USA v. Eldridge et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
09-CR-329-RJA
DECISION AND ORDER
v.
THAMUD ELDRIDGE a/k/a Damu,
KEVIN ALLEN, and
GALEN ROSE,
Defendants.
INTRODUCTION
Before the Court is the Government’s motion to defer retrial of defendants
Thamud Eldridge and Kevin Allen on the unresolved counts of the Indictment until the
appeal of their counts of conviction is resolved, and defendant Thamud Eldridge’s
request to adjourn the trial of Counts 16 and 17 of the Indictment, which is scheduled to
begin on January 24, 2017. (Dkt. Nos. 607, 675) For the following reasons, the1
Government’s motion to defer retrial of defendants Eldridge and Allen on the
unresolved counts of the Indictment is granted and defendant Eldridge’s request to
adjourn the trial of Counts 16 and 17 of the Indictment is also granted.
PROCEDURAL HISTORY AND PRIOR PROCEEDINGS
The Indictment charged defendants Thamud Eldridge and Kevin Allen with
various offenses including racketeering, racketeering conspiracy, murder in aid of
For purposes of the Instant Decision and Order, the Court assumes the parties’ familiarity with1
all prior proceedings, filings, and Decisions in this case.
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racketeering, kidnaping in aid of racketeering, Hobbs Act robbery, conspiracy to
distribute controlled substances, and various firearms offenses. (Dkt. No. 164)2
Defendant Eldridge was also charged, in Counts 16 and 17 of the Indictment, with
possession and discharge of a firearm in furtherance of drug trafficking and being a
felon in possession of a firearm. Counts 16 and 17 arose from an incident during which
defendant Eldridge allegedly fired shots at City of Buffalo Police Officer Joy Jermain.
Defendant Galen Rose was charged in the Indictment with possession with intent to
distribute marijuana, conspiracy to distribute marijuana, Hobbs Act robbery, and
discharge of a firearm causing death. On January 7, 2016, shortly before the trial in
this case was scheduled to begin, the Court issued a Decision and Order that, inter alia,
severed Counts 16 and 17 from the remainder of the Indictment. (Dkt. No. 530) The
primary reasons for the severance included the Court’s finding that Assistant United
States Attorney (“AUSA”) Joseph Tripi, the lead prosecutor in the case, may have
relevant testimony with respect to Counts 16 and 17 (hereinafter referred to as the
“Severed Counts”), and that an immediate trial as to the remaining counts of the
Indictment was necessary due to the age of the case and the amount of time
defendants had spent in pretrial detention. Id.
A trial of defendants Eldridge, Allen and Rose on Count 1 through Count 15 of
the Indictment commenced on January 13, 2016. On February 24, 2016, the jury
returned guilty verdicts on a number of counts as to defendants Eldridge, Allen and
A fourth defendant named in the Indictment, Kashika Speed, entered into a plea agreement with2
the Government on June 16, 2014. On October 2, 2014, defendant Speed was sentenced by the Court to
a period of incarceration of 192 months.
2
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Rose. However, the jury was unable to reach a verdict on the remaining counts, and
was thereafter discharged. The unresolved counts pertaining to defendant Eldridge
include: Count 11 (Hobbs Act robbery of Thedrus Laster); Count 12 (discharge of a
firearm causing the death of Thedrus Laster); Count 13 (murder of Sam Jones, Jr. in
aid of racketeering); Count 14 (Hobbs Act robbery of Sam Jones, Jr.); and Count 15
(discharge of a firearm causing the death of Sam Jones, Jr.). The unresolved counts
as to defendant Allen include: Counts 5 through 7 (kidnaping of Woodie Johnson in aid
of racketeering, Hobbs Act robbery of Woodie Johnson, and possession and
brandishing of a firearm in the course of kidnaping and robbing Woodie Johnson); and
Counts 13 through 15 (murder of Sam Jones, Jr. in aid of racketeering, Hobbs Act
robbery of Sam Jones, Jr. and discharge of a firearm causing the death of Sam Jones,
Jr.) (the unresolved counts as to both defendants Eldridge and Allen are hereinafter
referred to as the “Unresolved Counts”).3
On March 18, 2016, the Government moved to defer retrial of defendants
Eldridge and Allen as to the Unresolved Counts until resolution of the appeal of the
counts of conviction. (Dkt. No. 607) The Government asserted that “based upon the
lengthy prison sentences and mandatory minimum sentences associated with the
The unresolved counts pertaining to Galen Rose included: Count 11 (Hobbs Act robbery of3
Thedrus Laster) and Count 12 (discharge of a firearm causing the death of Thedrus Laster). However, on
June 29, 2016 the Government and Galen Rose entered into a Stipulation whereby defendant agreed to
waive his right to appeal his convictions as to Count 8 and Count 9, and that the relevant conduct proven
during the trial established the basis for an aggregate sentence of ten (10) years imprisonment as to those
counts. Defendant Rose and the Government further agreed to waive their right to appeal an aggregate
sentence of 120 months for the convictions of Counts 8 and 9. In exchange, the Government agreed to
dismiss Count 11 (Hobbs Act robbery) as to defendant Rose with prejudice and to dismiss Count 12
(discharge of a firearm causing death) without prejudice. Defendant Rose is scheduled to be sentenced
by the Court on October 6, 2016.
