was filed against Thompson on May 18, 2018, and he initially appeared pursuant to an arrest warrant on May 22, 2018. (Dkt. 1; 5/22/2018 Minute Entry). Within 30 days, see 18 U.S.C. § 3161(b) (requiring indictment to be filed within 30 days of arrest), an Indictment was returned by a federal grand jury (Dkt. 2). Thompson was arraigned on June 21, 2018, and an interest of justice exclusion was entered through August 10, 2018, pursuant to 18 U.S.C. § 3161(h)(7)(A) and (B)(iv). (6/21/2018 Minute Entry; Dkt. 7). Thompson filed omnibus motions on August 10, 2018 (Dkt. 8), automatically stopping the speedy trial clock pursuant to 18 U.S.C. § 3161(h)(1)(D). Those non-dispositive motions were resolved by the assigned magistrate judge during an appearance on August 31, 2018, at which point the clock began to run. (8/31/2018 Minute Entry; see Dkt. 10). On September 5, 2018, the government filed a motion to set a trial date. (Dkt. 11). Six days later, on September 11, 2018, the Court scheduled a trial to commence on October 29, 2018, and as noted in the minute entry, the speedy trial clock was running. (Dkt. 14). On October 4, 2018, Thompson filed a motion to be released from custody. (Dkt. 25). The Court issued a Text Order setting a deadline for the government to respond to that motion and indicating that it would be addressed at the appearance scheduled for October 11, 2018 (Dkt. 26); however, a Superseding Indictment was returned on October 11, 2018, adding nine more defendants (Dkt. 31). The next day, the government filed a motion to adjourn the trial (Dkt. 33), and that same day the Court granted that motion and also denied Thompson's motion to be released without prejudice (Dkt. 34). Thompson was arraigned on the Superseding Indictment on October 17, 2018, and most of the rest of the defendants were arraigned on October 24, 2018, at which time the assigned magistrate judge set a scheduling order and issued an interest of justice exclusion pursuant to 18 U.S.C. § 3161(h)(7)(A) and (B)(iv) through December 14, 2018. (10/24/2018 Minute Entry; Dkt. 39). Since then, the speedy trial clock was stopped until the start of the trial in this matter, either through interest of justice exclusions or the filing of motions. (See , e.g. , Dkt. 49 (Order excluding time in interest of justice from December 11, 2018, through January 18, 2019); Dkt. 66 (Order excluding time in interest of justice from January 18, 2019, through February 15, 2019); Dkt. 64 (Thompson's omnibus pretrial motions filed January 18, 2019, which were ultimately resolved by a Decision and Order filed January 24, 2020 (Dkt. 191)); Dkt. 124 (Pretrial Order entered September 27, 2019, setting trial date of February 24, 2020, and excluding time through that date in interest of justice)).
The law is not settled on whether a motion to set a trial date automatically stops the speedy trial clock. See United States v. Love , No. 10-CR-6116L, 2012 WL 4503162, at *1-2 (W.D.N.Y. Sept. 28, 2012) (discussing case law from other circuits, the majority of which supports the notion that such a motion stops the clock, but noting that "neither the Supreme Court nor the Second Circuit has ruled definitively upon the question"), aff'd in part, appeal dismissed in part sub nom. United States v. Holley , 813 F.3d 117, 122 (2d Cir. 2016) (declining to reach the issue). The Court need not resolve that issue because even if the motion did not stop the clock, the speedy trial clock did not expire.
The day prior the government filed a motion for a protective order (Dkt. 17), but since the Court granted that motion the same day it was filed (Dkt. 22), the filing of that motion arguably did not impact the speedy trial clock.
