USA v. Eldridge et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
1-09-CR-329
v. 	DECISION AND ORDER
THAMUD ELDRIDGE, et al.,
Defendants.
INTRODUCTION
Defendant Thamud Eldridge and defendant Kevin Allen have moved to vacate their
convictions and for a new trial. (Dkt. Nos. 682 and 695, 704) For the following reasons,
Eldridge and Allen’s motions are denied in their entirety.
BACKGROUND AND RELEVANT FACTS
In this case, the Government contended that Eldridge and Allen were members of
a criminal organization that engaged in the distribution of cocaine, cocaine base,
marijuana, and heroin and also committed acts of violence in furtherance of their drug
trafficking enterprise, including murder, robbery and extortion. 	It was alleged that
defendants and others targeted and robbed drug dealers of money and controlled
substances, and that they used firearms, extortion and violence to expand their territory
and power. 	In addition to various racketeering, narcotics, and weapons crimes, the
Government alleged that Eldridge and Allen kidnapped and robbed Woodie Johnson, a
cocaine dealer, in February of 2005 and robbed and murdered Sam Jones, also a cocaine
dealer, in April of 2005. The Government also alleged that, in a separate incident in April
of 2005, Eldridge robbed and murdered Thedrus Laster, a marijuana dealer.
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Indictment
On June 20, 2012, defendants Eldridge and Allen were charged, in a Superseding
Indictment (“Indictment”), with racketeering (Count 1, in violation of 18 U.S.C. §1962(c));
racketeering 	conspiracy 	(Count 	2, 	in 	violation 	of 	18 	U.S.C. 	§1962(d)); 	narcotics
conspiracy (Count 3, in violation of 21 U.S.C. §846); possession of firearms in furtherance
of drug trafficking (Count 4, in violation of 18 U.S.C. §§924(c)(1) and (2)); kidnapping in
aid of racketeering (Count 5, in violation of 18 U.S.C. §§1959(a)(1) and (2)); Hobbs Act
robbery (Count 6, in violation of 18 U.S.C. §§1951 and 2), and possess and brandish of
a 	firearm 	in 	furtherance 	of 	violent 	crime 	(Count 	7, 	in 	violation 	of 	18 	U.S.C.
§§924(c)(1)(A)(ii) and 2). (Dkt. No. 164) Counts 5, 6 and 7 related to the kidnapping and
armed robbery of Johnson. 	Defendant Galen Rose was charged with possession with
intent to distribute marijuana (Count 8, in violation of 21 U.S.C. §841(a)(1)) and
conspiracy to distribute marijuana (Count 9, in violation of 21 U.S.C. §846). Id. Eldridge
was charged in Count 10 (murder in aid of racketeering, in violation of 18 U.S.C.
§§1959(a)(1) and 2), Count 11 (Hobbs Act robbery, in violation of 18 U.S.C. §§1951 and
2), 	and 	Count 	12 	(discharge 	of 	firearm 	causing 	death, 	in 	violation 	of 	18 	USC
§§§924(c)(1)(A)(iii), 924(j)(1) and 2), relating to the robbery and death of Laster on April
3, 2005. 	Id. 	Rose was also charged in Count 11 (Hobbs Act robbery) and Count 12
(discharge of a firearm causing death), related to the robbery and death of Laster. 	Id.
Eldridge and Allen were charged in Count 13 (murder in aid of racketeering), Count 14
(Hobbs Act robbery), and Count 15 (discharge of firearm causing death), relating to the
robbery and death of Jones on April 6, 2005. Id.
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Kashika Speed, a fourth defendant, was also charged in a number of counts
including racketeering, racketeering conspiracy, narcotics conspiracy, possession of
firearms in furtherance of drug trafficking, as well as the counts related to the kidnapping
and robbery of Johnson, the robbery and murder of Laster, and the conspiracy to rob
Jones. 	Speed entered into a plea agreement with the Government on June 16, 2014.
On October 2, 2014, Speed was sentenced by the Court to a period of incarceration of
192 months.
Eldridge was further charged in Count 16 (possession and discharge of a firearm
in furtherance of drug trafficking, in violation of 18 U.S.C. §§924(c)(1)(A)(iii) and 2) and
Count 17 (felon in possession of firearm, in violation of 18 U.S.C. §§§922(g)(1), 924(a)(2)
and 2). 	(Dkt. No. 164) 	On January 7, 2016, the Court issued a Decision and Order
severing Counts 16 and 17 from the rest of Indictment. (Dkt. No. 530)
Trial and Jury Verdict
On January 6, 2016, a jury trial commenced as to defendants Eldridge, Allen and
Rose on Counts 1 through 15 of the Indictment. Following a five and one-half week trial,
the jury found Eldridge guilty of racketeering (Count 1). 	(Dkt. No. 617) With respect to
the racketeering act findings, the jury found that Eldridge conspired to distribute controlled
substances, attempted to commit a robbery at 87 Girard Street, kidnapped and robbed
Johnson on February 23, 2005, and possessed cocaine with intent to distribute on
February 23, 2005. 	Id. 	The jury found Eldridge not guilty as to the racketeering acts
involving the robbery of Larry Kemp and the intentional murder of Laster. The jury was
unable to reach a verdict as to the racketeering acts which involved the robbery of Laster
and the causing of his death in the course of the robbery. Id. The jury was also unable
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to reach a verdict as to any of the racketeering acts which involved the robbery and
murder of Jones. Id. The jury found Eldridge guilty of racketeering conspiracy (Count 2),
narcotics conspiracy (Count 3), possession of firearms in furtherance of drug trafficking
(Count 4), and the kidnapping and robbery of Johnson at gunpoint (Counts 5, 6 and 7).
Id. The jury found Eldridge not guilty of murder in aid of racketeering as to Thedrus Laster
(Count 10). Also as to Eldridge, the jury was unable to reach a verdict on the robbery of
Laster and the use of a firearm causing his death (Counts 11 and 12), and was unable to
reach a verdict as to the murder and robbery of Jones as well as the use of a firearm
causing his death (Counts 13, 14 and 15). Id. The jury found Allen guilty of racketeering
(Count 1). 	Id. 	With respect to the racketeering act findings, the jury found that Allen
conspired to distribute controlled substances, and that he conspired to rob Johnson on
February 23, 2005. 	Id. 	The jury found that Allen did not commit the robbery of Larry
Kemp, and was unable to reach a verdict as to whether Allen kidnapped Johnson and
possessed cocaine with intent to distribute on February 23, 2005. Id. The jury was also
unable to reach a verdict as to whether Allen committed the racketeering acts involving
the robbery and murder of Sam Jones. 	Id. 	The jury found Allen guilty of racketeering
conspiracy (Count 2), narcotics conspiracy (Count 3), and possession of firearms in
furtherance of drug trafficking (Count 4). The jury found Allen guilty of conspiring to rob
Woodie Johnson (Count 6), but was unable to reach a verdict as to whether Allen
kidnapped Johnson in aid of racketeering and used a firearm to rob and kidnap Johnson
(Counts 5 and 7). Also with respect to Allen, the jury was unable to reach a verdict as to
the murder and robbery of Jones as well as the use of a firearm causing his death (Counts
13, 14 and 15). 	The jury found Rose guilty of possession with intent to distribute
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marijuana (Count 8) and conspiracy to possess with intent to distribute marijuana (Count
9). 	The jury was unable to reach a verdict as to whether Rose robbed Laster or
discharged a firearm causing his death (Counts 11 and 12).1
Following the verdict, motions were filed by both the Government and defense
counsel regarding whether retrial of Eldridge and Allen on the hung counts should be
deferred until there was a resolution of the appeal of the counts of conviction, when the
Court should try the severed counts (Counts 16 and 17) as to Eldridge, and whether the
severed counts should be tried together with the hung counts. 	Also during that time,
Eldridge’s trial counsel filed a motion to withdraw from the case. The Court granted the
motion to withdraw, appointed new counsel for Eldridge and provided counsel time to
familiarize himself with the record. On October 4, 2016, the Court issued a Decision and
Order declaring a mistrial as to the hung counts and granting the Government’s request
to defer a trial of the hung counts until the counts of conviction were resolved through
post-trial motions and any subsequent appeals. (Dkt. No. 677) The Court also granted
Eldridge’s request to adjourn the trial of the severed counts pending the outcome of any
post-trial motions. Id. The Court reasoned, in part, that combining a potential trial of the
hung and severed counts until after the conclusion of the appeal of the counts of
conviction would benefit judicial economy and Eldridge, in that he would only face one
potential trial as opposed to two and the Government, depending on the outcome of the
appeal, may decide not to pursue all of the remaining counts against him. Id.
1 On June 29, 2016, the Government and Rose entered into a Stipulation whereby Rose agreed to waive
his right to appeal his convictions as to Counts 8 and 9, and that the relevant conduct proven at trial
established the basis for an aggregate sentence of 10 years as to those counts. (Dkt. No. 645) The
parties agreed to waive their right to appeal a sentence of 120 months on Counts 8 and 9 and the
Government agreed to dismiss Count 11 with prejudice and Count 12 without prejudice. Id. On October
6, 2016, Rose was sentenced to a term of 120 months incarceration.
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Allen filed a motion to vacate his counts of conviction and for a new trial pursuant
to Rules 29 and 33 of the Federal Rules of Criminal Procedure on January 17, 2017.
(Dkt. No. 682) 	Eldridge filed a motion to vacate his counts of conviction and for a new
trial pursuant to the same on March 3, 2017, and filed a supplemental affidavit in support
of his motion on April 4, 2017. (Dkt. No. 695, 704) The Government filed responses to
both motions. (Dkt. Nos. 690 and 703) The Court heard oral argument as to defendants’
motions on July 28, 2017, at which time the Court considered the matter submitted.
DISCUSSION
Rule 29
Pursuant to Federal Rule of Criminal Procedure 29(a), a district court shall enter a
judgment of acquittal as to “any offense for which the evidence is insufficient to sustain a
conviction.” 	See Fed. R. Crim. P. 29(a). 	A motion for a judgment of acquittal may be
granted after the evidence on either side is closed if the evidence is insufficient to sustain
a conviction for the crime charged. See Fed. R. Crim. P. 29(a). The Supreme Court has
instructed that the standard, under Rule 29, is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v. Castelin,
597 Fed. Appx. 22 (2d Cir. 2015); accord Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The Court must resolve all inferences in favor of the prosecution, and must view the proof
in the light most favorable to the government. 	See United States v. Puzzo, 928 F.2d
1356, 1361 (2d Cir. 1991). A defendant challenging the sufficiency of the evidence “bears
a heavy burden.” United States v. Griffin, 284 F.3d 338, 348 (2d Cir. 2002). To that end,
in resolving a Rule 29 motion, a court must not assess witness credibility, resolve
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inconsistent testimony against the verdict, or otherwise weigh the significance of the
evidence. 	See United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000). 	See also
United States v. Cote, 544 F.3d 88, 93 (2d Cir. 2008) (a court should not grant a Rule 29
motion by rejecting government evidence as not credible); United States v. Bala, 236 F.3d
87, 93-94 (2d Cir. 2000) (a court must “defer to the jury’s assessment of witness credibility
and the jury’s resolution of conflicting testimony”).
Defendant Allen: Robbery of Woodie Johnson
Allen argues that there was insufficient evidence to convict him of conspiring to rob
Woodie Johnson on February 23, 2005 and therefore the Court should enter a judgment
of acquittal as to Count 1 (racketeering), Count 2 (racketeering conspiracy) and Count 6
(Hobbs Act robbery).2 Allen contends that the testimony of Steve Martin, a witness to the
planning of the robbery, and Johnson, the victim of the robbery, was wholly inconsistent
and could not be reconciled by a rational trier of fact, and that Martin was not a credible
witness. 	Allen further argues that since the jury hung on whether he actually robbed
Johnson (Counts 5 and 7), the testimony of Martin was insufficient to convict him of
conspiring to rob Johnson. Contrary to defendant’s contentions, the Court finds sufficient
evidence to sustain the conviction for conspiracy to rob Johnson.
During the trial, Martin testified that he was involved in drug dealing on Montana
Street in the City of Buffalo from the time he was 14 years old. 	(Dkt. No. 594, pg. 9)
Martin testified that he was a member of the Montana Bridge Gang from the mid 1990’s
through the early 2000’s and various times after that when he was not incarcerated. (Id.
2 Allen contends that because he was only found guilty of the racketeering acts of narcotics conspiracy
and conspiracy to rob Johnson (Hobbs Act robbery), an acquittal as to the Hobbs Act robbery would leave
him with a judgment of guilty as to only one racketeering act as opposed to two, and would necessitate
his acquittal as to the racketeering and racketeering conspiracy counts.
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at 10) 	He testified that he and other gang members would sell heroin and crack, and
commit burglaries and robberies. 	(Id.) 	Martin testified that he and Allen were close
friends, that they lived in the same neighborhood and that they have known each other
since the 1980’s. (Id. at 11, 12-13) He testified that Allen and Kashika Speed, Eldridge’s
cousin, were members of the Montana Bridge Gang. (Id. at 16) Martin testified that, from
the 90’s through 2005, he saw Allen sell bundles of heroin and possess firearms while
selling drugs. 	(Id. at 16, 29) 	Martin testified that when he and Allen were incarcerated
together at Gouvernor Correctional Facility, they talked about robbing Johnson and other
drug dealers. (Id. at pg. 34) He testified that Allen told him that he knew where Johnson
lived and that Johnson was “a pretty big guy in the drug game.” (Id. at 39) Martin testified
that he and Allen spoke about robbing Johnson quite a few times and that Allen told him
“he needed a team”. (Id. at 39, 41)
Martin further testified that after he and Allen were released from prison, they
would meet at the Island Store on the corner of Montana Street and Genesee Street in
the city of Buffalo and discuss robberies. (Id. at 46) Allen told Martin that “the robberies
was on and he was doing a lot of robberies”, and that Martin should get involved with him.
(Id.) Martin further testified that Allen informed him that he was participating in robberies
with Eldridge and Speed. (Id. at 53) Martin testified that there came a time when he met
with Eldridge, Allen and Speed in the basement of Leo Jones’ home on Newburgh Street
in Buffalo. (Id. at 56-58) They spent an hour talking about robbing drug dealers, including
Johnson. (Id. at 58-59) Martin testified that between January and May of 2005, he met
with Allen, Speed and Eldridge in the Newburgh Street home approximately 12 times,
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and that robbing drug dealers, specifically Johnson and Sam Jones, Jr., was discussed
during every meeting. (Id. at 64-65)
Martin testified that on February 23, 2005, Allen drove him over to the Newburgh
Street home at approximately 5:30 p.m., and told him that tonight they were going to rob
Johnson. (Id. at 73-74) Once there, Martin met with Allen, Speed, Eldridge and another
drug dealer from the neighborhood. (Id.) Martin testified that Allen, who was “doing the
talking”, indicated that they would rob Johnson that evening. 	(Id. at 76-77). 	Martin
testified that both Eldridge and Allen had guns, and that Allen stated they would go to
Johnson’s home on Kensington Avenue, wait for him to arrive, and rob him. (Id.) Martin
testified that because he was on parole and had a curfew, he then went home to check
in. (Id.) He intended to return around 11:00 p.m. to participate in the robbery. (Id.) Martin
testified that after checking in with his parole officer, he went to Montana Street to sell
drugs. 	(Id. at 78) 	He later returned to the house on Newburgh Street to “check on the
robbery”. (Id. at 78) However, no one answered the door. (Id.) Martin testified that Allen
came to his house the next day and told him that he missed the robbery. 	(Id. at 78-79)
Allen told him that they went to Johnson’s home on Kensington Avenue, that Johnson
was outside with this dog, and that they “threw [Johnson] in his truck”. (Id. at 80) Allen
told Martin that Johnson made a phone call and told someone to put two kilograms of
cocaine and $30,000 on a porch, which they took. (Id.) He stated that Eldridge kept one
kilogram of cocaine and that he and Speed split the other kilogram. (Id.) 	Martin stated
that Allen bought shoes for Martin’s son for his birthday, and that he gave Martin some
money. (Id. at 80-81)
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During cross-examination Martin was asked to confirm the date of the Johnson
robbery and Martin stated that he did not remember the date or time. Dkt. No. 595, pg.