Thus, at best for Thompson, the clock was stopped after his arraignment on the initial Indictment until August 31, 2018, at which time it started to run until October 4, 2018, when Thompson filed his bail motion. Thus, a total of 34 days ran on the clock. While that bail motion was pending, a Superseding Indictment adding more defendants was returned on October 11, 2018. See United States v. Piteo , 726 F.2d 50, 52 (2d Cir. 1983) ("in cases involving multiple defendants only one speedy trial clock, beginning on the date of the commencement of the speedy trial clock of the most recently added defendant, need be calculated," and "a delay attributable to any one defendant is chargeable only to the single controlling clock."); see also United States v. Gonzalez , 399 F. App'x 641, 644 (2d Cir. 2010) ("The Speedy Trial Act ‘imposes a unitary time clock on all co-defendants joined for trial.’ The unitary clock begins with the running of the clock for the most recently added defendant.") (citing United States v. Vasquez , 918 F.2d 329, 337 (2d Cir. 1990) and United States v. Gambino , 59 F.3d 353, 362 (2d Cir. 1995) ).
Since the arraignment of the new defendants on the Superseding Indictment on October 24, 2018, the speedy trial clock was stopped through the trial date through interest of justice exclusions and/or because of pending motions. As a result, under no reasonable view of the facts could one conclude that more than 70 days of nonexcludable time elapsed from the speedy trial clock.
B. Thompson's Motion for Severance from his Co-Defendants and Severance of Counts
On February 14, 2020, less than two weeks before the trial was scheduled to start, Thompson filed a motion seeking severance from his co-defendants (Dkt. 252 at 1-4), which as a practical matter meant Cooper, who was scheduled to proceed to trial with Thompson commencing on February 24, 2020. Thompson also sought to sever Counts 1, 2 and 3, from Counts 4 and 5—labeling the latter the "drug" counts and arguing that they were not of the same or similar character as the "firearms" counts. (Id. at 5). The government opposed Thompson's requests for severance. (Dkt. 265 at 4-8).
As an initial matter, Thompson's motion was untimely and filed long after the deadline set for the filing of pretrial motions. (See Dkt. 49). Nonetheless, the Court did not deny it on timeliness grounds, but rather addressed the merits, and as indicated from the bench on February 21, 2020, the motion was denied. (Dkt. 281). The Court explains its reasoning below.
1. Severance from Cooper Not Warranted
Federal Rule of Criminal Procedure 8(b) provides for joinder of defendants "if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed. R. Crim. P. 8(b) ("The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count."). Here, Thompson and Cooper were joined together as alleged co-conspirators engaged in the firearms conspiracy charged in Count 1 of the Second Superseding Indictment. See United States v. Nerlinger , 862 F.2d 967, 973 (2d Cir. 1988) (It is an "established rule ... that a non-frivolous conspiracy charge is sufficient to support joinder of defendants under Fed. R. Crim. P. 8(b)."). Thompson did not argue that he was improperly joined with Cooper on Count 1; rather, he sought a severance pursuant to Fed. R. Crim. P. 14.
Rule 14, which provides that "[i]f the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires." Fed. R. Crim. P. 14(a). The decision to sever a trial pursuant to Rule 14 is "confided to the sound discretion of the trial court." United States v. Feyrer , 333 F.3d 110, 114 (2d Cir. 2003). A trial court's decision concerning severance is considered "virtually unreviewable," and the denial of such a motion "will not be reversed unless appellants establish that the trial court abused its discretion." United States v. Cardascia , 951 F.2d 474, 482 (2d Cir. 1991) (citation omitted). In order to successfully challenge the denial of a request for severance, a defendant "must establish prejudice so great as to deny him a fair trial." Id.
The party requesting severance must demonstrate substantial prejudice: "When defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." United States v. Astra Motor Cars , 352 F. Supp. 2d 367, 369-70 (E.D.N.Y. 2005) (alteration omitted and quoting Zafiro v. United States , 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) ); see also Cardascia , 951 F.2d at 482 (in order to successfully challenge the denial of a request for severance, a defendant "must establish prejudice so great as to deny him a fair trial"); United States v. Friedman , 854 F.2d 535, 563 (2d Cir. 1988) ("[T]he defendant must show that he or she suffered prejudice so substantial as to amount to a ‘miscarriage of justice.’ "). "[D]iffering levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials." Chang An-Lo , 851 F.2d at 557 (citation omitted). "That the defendant would have had a better chance of acquittal at a separate trial does not constitute substantial prejudice." United States v. Carson , 702 F.2d 351, 366 (2d Cir. 1983).
There is a powerful presumption in favor of joint trials of defendants indicted together based upon the underlying policies of efficiency, avoiding inconsistent verdicts, providing a "more accurate assessment of relative culpability," avoiding victims and witnesses having to testify repeatedly, and avoiding the random favoring of "the last-tried defendants who have the advantage of knowing the prosecutor's case beforehand." Richardson v. Marsh , 481 U.S. 200, 210, 219 n.7, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (citation omitted); see also Cardascia , 951 F.2d at 482 ("The deference given by an appellate court to a trial court's severance decision reflects the policy favoring joinder of trials, especially when the underlying crime involves a common plan or scheme and defendants have been jointly indicted."). The Second Circuit has instructed that "[c]onsiderations of efficiency and consistency militate in favor of trying jointly defendants who were indicted together," and "[j]oint trials are often particularly appropriate in circumstances where the defendants are charged with participating in the same criminal conspiracy...." United States v. Spinelli , 352 F.3d 48, 55 (2d Cir. 2003) (citations omitted); see also United States v. Van Sichem , No. SS 89 CR. 813 (KMW), 1990 WL 41746, at *1 (S.D.N.Y. Apr. 2, 1990) ("There is a strong presumption in favor of joint trials for jointly indicted defendants, particularly where, as here, the ‘crimes charged involve a common scheme or plan.’ ") (alteration omitted and quoting United States v. Girard , 601 F.2d 69, 72 (2d Cir. 1979) ). Indeed, "[j]oint trials serve the interests of the government, the accused, and the public by eliminating the additional expense and repetition associated with successive prosecutions." Id. (citing United States v. McGrath , 558 F.2d 1102, 1106 (2d Cir. 1977) and United States v. Lyles , 593 F.2d 182, 191 (2d Cir. 1979) ).
In support of his motion to sever, Thompson cited to the possibility that the government "may be offering into evidence statements which fall within the hearsay exceptions set forth in Fed. R. Evid. 801(d)(2)." (Dkt. 252 at 2). Thompson also made unspecified arguments that evidence under Federal Rule of Evidence of 404(b) would be more likely to come in against him during a joint trial. (Id. at 3). Of course, in a conspiracy trial, any co-conspirator statements may be admissible against all defendants. See , e.g. , Fed. R. Evid. 801(d)(2)(E). To the extent that evidence would be admissible with respect to only Cooper, Thompson could request a limiting instruction to cure any issues in that regard, Zafiro , 506 U.S. at 539, 113 S.Ct. 933 ("When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but, ... less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice."), and Thompson's unspecified and vague claims in this regard were not sufficient to justify a severance.
Thompson also argued that a joint trial would jeopardize his right to remain silent, relying on De Luna v. United States , 308 F.2d 140 (5th Cir. 1962), which in dicta suggested that a co-defendant could comment on another defendant's failure to testify at trial. This Court made clear that no such comment would be permitted, notwithstanding this dicta from almost 60 years ago by the Fifth Circuit. Indeed, the " DeLuna rationale ... has been rejected by virtually every other circuit that has considered it." United States v. Pirro , 76 F. Supp. 2d 478, 487 (S.D.N.Y. 1999) ; see also United States v. Caci , 401 F.2d 664, 672 (2d Cir. 1968) (suggesting De Luna should be read narrowly).
Accordingly, Thompson's request for severance of his trial from Cooper's trial was denied.