20. Martin was asked if there was a reason that he recalled that Allen came over the very
next day, February 24, 2005, and Martin answered no. 	(Id. at 20-21) 	Defense counsel
then asked Martin if he told the grand jury that the reason he remembered that Martin
visited the next day was because it was his son’s birthday. 	Id. 	However, his son’s
birthday was not was not until March 6, while the day after the robbery was February 24,
2005. Id.
Woodie Johnson testified that in 2004 and 2005 he was selling drugs and that he
had the ability to obtain kilograms of cocaine. 	Dkt. No. 597, 9-10. 	Also at that time
Johnson was working in the linen department at Millard Fillmore Hospital from 6:00 a.m.
to 2:30 p.m. (Id. at 16) 	Johnson testified that upon completion of his shift at 2:30 p.m.,
he would engage in drug trafficking. 	Id. 	He testified that, at that time, he was living on
Kensington Avenue in Buffalo. 	(Id. at 17) 	Johnson testified that on February 23, 2005,
he left his job at Millard Fillmore at 2:30 p.m., at which time he received a call to pick up
his dog from the veterinarian before 5 p.m. 	(Id.) 	He also received a call indicating that
Randy Jarrett wanted to purchase two kilograms of cocaine from him. (Id. at 27) Johnson
testified that he picked up his dog and then proceeded to his home on Kensington to pick
up the cocaine, which he had stored in one of his cars. 	(Id. at 28-30) 	Johnson then
traveled to Jarrett’s house to drop off the cocaine, which was about ten minutes away.
(Id. at 28-30) Johnson testified that he returned to his home and brought his dog inside,
and that he saw footprints outside of his back window. 	(Id. at 35) 	He went outside to
investigate because he was concerned that someone had broken into his garage. 	(Id.)
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Johnson went to look in his garage window, and someone came up from behind him and
told him not to move. 	(Id. at 27) 	Johnson then went on to testify about the kidnapping
and robbery, and identified Allen as one of his abductors. (Id. at 42-58)
Allen argues principally that Martin and Johnson’s testimony about the timeline of
the robbery cannot be reconciled, since according to Johnson the robbery occurred in the
late afternoon, while Martin testified that the planning occurred in the late afternoon while
the robbery happened later that evening. 	It is clear from the testimony that Martin was
not present for the actual robbery. Indeed, Martin testified only that the planning occurred
around 5:30 p.m., and that the robbery was anticipated to happen later that evening. He
never identified a time that the robbery actually occurred. 	Johnson testified that the
robbery happened after he left work at 2:30 p.m., picked up his dog at the veterinarian,
picked up two kilograms of cocaine, dropped the cocaine at Jarett’s home nearby, and
then returned home. While Martin’s testimony may suggest that Allen and others planned
the robbery to occur later at night and Johnson’s testimony indicates that it in fact occurred
in the late afternoon or early evening, the accounts are not directly contradictory or
inconsistent. Equally unavailing is Allen’s argument that Martin’s testimony is not credible
because he previously testified that the robbery occurred on a different day, specifically
the day before his son’s birthday. Any inconsistency in the testimony as to the actual time
and date of the planning and commission of the robbery is to be resolved by the jury in
determining the sufficiency of the evidence and the credibility of the witness accounts,
and that resolution cannot be disturbed by this Court on a Rule 29 motion. 	See United
States 	v. 	O’Connor, 	650 	F.3d 	839, 	855 	(2d 	Cir. 	2011) 	(“[T]estimonial
inconsistencies…revealed on cross-examination” are for the jury to resolve.); United
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States v. Persico, 645 F.3d 85 (2d Cir. 2011) (“Where there are conflicts in the testimony,
we must defer to the jury’s resolution of the weight of the evidence and the credibility of
the witnesses.”); United States v. Tropiano, 418 F.2d 1069, 1074 (2d Cir. 1969) (it is the
role of the jury, rather than the court, to determine whether a witness who was “inaccurate,
contradictory, and even untruthful in some respects [was still] entirely credible in the
essentials of his testimony”).
The Court also rejects Allen’s argument that a rational fact finder could not have
found Martin credible as to the planning of the robbery, since the jury either hung or
acquitted on other counts as to which Martin supplied testimony. As previously stated, it
is the province of the jury to assess Martin’s credibility, and the jury is entitled to credit
certain aspects of a witness’ testimony while discrediting others. 	See United States v.
Josephberg, 562 F.3d 478, 487 (2d Cir. 2009) (“The jury is free to believe part and
disbelieve part of any witness’s testimony.”) 	Finally, the Court rejects Allen’s argument
that the jury verdict must be overturned because it was unreasonable for a rational fact
finder to find Allen guilty of conspiring to rob Johnson (Hobbs Act robbery), but be unable
to determine whether Allen kidnapped Johnson in aid of racketeering and used a firearm
in the course of robbing and kidnapping him. 	To the extent that these verdicts are
inconsistent, it is well settled that an inconsistent verdict is not a valid basis to overturn
the findings of a jury. 	In United States v. Powell, the Supreme Court upheld a jury’s
verdict acquitting a defendant of conspiracy to possess and possession of cocaine but
convicting her of using a telephone to facilitate those crimes. 	469 U.S. 57 (1984). The
Supreme Court explained that inconsistent verdicts may be the result of compromise,
mistake or leniency on a jury’s part, and “the general reluctance to inquire into the
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workings of the jury…suggest that the best course to take is simply to insulate jury verdicts
from review on this ground.” Id. at 68-69.
Defendant Allen: Narcotics Conspiracy
Allen argues that there was insufficient evidence for the jury to find that he
possessed drugs with intent to distribute them or that he was engaged in a narcotics
conspiracy.3 Allen contends that the majority of the testimony regarding his involvement
in selling drugs was limited to accounts from before the conspiracy began, that no
witnesses testified they bought drugs from or sold drugs to Allen, and that no drugs were
seized from him. Allen argues that there was insufficient proof that he received anything
of value from robbing drug dealers, and that there was insufficient proof that he robbed
drug dealers or sold drugs to increase his position in the enterprise. 	The Court rejects
these arguments and finds, for the reasons stated below, that there was sufficient
evidence presented during the trial to convict Allen of narcotics conspiracy.
Jamile Lee testified that he and Allen were friends, that they knew each other since
childhood and that they were members of the Montana Bridge Gang. 	Dkt. No. 592, 97-
99. 	Lee testified that between 1997 and 2001, he and other members of the Montana
Bridge Gang, including Allen, were involved with drug dealing and robberies of drug
dealers. (Id. at 103) Lee testified that between the 1990’s and 2001 he observed Allen
engaging in drug deals on Montana Street. (Id. at 106) Lee testified that, during this time,
he also observed Allen represent himself as a member of the Bloods gang. (Id. at 712-
713)
3 Here again, Allen contends that because he was only found guilty of the racketeering acts of narcotics
conspiracy and conspiracy to rob Johnson (Hobbs Act robbery), an acquittal as to the narcotics
conspiracy would leave him with a judgment of guilty as to only one racketeering act as opposed to two,
and would necessitate his acquittal as to the racketeering and racketeering conspiracy counts.
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Timothy Jackson testified that he began selling marijuana, cocaine and crack
cocaine around 1997, when he was approximately 14 years old. 	Dkt. No. 605, pg. 57.
He testified that he spent time on Montana Street and that he knew Allen from 1999
through 2004. (Id. at 58) Jackson testified that in the summer of 2004 or 2005, Kashika
Speed offered to sell him some drugs. 	(Id. at 62) 	Jackson testified that he previously
purchased crack cocaine from Speed, on Montana Street, on two or three occasions. (Id.
at 63-64) 	He stated that Eldridge and Allen, who were close friends with Speed, were
present during those transactions. (Id. at 65) Jackson testified that he often saw Eldridge,
Allen and Speed together. (Id.) Jackson further testified that on one occasion where he
bought drugs from Speed, Allen was standing nearby and smoking marijuana. (Id. at 66)
Jackson testified that Allen asked him if he had “any problems because of Speed” and
displayed a firearm to Jackson. (Id. at 67) Jackson testified that in April or May of 2005,
he had another interaction with Allen on Reed Street when Jackson was purchasing
marijuana from another individual. (Id. at 68) Jackson testified that Allen spoke in Blood
terminology and had a pistol at his waist. (Id.) Specifically, Allen stated “I’m gonna be a
Blood forever”, and exposed a pistol. (Id. at 70) Jackson also testified that he observed
teardrop tattoos on Allen’s face, which he understood to be a symbol of the Bloods gang.
(Id. at 71-72) 	Henry Lloyd testified that sometime in 2003 or 2004, Allen and another
individual robbed him of money and crack cocaine. Dkt. No. 595, pg. 95. Lloyd testified
that Allen and the other individual had a gun at the time of the robbery, which they kept
passing back and forth between them. (Id. at 95-96)
As stated previously, Martin testified that he, Allen, Speed and others were
members of the Montana Bridge Gang and that, from the late 90’s through 2005, he saw
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Allen sell bundles of heroin on Montana Street and possess firearms while selling drugs.
Also as indicated previously, Martin provided detailed testimony regarding Allen, Speed
and Eldridge planning robberies of drug dealers, including Johnson.
While some of this evidence was presented as background of the conspiracy, there
also was specific evidence that Allen was observed selling bundles of heroin from the late
90’s through 2005 on Montana Street, which is during the time period of the conspiracy
changed. There was also evidence that, during the time period of the conspiracy, Allen
carried firearms and robbed drug dealers. 	Specifically, Lloyd testified that Allen robbed
him of money and crack cocaine. 	As to the existence of a conspiracy, Martin provided
extensive testimony regarding Allen’s discussions and planning of robbing drug dealers
with Speed, Eldridge and others. 	Indeed, Martin was present for approximately 12 of
those meetings. 	There was also evidence that Allen, Eldridge and Speed were often
together and that, during the relevant time period, Allen was present and armed when
Speed was conducting a drug sale. This evidence, considered in its totality and construed
in a light most favorable to the Government, is sufficient for a reasonable fact finder to
conclude that Allen was guilty of narcotics conspiracy. 	See United States v. Egipciaco,
287 Fed. Appx. 119, 120 (2d Cir. 2008) (defendant’s Rule 29 motion properly denied
where there was sufficient proof at trial to convict defendant of conspiracy to distribute
cocaine, inter alia, where it was shown that defendant agreed to carry out a robbery of a
cocaine dealer with a co-defendant and an un-identified co-conspirator); United States v.
Flaharty, 295 F.3d 182, 200-01 (2d Cir. 2001) (upholding defendant’s conviction for
narcotics conspiracy where evidence was presented that he supplied firearms to narcotics
traffickers and was sometimes paid in narcotics rather than cash, and recognizing that
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firearms are “as much tools of the trade as the commonly recognized articles of narcotics
conspiracy”). 	Furthermore, the evidence presented, most specifically the testimony of
Martin and Jackson, demonstrated that Allen, along with Speed and others, were part of
an enterprise that identified itself as the Montana Bridge Gang or the Bloods, and the
primary purpose of which was to sell narcotics and to rob drug dealers of money and
narcotics. See Boyle v. United States, 556 U.S. 938, 941 (2009) (“an association-in-fact
enterprise is simply a continuing unit that functions with a common purpose”).
Defendant Eldridge: Racketeering and Racketeering Conspiracy
Eldridge argues that his convictions for racketeering (Count 1) and racketeering
conspiracy (Count 2) must be dismissed because there was insufficient evidence as to
the existence of a racketeering enterprise. 	Specifically, he contends that there was no
evidence that he was part of the Montana Bridge Gang or Newburgh Crew, but rather the
only testimony about his gang affiliation came from “jailhouse informants” who indicated
that he was a member of the Bloods. Eldridge further argues that there was insufficient
evidence that he was part of an enterprise with Allen and Speed, since there was no
testimony regarding the group’s organizational structure, management or hierarchy, or
even its informal identity or purpose. The Court rejects these arguments.
An enterprise is defined as “a group of individuals associated in fact.” 	18 U.S.C.
§1961(4); United States v. Indelicato, 865 F.2d 1370, 1382 (2d Cir. 1989) (Congress
deliberately defined the term enterprise “as broadly as possible”). The Government must
prove the existence of an enterprise “by evidence of an ongoing organization, formal or
informal, and by evidence that the various associates function as a continuing unit.”
United States v. Turkette, 452 U.S. 576, 583 (1981). 	Here, the Indictment alleged that
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the enterprise consisted of Eldridge, Allen, Speed and others, known and unknown.
These individuals were alleged to be “members of a criminal organization whose
members and associates engaged in acts of violence, including murder, robbery and
extortion, and narcotics distribution, and which operated principally in the East Side of
Buffalo, New York.” The Indictment alleged that the principle objective of the enterprise
was to obtain money and things of value through acts of, inter alia, murder, robbery and
drug trafficking, and that Allen, Eldridge and Speed directed other associates to carry out
activities in furtherance of these goals. 	The Indictment further alleged that members of
the 	enterprise 	and 	their 	associates 	“represented 	themselves 	to 	be 	and 	identified
themselves as gang members of the Bloods, Montana Street (“Montana Bridge”) and
Newburgh Crew (“NBC”) in order to intimidate victims and rivals, and in order to enhance
their street credibility on the East Side of Buffalo.”
Sufficient evidence was presented at trial for a reasonable fact finder to conclude
that an enterprise, as described in the Indictment, existed and that Eldridge was a
member of the enterprise. 	Specifically, Sam Cuyler testified that he was previously a
member of the Bloods, and that he has tattoos which symbolize his prior membership.
Dkt. No. 659, pgs. 8-9. Cuyler testified that he met Eldridge at the Chautauqua County
Jail in 2009 when they were both incarcerated there. (Id. 7-8, 11-12) Cuyler stated that
Eldridge noticed his Bloods’ tattoo, and that Eldridge told Cuyler that he was a “big homie”
in the Bloods. (Id. at 13) Cuyler testified that Eldridge asked Cuyler to work for him and
further stated that he had younger gang members work for him because they do not get
in as much trouble and they stay loyal. 	(Id. at 13-14) 	Cuyler testified that Eldridge told
him that he had people killed, that he had been shot at, and that he was getting guns and
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drugs from Atlanta and bringing them to Buffalo. (Id. at 15-16) 	As detailed above, Steve
Martin testified that he was a member of the Montana Bridge Gang from the mid 1990’s
to early 2000’s and that he and other members sold drugs and committed robberies on
Montana Street and in the surrounding neighborhood. 	Dkt. No. 594, 9-10. 	He testified
that Allen was a close friend of his, and that Allen, Eldridge and Speed were all friends.
(Id. at 15-16) Martin testified that Allen and Speed were part of the Montana Bridge Gang,
that members of the gang represented their “streets [Montana and the surrounding
neighborhood] through drugs and firearms”, that Montana Bridge members participated
in robberies, burglaries and shootings, and that they targeted drug dealers for robberies.
(Id. at 21, 24 33) 	Martin provided detailed testimony about conversations he had with
Allen about robbing drug dealers in the late 1990’s and early 2000’s, and that when he
was released from prison in 2005, Allen recruited him to participate in robberies of drug
dealers with him, Eldridge and Speed. (Id. at 34, 64-65) Specifically, Martin testified that
he was present for approximately 12 meetings between Eldridge, Allen, Speed between
January and May of 2005 where they discussed robbing drug dealers, including Johnson.
(Id.) Martin further testified that Allen told him that in the summer of 2004, Eldridge and
Speed robbed Michael Ray. 	(Id. at 71-73) 	Martin testified that, as far as he knew,
Eldridge received drugs and sold them after the robberies, and that Eldridge and Allen
made at least three trips to Atlanta following the robberies. (Id. at 85, 119) He testified
that he observed Allen and Speed represent the Bloods through tattoos and handshakes.
(Id. at 85-89) Woodie Johnson testified that he was kidnapped at gunpoint by Eldridge,
Speed and Allen, and that they stole cocaine from him. Dkt. No. 597, pgs. 39-59, 61-63.
Ralph Niesman testified that he knew Eldridge, Allen and Speed for many years. Dkt. No
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599, pgs. 131-134. 	Niesman sold drugs and was involved in the robberies of drug
dealers. 	(Id. at 134, 137) 	Niesman testified that he met with Eldridge in June of 2005
and Eldridge told him that he was robbing people and asked Niesman if he wanted to get
involved. 	(Id. at 137 -139) 	Frank Nash testified that he broke into two houses with
Eldridge and Speed. Dkt. No. 604, pg. 127-128. Nash also testified that in 2004 he was
in a car with Eldridge and Speed when Speed gave him a gun and asked him to shoot
someone. (Id. at 125-26)
This testimony, considered in its totality, establishes that Eldridge, Allen, and
Speed were members of a continuing criminal organization that obtained money and
other things of value through drug distribution, robberies, intimidation and acts of violence,
and that they recruited and directed others to assist in these activities. 	Boyle, 556 U.S.
at 947 (the existence of an enterprise may be inferred from the pattern of racketeering
acts since “the evidence used to prove the pattern of racketeering activity and the
evidence establishing an enterprise may in particular cases coalesce”) (internal citations
omitted); United States v. Lee, 660 Fed. Appx. 8, 9-10 (2d Cir. 2016) (evidence that a
group of about a dozen members, centralized around one street, sought to enrich
members through narcotics trafficking and armed robberies, over the course of a decade,
was sufficient to establish an enterprise under RICO).