2. Severance of Counts Not Warranted
Thompson also sought severance of certain counts pursuant to Federal Rules of Criminal Procedure 8(a) and 14. (Dkt. 252 at 5). As an initial matter, Second Circuit "cases indicate that when a defendant in a multiple-defendant case challenges joinder of offenses, his motion is made under 8(b) rather than 8(a)." United States v. Turoff , 853 F.2d 1037, 1043 (2d Cir. 1988) (internal quotations and citation omitted). This means that the acts alleged in the separate counts "must be ‘unified by some substantial identity of facts or participants,’ or ‘arise out of a common plan or scheme.’ " United States v. Attanasio , 870 F.2d 809, 815 (2d Cir. 1989). However, "while not settling the question, the Second Circuit has signaled that ‘Rule 8(a) standards apply to a defendant in a multi-defendant trial who seeks severance of counts in which he is the only defendant charged.’ " United States v. Pizarro , No. 17-CR-151 (AJN), 2018 WL 1737236, at *3 (S.D.N.Y. Apr. 10, 2018) (quoting United States v. Biaggi , 909 F.2d 662, 676 (2d Cir. 1990) ). Unlike Rule 8(b), Rule 8(a) joinder is allowed if the offenses are of a same or similar character. Turoff , 853 F.2d at 1042. Thompson appears to accept the premise that Rule 8(a) is the applicable standard, seeking severance of the counts on the basis of Rule 8(a) and not Rule 8(b). However, under either standard, it is apparent that joinder of all counts with which Thompson was charged was appropriate.
Just as firearms possession is admissible in a narcotics trial, the joinder of firearms and narcotics counts based upon evidence discovered during the scope of a single search is appropriate. United States v. Page , 657 F.3d 126, 130 (2d Cir. 2011) (sufficient logical connection between narcotics and felon in possession firearm count so as to justify joinder and denial of severance where evidence was found as part of the same search); see also United States v. Feola , 651 F. Supp. 1068, 1121 (S.D.N.Y. 1987), aff'd , 875 F.2d 857 (2d Cir. 1989) (citing United States v. Wiener , 534 F.2d 15, 18 (2d Cir. 1976), cert. denied , 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976) ). That is exactly what was done here, with the joinder of Counts 1 through 5, all of which were based, at least in part, on the firearms and narcotics-related evidence recovered during execution of the search warrant at 89 Parkridge Avenue on May 18, 2018. Counts 3, 4 and 5 all alleged illegal conduct on the date of execution of that search warrant—May 18, 2018—and Counts 1 and 2 covered a broader time frame that included May 2018. (Dkt. 246). Thompson was alleged to have participated in a firearms conspiracy that trafficked firearms from Ohio to Buffalo and to personally have illegally trafficked those firearms (Counts 1 and 2); he was alleged to have possessed those firearms as a prohibited person (Count 3); and he was alleged to have possessed some of those firearms at 89 Parkridge Avenue which he also used for drug trafficking (Counts 4 and 5).
The Court did bifurcate Count 3 so that the jury did not hear evidence of Thompson's prior criminal record or deliberate on that count until after reaching a verdict on the other counts. See Page , 657 F.3d at 132 ("Nothing in this opinion should be taken to be a denunciation of the practice of bifurcating a felon-in-possession charge from other charges in a single multi-charge trial where doing so would better protect the defendant from prejudice than a limiting instruction, and the district court determines that a limiting instruction cannot adequately protect the defendant from substantial prejudice and bifurcating the trial of that charge would provide such protection.").
Thompson argued in a conclusory manner that he "may" present separate defenses on the various charges (Dkt. 252 at 5), but this was plainly insufficient to meet the "convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other." United States v. Krug , 198 F. Supp. 3d 235, 250 (W.D.N.Y. 2016) (quoting United States v. Sampson , 385 F.3d 183, 191 (2d Cir. 2004) ).
Moreover, the evidence with respect to all of the charges against Thompson overlapped, including the evidence seized upon execution of the search warrant at 89 Parkridge Avenue, the testimony of law enforcement concerning that search, and the testimony of witnesses concerning Thompson's access to and use of 89 Parkridge Avenue. Indeed, the firearms and narcotics were necessarily intertwined by virtue of the charge in Count 5 that Thompson possessed firearms in furtherance of his drug trafficking activities (a count that the jury acquitted him on).
Accordingly, joinder of the counts was proper and Thompson's request to sever the counts was denied.
V. CONCLUSION
For the foregoing reasons, Thompson's motions pursuant to Rule 29 (Dkt. 377) and Rule 33 (Dkt. 376) are denied. Moreover, as previously stated on the record, and for the reasons articulated in further detail above, Thompson's speedy trial motion and severance motion (Dkt. 252) are denied.
SO ORDERED.