Furthermore, the evidence demonstrates that one of the means and methods of
the conspiracy was that its members represented themselves to associated with various
gangs, including the Bloods and the Montana Bridge Gang, in order to gain power and
intimidate others. 	In establishing the existence of an enterprise, it is irrelevant that
Eldridge represented himself to be a member of the Bloods while other members
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represented themselves to be members of the Montana Bridge Gang or the Bloods, or
both. Indeed, there was a plethora of testimony that Eldridge acted together with Speed,
Allen and others to engage in a continuing pattern of unlawful activities. Finally, the Court
rejects defendant’s arguments that an enterprise was not proven because there was no
evidence of a hierarchical structure or management, as these are not necessary elements
for the existence of a racketeering enterprise. 	See Boyle, 556 U.S. at 948 (“an
association-in fact enterprise is simply a continuing unit that functions with a common
purpose…[s]uch a group need not have a hierarchical structure or ‘chain of command’;
decisions may be made on an ad hoc basis and by any number of methods….[t]he group
need not have a name, regular meetings, dues, established rules and regulations,
disciplinary procedures, or induction or initiation ceremonies”).
Defendant Eldridge: Narcotics Conspiracy
Eldridge argues that there was insufficient evidence that he participated in a
narcotics conspiracy or possessed drugs with intent to distribute them, and therefore his
convictions as to Count 3 (narcotics conspiracy) and the racketeering act related to
narcotics conspiracy must be dismissed. 	The Court rejects these arguments and finds
that there was more than sufficient evidence for a reasonable fact finder to conclude that
defendant was guilty of narcotics conspiracy.
As stated above, Sam Cuyler testified that Eldridge told him that he obtained drugs
and guns from Atlanta. This testimony was corroborated by Steve Martin’s testimony that
Eldridge and Allen traveled to Atlanta after robbing drug dealers, and Government
exhibits which demonstrated that eight hundred thirty-two (832) phone calls were placed
from Eldridge’s cellular phone to Atlanta-area phone numbers between March and June
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of 2005. Martin also testified that it was his understanding that Eldridge sold drugs after
robbing drug dealers. Jay Renfro testified that he was a major drug dealer in Buffalo from
2001 through 2004, and that he would “move” or sell approximately ten kilograms of crack
cocaine per week. 	Dkt. No. 592, pg. 57-58. 	Renfro testified that in or around 2003 he
provided Eldridge with half a kilogram of crack cocaine, which was worth approximately
$10,000. (Id. at 61-62) Renfro also testified that after he was released from jail, around
March of 2005, he drove Eldridge around two or three times, and that he observed
Eldridge with a gun. (Id. at 65-66, 67, 78-80) Frank Nash testified that he began selling
crack cocaine for Eldridge in the spring of 2004 because Eldridge “did not like getting his
hands dirty.” 	Dkt. No. 604, pg. 116-117. 	As stated above, Timothy Jackson observed
Eldridge and Allen with Speed on Montana Street when he was purchasing drugs from
Speed.4 Dalon Moss testified that in September of 2005 she met a man in a gas station
parking lot and traded temporary use of her car for $20 worth of crack cocaine. Dkt No.
660, pg. 58-69. She later identified the man as Eldridge in a police line-up. (Id.) Finally,
there was a plethora of testimony that Eldridge and co-conspirators routinely targeted
drugs dealers for robberies, and that Eldridge robbed Johnson of money and two
kilograms of crack cocaine.
The Court rejects defendant’s arguments that his conviction should be overturned
since there was insufficient evidence that he himself sold narcotics, or that he was
involved in a joint venture with others to sell them. The actual distribution of narcotics is
not a necessary element for conspiracy to distribute narcotics, and the evidence,
4 In the supplemental affidavit in support of his motion for a new trial, Eldridge argues that Jackson was
unreliable and not credible in his testimony. However, assessing witness credibility is a function reserved
for the jury. See United States v. Frampton, 382 F.3d 213, 221 (2d Cir. 2004) (“It is well-established that
the evaluation of witness credibility is a function of the jury…”)
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considered in its totality and with all inferences drawn in favor of the Government,
demonstrates that Eldridge, Allen and others conspired together to rob drug dealers and
engage in narcotics trafficking. 	See United States v. Rodriguez, 392 F.3d 539, 544 (2d
Cir. 2004) (“To sustain a conspiracy conviction, the government must present some
evidence from which it can reasonably be inferred that the person charged with
conspiracy knew of the existence of the scheme alleged in the indictment and knowingly
joined and participated in it.”); United States v. Anderson, 747 F.3d 51, 61-62 (2d Cir.
2014) (intent to distribute may be inferred from the drug quantity); United States v.
Fernandez, 636 Fed. Appx. 71 (2d Cir. 2016) (defendant’s argument that the record was
insufficient to demonstrate his membership in the charged conspiracy because there was
no evidence that he handled or sold narcotics failed…because “even if [defendant] was
not seen in personal possession of narcotics, the record shows that he led the drug
operation…[and a witness identified him] as the ‘boss’ who ‘puts up the money’ for the
drugs distributed by the operation”); United States v. Desimone, 119 F.3d 217, 223 (2d
Cir. 1997) (“a conspiracy may be established entirely by circumstantial evidence…the
conspiratorial agreement itself may be established by proof of a tacit understanding
among the participants, rather than by proof of an explicit agreement…and the absence
of an actual sale or seizure of narcotics does not render insufficient the proof of a
conspiracy to distribute it”).
Defendant Eldridge: Possession of Firearms
Eldridge argues that his conviction as to Count 4 must be dismissed because there
was insufficient evidence that he possessed firearms in furtherance of drug trafficking.
Here again, the Court finds that the evidence, considered in its totality and in a light most
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favorable to the Government, was sufficient to sustain Eldridge’s conviction as to Count
4.
As detailed previously, Jay Renfro testified that when Eldridge was released from
jail, Renfro provided him with half a kilogram of crack cocaine. 	Renfro further testified
that he drove Eldridge around Newburgh Street, an area where the enterprise was known
to sell drugs, and observed that Eldridge carried a firearm on those occasions. 	Also
during Renfro’s trial testimony, the Government was permitted, pursuant to Federal Rule
of Evidence 801(d)(1)(A), to introduce testimony that Renfro previously provided to the
grand jury. 	(Id. at 78) 	Specifically, the jury heard previous testimony from Renfro that
every time he drove Eldridge somewhere, Eldridge had a gun with him, and that Eldridge
was “always strapped” meaning that he possessed a gun “every time, all day, every day.”
(Id. at 79) Renfro was asked if Eldridge had a gun with him when Renfro dropped him off
to sell drugs, and he answered yes. (Id. at 80) Renfro also testified that Eldridge carried
a gun “basically because he had beef with everyone or other than that, robbing people.”
(Id.) 	Sam Cuyler testified that Eldridge told him that he obtained guns and drugs from
Atlanta, and that he had shot people and had been shot at. 	Steve Martin testified that
guns were present in the home on Newburgh Street when he, Allen, Speed and Eldridge
discussed robbing drug dealers, and Woodie Johnson testified that he was robbed at
gunpoint by a group of individuals which included Eldridge. Frank Nash testified that he
broke into two homes and stole drugs with Speed and Eldridge, and that he was armed
at the time. Dkt. No. 604, pgs. 128-132. Timothy Jackson testified that Eldridge and Allen
were present when he purchased crack cocaine from Speed, and that Allen was armed.
Indeed, there was also testimony by a number of witnesses that members of the
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enterprise carried guns for protection and used firearms in the course of carrying out
various unlawful activities, including drug trafficking and the robbery of drug dealers. See
United States v. Estrada, 430 F.3d 606, 613 (2d Cir. 2005) (recognizing that firearms are
tools of the drug trade); United States v. Snow, 462 F.3d 55, 62 (2d Cir. 2006) (“the
ultimate question is whether the firearm “afforded some advantage (actual or potential,
real or contingent) relevant to the vicissitudes of drug trafficking…[and] a drug dealer may
be punished under §924(c)(1)(A) where the charged weapon is readily accessible to
protect drugs, drug proceeds, or the drug dealer himself.”) (internal citations omitted);
United States v. Lewter, 402 F.3d 319, 322 (2d Cir. 2005) (“the test is whether a
reasonable jury could, on the evidence presented at trial, find beyond a reasonable doubt
that possession of a firearm facilitated a drug trafficking crime”).
Defendant Eldridge: Attempted Robbery at 87 Girard Street
Eldridge argues that there was insufficient evidence for a reasonable fact finder to
conclude that he committed the racketeering act related to an attempted robbery at 87
Girard Street on March 24, 2004. 	Defendant emphasizes that the perpetrators of the
robbery were masked and the victims could not properly identify them, and that the
general description of the perpetrator as an average-sized black male with glasses was
insufficient to link him to the crime. Defendant further argues that even though his DNA
was found on a cigar butt at the scene, there was no evidence that the perpetrator of the
robbery was smoking a cigar.
Alice Collins, a victim of the robbery, testified that in March of 2004 she rented the
lower apartment at 87 Girard Street in Buffalo with her significant other, Rolla Hackett.
Dkt. No. 659,168-169, 171. 	She testified that her landlord, Orlando Davis, lived in the
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upper apartment. 	(Id. at 174-175) 	She testified that, at that time, she and her friends
were regular crack cocaine users and that they would often purchase crack cocaine from
Davis. (Id.) 	She further testified that people routinely came and went from the upper
apartment, which she assumed was related to buying drugs. 	(Id.) 	Collins testified that
on March 24, 2004, she left the apartment to do some shopping and returned to find
Hackett and three other acquaintances tied up with duct tape. (Id. at 176-178) 	Collins
testified that two black men, one light and shorter and the other dark and taller, had guns
pointed at them. (Id. at 179-180) Collins testified that the men told her to get on the floor,
at which time the front door made a cracking sound, and the men panicked and ran. (Id.
at 182) 	There was also testimony from Davis that the door at the rear of Collins’
apartment leads to a staircase that accesses the upper apartment. Dkt. No. 595, pg. 74,
76-77. He further testified that when the police came to investigate the robbery, he was
arrested for drug paraphernalia, including “cocaine bags on the table, reefer bags on the
table and some residue.” (Id.) Davis also testified that he was presently incarcerated for
possessing a large amount of cocaine that he intended to distribute. 	(Id. at 72) 	Most
significantly, there was testimony that a partially smoked cigar butt was recovered from
the scene of the robbery and submitted for a DNA analysis. 	A sample of Eldridge’s DNA
was compared with the DNA on the cigar, and it was found to be a perfect match.
Here, considering the evidence in its totality and drawing all reasonable inferences
in favor of the Government, a reasonable fact finder could conclude that Eldridge was
guilty of attempted robbery at 87 Girard Street on March 24, 2004. 	Indeed, Collins’
description of the perpetrators generally matched that of Eldridge and Allen. 	The
testimony indicated that a drug dealer lived upstairs from Collins and it was reasonable
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for the jury to infer that he was the target of the robbery, which is consistent with evidence
of other robberies planned and/or executed by Eldridge and Allen in this case. 	Finally,
the discovery of Eldridge’s DNA on a cigar butt in the apartment on the day of the incident,
when there was no evidence that Eldridge had ever been to the apartment before or knew
any of the individuals that lived there, is highly incriminating. See United States v. Rea,
958 F.2d 1206, 1221-22 (2d Cir. 1992) (“Matters of choice between competing inferences,
the credibility of the witnesses, and the weight of the evidence are within the province of
the jury, and we are not entitled to second-guess the jury’s assessments.”); United States
v. Rosenthal, 9 F.3d 1016, 1024 (2d Cir. 1993) (in examining the sufficiency of the
evidence, a court should not analyze pieces of evidence in isolation, but rather must
consider the evidence in its totality); United States v. Irving, 452 F.3d 110 (2d. Cir. 2006)
(“A jury may convict on circumstantial evidence alone.”); United States v. Eppolito, 543
F.3d 25 (2d. Cir. 2008) (viewing the evidence in the light most favorable to the government
means “crediting every inference that the jury might have drawn in favor of the
government” and “recognizing that the governments evidence need not exclude every
other possible hypothesis.”) (internal citations omitted).
The Court also rejects defendant’s arguments that in order to convict as to the
attempted robbery, the jury must have relied on inadmissible hearsay. 	During the
Government’s opening statement, the prosecutor indicated that the jury would hear
evidence that the perpetrator was smoking a cigar at the time of robbery. During the trial,
the Government attempted to introduce testimony to this effect through the excited
utterance exception to the hearsay rule. 	However, the Court ultimately sustained
defendant’s objections to the testimony and found it to be inadmissible hearsay. Indeed,
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the jury was instructed a number of times during the trial that opening statements, and
the lawyers’ statements in general, are not evidence. There is no reason to believe the
jury did not listen and follow this instruction. 	United States v. Sparano, 422 F.2d 1095
(2d Cir. 1970) (“As far as the opening statement was concerned, both counsel in argument
and the court in its charge emphasized that the statement was not evidence and not be
taken as evidence. This instruction is one which the jury could understand and follow and
it is assumed they did so.”); Herring v. Meachum, 11 F.3d 374, 378 (2d Cir. 1993) (the
court must presume the jury follows instructions, unless there is an overwhelming
probability that they were unable to).
Defendant Eldridge: Kidnapping and Robbery of Woodie Johnson
Eldridge contends that there was insufficient evidence that he kidnapped and
robbed Woodie Johnson, and therefore his convictions as to Count 5 (kidnapping in aid
of racketeering), Count 6 (Hobbs Act robbery) and Count 7 (use of a firearm in furtherance
of a crime of violence), as well as the related racketeering acts, should be dismissed.
Specifically, defendant argues that there was insufficient evidence of an enterprise or that
he kidnapped Johnson to further his position in it. 	Defendant further contends that
because the jury hung as to defendant Allen with respect to Count 5 (kidnapping in aid of
racketeering) and Count 7 (use of a firearm in furtherance of a crime of violence), Eldridge
should not have been convicted of those counts since no one was found to have aided
and abetted him. 	Finally, Eldridge argues that the testimony about the kidnapping and
the robbery was inconsistent and not credible. The Court rejects each of these arguments
in turn.
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As explained in detail above, there was sufficient evidence presented during the
trial that a racketeering enterprise existed, and that Eldridge was a member of the
enterprise. 	Further, in United States v. Pimentel, the Second Circuit explained that in
establishing that a defendant committed a violent crime in aid of racketeering, the
“Government is not required to prove that maintaining or increasing [a defendant's]
position 	in 	the 	RICO 	enterprise 	was 	the 	defendant's 	sole 	or 	principal
motive…[r]ather…the motive requirement is satisfied if the jury could properly infer that
the defendant committed his violent crime because he knew it was expected of him by
reason of his membership in the enterprise or that he committed it in furtherance of that
membership." 	346 F.3d 285, 295 (2d Cir. 2003). 	This requirement was satisfied here
through testimony regarding the nature of the kidnapping and the manner in which it was
carried 	out. 	Further, 	the 	Government 	introduced 	jail 	calls 	where 	Eldridge 	made
statements such as: “The way I gotta respond to certain things in Buffalo…I don’t have to
respond when I’m somewhere else because there are no expectations of me…”; “I be
around a lot of criminals and all that and I am the one who is looked up to”; “I ain’t just
being the average individual amongst the whole bunch.” This evidence, considered in its
totality, was sufficient proof for a reasonable juror to conclude that Eldridge committed
the kidnapping in furtherance of his membership in the enterprise.
Eldridge’s contention that his convictions on Counts 5 and 7 cannot stand because
the jury hung as to Allen’s guilt on those counts is essentially a claim that the verdicts are
inconsistent. 	The Second Circuit has routinely held that an inconsistent verdict is not a
valid basis to overturn a conviction. 	See Harris v. Rivera, 454 U.S. 339, 345 (1981)
(internal citations omitted) (“Inconsistency in a verdict is not a reason for setting it
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aside..[w]e have so held with respect to inconsistency between verdicts on separate
charges against one defendant…and also with respect to verdicts to treat codefendants
in a joint trial inconsistently.”)
Finally, considering the evidence in its totality and in the light most favorable to the
Government, there was more than sufficient evidence for the jury to conclude that
Eldridge conspired to rob Johnson, kidnapped Johnson in aid of racketeering and used a
firearm in furtherance of the robbery and kidnapping. 	Steve Martin provided detailed
testimony about the planning of the robbery by Eldridge, Allen and Speed and testified
that weapons were present during the meeting. 	Johnson’s testimony regarding the
manner in which he was robbed at gunpoint corroborated Allen’s testimony regarding the
manner in which Eldridge and others planned to carry out the crime. Indeed, as explained
in detail above, any inconsistencies in the testimony or witness credibility issues were for
the jury to weigh and determine. 	Finally, Johnson testified that when he and Eldridge
were later incarcerated together, Eldridge approached Johnson, introduced himself, and
admitted that he had committed the kidnapping and robbery.
Circumstantial Evidence Charge
Eldridge argues that because some of the counts and racketeering acts were
based on circumstantial evidence, the Court erred in refusing to give a circumstantial
evidence charge requested by the defense. 	The proposed charge read, in part, that
“[w]here 	more 	than 	one 	inference 	may 	logically 	flow 	from 	the 	circumstantial
evidence…the 	jury 	must 	remember 	that 	each 	element 	of 	the 	offense 	must 	be
established…beyond a reasonable doubt…[i]f the evidence supports an inference of guilt
and an inference of innocence, the jury must give the defendant the benefit of the doubt.”
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See Dkt. No. 513, pg. 4. 	This is a charge commonly requested under New York State
criminal law. 	See People v. Sanchez, 61 N.Y.2d 1022, 1024 (1989) (if evidence of a
defendant’s guilt is exclusively circumstantial, a jury must be instructed to view the
evidence with particular care). 	However, there is no federal constitutional right to a
circumstantial evidence jury instruction, and, even if this right existed, this is not a case
which rested entirely on circumstantial evidence. See Martinez v. Reynolds, 888 F. Supp.
459, 464 (EDNY 1995). 	Here, the Court instructed the jury, on multiple occasions, that
the Government must prove each element of each offense, as to each defendant, beyond
a reasonable doubt in order to support a finding of guilty. The Court finds no error in the
refusal to give the circumstantial evidence charged requested. 	See United States v.
Ross, 14-2498, 2017 U.S. App. LEXIS 9003 (2d Cir. May 24, 2017) (where a district court
instructed the jury that the government bore the burden of proving each element of the
four charges beyond a reasonable doubt…it did not err in declining to give the jury the
circumstantial evidence charge).
For all of these reasons, the Court denies defendant Eldridge and defendant
Allen’s requests, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for a
dismissal of their counts of convictions or, in the alternative, a new trial.
Rule 33
Rule 33(a) provides that “upon the defendant’s motion, the court may vacate any
judgment and grant a new trial if the interest of justice so requires.” See Fed. R. Crim.
P. 33(a). Here, defendants Allen and Eldridge argue that they are entitled to a new trial
because they were denied a fair and public trial.
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Denial of Right to Public Trial
The Government delivered its opening statement on Friday, January 15, 2016.
On Monday, January 18, 2016, defendants made a motion for a mistrial. The basis of
the motion, in part, was that following opening statements and the luncheon recess on
January 15, government agents asked some of defendants’ friends and family
members, who were attending the trial as spectators, to produce identification and to
provide their names, birth dates and addresses when they entered the courtroom.
Defendants also stated that agents “confronted” a spectator who was taking notes. On
January 19, 2016, at the conclusion of the trial testimony that day and outside the
presence of the jury, the Court heard argument as to the mistrial motion. (Dkt. No. 659,
pgs. 217-223) At that time, defense counsel discussed the agents’ behavior and stated
that the agents informed the spectators that the Court had directed them to ask for
identification. (Id.) The Court then stated that it had made no such directive, and that it
was unaware that this conduct had occurred. (Id.)
The Government responded, both during argument before the Court and in
writing, that the request for identification was in response to a specific instance of
potential witness intimidation or threats that occurred that day. The Government
proffered that during its opening statement, some spectators appeared to be taking
notes and leaving the courtroom. Shortly thereafter, the Government received reports
of witness intimidation. In fact, the Government indicated the between the start of the
trial and the conclusion of opening statements, they had to relocate a witness who had
been threatened twice during that period of time. (Id. at 215) As a result, the
Government made an effort to determine, at that time, who the spectators were. The
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Government also employed agents in plain clothes to ascertain which spectators were
involved in notetaking. The Government indicates that no individuals were asked for
identification when the jury was present or when court was in-session, no one was
prevented from entering the courthouse or courtroom, no one was prevented from
taking notes, and no notes were actually confiscated.
The motion for a mistrial was denied orally by the Court on January 19, 2016,
and then in a written decision on February 2, 2016. (Dkt. No. 555) A review of the
record indicates that following the oral argument on January 19, 2016, the Court was
not made aware of any further incidents wherein spectators were asked for identification
before entering the courtroom. Defendants Allen and Eldridge now renew their previous
arguments and contend that they are entitled to a new trial pursuant to Rule 33 of
Federal Rules of Criminal Procedure because the agents’ conduct in requesting that
spectators provide identification before entering the courtroom deprived them of a public
trial.
The Sixth Amendment provides, inter alia, that “the accused shall enjoy the right
to a…public trial.” U.S. Const. amend. VI. The Second Circuit has noted a “special
concern for assuring the attendance of family members of the accused.” Vidal v.
Williams, 31 F.3d 67, 69 (2d Cir. 1994); Guzman v. Scully, 80 F.3d 772, 776 (2d Cir.
1996) (“The exclusion of courtroom observers, especially a defendant’s family members
and friends, even from part of a criminal trial, is not a step to be taken lightly.”)
However, a criminal defendant’s right to a public trial “may give way in certain cases to
other rights or interests.” See Waller v. Georgia, 467 U.S. 39, 45 (1984). In Waller, the
Supreme Court established a four-prong test used to determine when a defendant’s
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Sixth Amendment right is violated by the closure of the courtroom. Id. Specifically, the
Court found that closure of a courtroom does not rise to the level of a Sixth Amendment
violation if: “(1) closing the hearing would advance an overriding interest that is likely to
be prejudiced; (2) the closure is no broader than necessary to protect that interest; (3)
the trial court considers reasonable alternatives to closing the proceeding; and (4) the
trial court makes findings adequate to support the closure.” Id. The Second Circuit has
held that where a partial closure occurs, such as the enforcement of a requirement that
visitors or spectators show identification, the first Waller factor is relaxed, requiring only
a “substantial reason” rather than an “overriding interest” justifying the closure. United
States v. Smith, 426 F.3d 567 (2d Cir. 2005) (defendant’s “Sixth Amendment right to a
public trial was not violated by the requirement that court visitors show photo
identification because the security measures effected at most a partial closure of [the]
trial that satisfied that four-part test articulated in Waller v. Georgia”).
Here, there was a substantial interest advanced in requesting spectators to
provide identification on January 15, 2016, namely to prevent witness tampering.
During the Government’s opening statement, the prosecutor referred to several
witnesses who would be testifying on behalf of the Government. Since a protective
order had previously been in place, this was the first time that these witness names
were publically revealed. The Government indicated that immediately following opening
statements, it received information that at least one witness mentioned during the
opening had been threatened or intimidated. Since defendants were incarcerated, a
protective order was in place with regard to the witness list, and there had been no
media reports containing names of witnesses at that time, an inference could logically
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have been drawn that a spectator to the trial was either directly involved in the threat or
had disclosed information which resulted in the threat. Indeed, when the courtroom
closure is narrow, a court is not required to “demand compelling evidence” that there is
a positive correlation between the partial closure and the interest asserted. Smith, 426
F.3d 573 (internal citations omitted) (“the district court’s ‘common sense’ conclusion that
‘someone who is forced to identify themselves is less likely to pose a threat than
someone who is allowed to walk into the building without any at all’ satisfies this
undemanding inquiry”). Here, a requirement that an individual present identification to
law enforcement made it less likely that they would then be involved with witness
tampering or intimidation. In addition, a list of the spectators present during the trial
would aid law enforcement in the event that further investigation needed to be
conducted. Thus, the Court finds a direct connection between the partial closure, in the
form of the identification request that day, and the Government’s interest in preventing
witness tampering.
As to the second prong, the Court finds that the partial closure was not broader
than necessary to protect the asserted interest. Not only was the closure itself very
narrow and only affected those who could not, or would not, produce identification, but it
only occurred for a brief period of time immediately after the Government received
reports of witness identification.5 The third prong requires a trial court to consider
reasonable alternatives to closing the proceedings. See Waller, 467 U.S. at 48. Here,
5 The Court notes that there is no evidence that any spectator was permanently excluded from the trial.
Instead, defendants claim that some spectators chose not to return because they did not want to provide
identification. While defendants state that Eldridge’s brother, Julius Jones, was excluded from the
courtroom because he did not stand when the jury entered, there is no evidence that this was a
permanent bar as to Mr. Jones’ ability to attend the proceedings.
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the Court did not have the opportunity to consider reasonable alternatives because the
request for identification was undertaken for a brief period of time only and without the
Court’s knowledge or prior approval. However, the Court notes that the request
occurred only immediately after and in specific response to a report that a witness had
been threatened, and was undertaken to prevent any witness interference or
intimidation. In light of the brief period during which the request for identification
occurred and the surrounding circumstances, the Court finds that the requests were
narrowly tailored, reasonable and appropriate.
Finally, the fourth prong requires that the trial court “make findings adequate to
support the closure.” Waller, 467 U.S. at 48. These findings must ordinarily support
“the particular courtroom closing ordered by the trial judge.” Bowden v. Keane, 237
F.3d 125, 129-30 (2d Cir. 2001). In United States v. Smith, the Second Circuit
recognized the fourth prong may be met in circumstances where the Court has not
ordered the partial closure and has not made particularized findings before the partial
closure is carried out. 426 F.3d at 574. In Smith, the Second Circuit held that a
requirement that visitors and spectators produce identification before entering the
courthouse was a valid partial closing that did not violate defendant’s Sixth Amendment
rights, in part because “the requirement of particularized findings is unjustified, since the
post-September 11th security measures were adopted by the Marshals Service and
DHS to address a generalized threat.” Id. The Second Circuit went on to explain that:
When a judge, in the relative calm of chambers, issues [a closure order],
for example, the requirement of particularized findings obtains. In that
context, findings are a necessary safeguard against arbitrary judicial
abridgement of the constitutional right. But when the decision is made by
an administrative or law-enforcement officer in the lobby of a courthouse,
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adherence to what in those circumstances would be the anomalous
formality of particularized findings cannot reasonably be expected.
Id.; quoting Huminski v. Corsones, 396 F.3d 53, 86-87 (2d Cir. 2005). Here, the
Government and law enforcement made a determination, in light of the information they
were immediately presented with, to ask for spectators’ identification in response to a
report of witness intimidation. The Court concludes that, in consideration of all
surrounding factors at that time, it was appropriate for agents to request identification
and that the circumstances did reasonably lend themselves to particularized findings by
the Court. For all of these reasons, the Court concludes that defendants’ rights to a
public trial were not violated.
With respect to the agent’s request to review spectator notes, this action did not
implicate defendants’ Sixth Amendment rights. No individual was precluded from taking
notes, and no notes were confiscated from any spectator. Because the agent’s review
of spectator notes did not constitute a closure or partial closure of the courtroom, the
defendants’ rights to a public trial were not violated in this regard.
Denial of Right to Fair Trial
Prior to the start of the trial, the Court received a recommendation from the
United States Marshal’s Service that, as a result of defendants’ prior history and the
nature of the crimes charged, defendants should remain in leg shackles during the
course of the trial. In anticipation of this, the Court erected a curtain, which was
approximately three feet high and attached to stationary rods. The curtain concealed
defendants’ leg shackles from the jury. The curtain ran down the middle of the
courtroom, from the Judge’s bench in front of the courtroom to approximately three feet
from the spectator gallery. The curtain separated defendants and their counsel on one
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side from the Government attorneys and the jury on the other. The curtain then
continued behind defense tables to the wall furthest from the jury box, separating
defendants from the spectator gallery.
On January 12, 2016, prior to the start of the trial, defendants moved to have
their leg shackles removed for the duration of the trial. On January 13, 2016, the Court
granted defendants’ request to remain unshackled. This request was granted contrary
to the United States Marshal’s recommendation that defendants remain in leg shackles
over the course of the trial. At that time, the Court informed defendants that if they were
at all disruptive or did not follow directions of the Marshal’s, the shackles would be
placed back on. Jury selection occurred on January 13 and 14, 2016. Defendants were
not in leg shackles but the curtain remained in place. Sometime during the first day of
jury selection, defense counsel requested that the curtain be removed. The Court
denied this request and left the curtain in place throughout the trial. The Court
reasoned that if for some reason a defendant needed to be placed back in leg shackles,
it would look suspicious if the curtain suddenly appeared.
Defendants argue that the placement of a hip-height, black curtain down the
center of the courtroom violated their right to a fair trial because the curtain, combined
with the presence of many marshals and the fact that Juror 1 asked the Court if
defendants had his personal information, indicates that jurors perceived defendants to
be violent. Defendants also raised this issue in their motion for a mistrial, which was
denied orally by the Court on January 19, 2016 and then in a written decision on
February 2, 2016. (Dkt. No. 555)
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The Second Circuit has held that “a trial judge may order physical restraints on a
party only when the court finds those restraints to be necessary to maintain safety or
security; but the court must take steps to minimize the prejudice resulting from the
presence of the restraints.” Davidson v. Riley, 44 F.3d 1118, 1122-23 (2d Cir. 1995). A
court may not “delegate this discretion to another party, including the Bureau of Prisons
or the United States Marshals, because the court must ‘consider all the evidence and
ultimately make the decision [for itself]’.” Id. at 1123 (internal citations omitted); see
also Hameed v. Mann, 57 F.3d 217, 222 (2d Cir. 1995) (the decision to impose any
physical restraints must be made by the trial judge and must be on the record). The
Second Circuit has further held that where a district court “finds that shackles are
necessary for the safety of the defendant or any other persons in the courtroom, the
Court must ensure that the restraints are no greater than necessary to ensure safety
during trial, and the Court must take steps to minimize any prejudice to the defendant
from being tried in physical restraints.” United States v. Haynes, 729 F.3d 178 (2d Cir.
2013).
Here, the Court made an independent finding, on the record and after hearing
from all parties, that defendants would be permitted to remain unshackled for the trial
contingent on their continued good behavior and total cooperation with the United
States Marshal’s. This request was granted in spite of the United States Marshal’s
recommendation to the contrary. However, the Court warned defendants and their
counsel that any noncompliance or disruption by defendants would result in
reinstatement of the leg shackles. Because the Court specifically accounted for the
possibility that one or all of the defendants could be placed back in leg shackles if they
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were noncompliant or disruptive, the Court left the curtain in place. The curtain was
necessary to hide the leg shackles from the view of the jurors, and the sudden
appearance of a curtain part-way through the trial would likely have caused speculation
or suspicion by jurors. In contrast, the presence of the curtain from the beginning of the
trial through the end would have caused much less suspicion or speculation in that it
would likely appear to jurors as a normal feature of the courtroom.
The Court rejects defendants’ argument that the curtain is an “unconstitutional
restraint” which implies that defendants are dangerous and draws immediate attention
to their side of the courtroom. At the time of the trial, defendant Allen was currently
serving a twenty-five year sentence following a state court conviction for a murder
unrelated to this case and two additional, consecutive five year sentences for state court
burglary convictions, defendant Eldridge had prior convictions for manslaughter and
robbery, among others, and defendant Rose had been flagged by the United States
Marshal’s as a flight risk. All three defendants were charged with violent crimes,
including murder, and all faced life sentences if convicted. There were reports that
Government witnesses have been threatened, and a protective order as to discovery
materials and the witness list was in place. It was certainly not unforeseeable that one
or more of the defendants would need to be placed in leg shackles at some point during
the trial. The use of the curtain throughout the trial ensured that no undue attention
would be paid to its presence if circumstances changed and leg shackles were needed.
Further, given defendants’ histories and the totality of the circumstances
presented, including the Court’s need to eliminate prejudice by accounting for the fact
that leg shackles may need to be reinstated, the use of a curtain as a divide in the
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courtroom did not deprive defendants of a fair trial. The Supreme Court has
acknowledged that while “‘one accused of a crime is entitled to have his guilt or
innocence determined solely on the basis of the evidence introduced at trial, and not on
grounds of official suspicion, indictment, continued custody, or other circumstances not
adduced as proof at trial’...[t]his does not mean, however, that every practice tending to
single out the accused from everyone else in the courtroom must be struck down.”
Holbrook v. Flynn, 475 U.S. 560 (1986) (internal citations omitted). The Supreme Court
went on to explain that “recognizing that jurors are quite aware that the defendant
appearing before them did not arrive there by choice or happenstance, we have never
tried, and could never hope, to eliminate from the trial procedure every reminder that the
state has chosen to marshal its resources against a defendant to punish him for criminal
conduct.” Id.
For all of these reasons, the Court denies Allen and Eldridge’s motions for a new
trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure.
CONCLUSION
For 	the 	foregoing 	reasons, 	defendant 	Kevin 	Allen 	and 	defendant 	Thamud
Eldridge’s motions for a judgment of acquittal and a new trial, pursuant to Rules 29 and
33 of the Federal Rules of Criminal Procedure, are denied in their entirety. Counsel shall
appear before the Court on Wednesday, August 30, 2017 at 10:00 a.m. for a status
conference and to set dates for defendants’ sentencings.
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SO ORDERED.
Dated: August 28, 2017
Buffalo, New York
__s/Richard J. Arcara________
RICHARD J. ARCARA
United States District Judge
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