3
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counts of conviction as to defendants Thamud Eldridge and Kevin Allen, the
Government does not intend to retry...the unresolved counts if the counts of conviction
are affirmed on appeal.” (Dkt. No. 607, pg. 4) Specifically, the Government requested
that the Court: (1) hold the Unresolved Counts in abeyance pending the resolution of
the appeal of the counts of conviction; (2) grant a mistrial on the Unresolved Counts
and move forward with sentencing defendants Eldridge and Allen on the counts of
conviction; and (3) exclude the time from the Speedy Trial Act clock as to the
Unresolved Counts in the interest of justice pursuant to Title 18, United States Code,
Section 3161(h)(7)(A). (Dkt. No. 607)
On April 7, 2016, defendant Eldridge filed a response to the Government’s
motion. (Dkt. No. 619) He opposed the Government’s request to delay a retrial of the
Unresolved Counts pertaining to him pending the outcome of the appeal of his counts
of conviction. Id. A few days later, on April 11, 2016, defendant Eldridge’s trial
counsel, David R. Addelman, Esq., filed a motion to withdraw from the case. (Dkt. No.
620) Mr. Addelman indicated that during the trial defendant Eldridge made a statement
on the record expressing concerns with his defense and specifically that he believed
Mr. Addelman was unprepared because Mr. Addelman was assigned a year prior to
trial and a number of years after the case was indicted. Id. Mr. Addelman indicated,4
upon information and belief, that he believed Eldridge intended to argue, on appeal,
ineffective assistance of counsel during the trial. Id. On May 18, 2016, the Court
Defendant Eldridge’s prior counsel, Angelo Musitano, Esq., became unavailable to continue4
representing defendant in January 2015. On February 20, 2015, the Court assigned Mr. Addelman to
represent defendant.
4
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granted Mr. Addelman’s motion to withdraw, and assigned Kevin Spitler, Esq., to
assume representation of defendant Eldridge. At that time, the Court granted Mr.
Spitler’s request for a four-month extension of time to file post-verdict motions due to
his demanding upcoming trial calendar. The Court also scheduled a status conference
for Mr. Spitler to report back as to his position on the Government’s motion to defer trial
of the Unresolved Counts.
A status conference was held on June 29, 2016. A timeline for Rule 29 and Rule
33 motions was discussed. It was agreed by all parties that because of the withdrawal
of Eldridge’s previous counsel, his new counsel’s trial schedule, the complexity of the
case, and the need for new counsel to review the entire record and trial transcript and
confer with both Allen’s counsel and Eldridge’s previous counsel, defense post-trial
motions would be due January 17, 2017, Government responses would be due
February 6, 2017, and replies would be due February 20, 2017. Oral argument was
scheduled for March 10, 2017. Also during the June 29, 2016 status conference,
defendant Allen agreed to the Government’s motion to hold the Unresolved Counts in
abeyance until after the appeal of the counts of conviction is resolved. Defendant Allen
also agreed to exclude Speedy Trial Act time until resolution of the appeal. In light of
the fact that defendant Eldridge’s counsel was still new to the case and had not yet
reviewed the record in its entirety, another status conference was scheduled for counsel
to report back as to defendant Eldridge’s position on the Government’s motion to defer
trial of the Unresolved Counts. The Government requested, and the Court agreed, that
Speedy Trial Act time would be excluded through March 10, 2017, since defense
counsel would be using that time to prepare motions, prepare for sentencing on the
5
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counts of conviction and prepare for retrial in the event that one was necessary.
At a status conference on July 29, 2016, counsel for defendant Eldridge
indicated that instead of waiting for the resolution of the appeal of the counts of
conviction, defendant sought to move forward promptly with a trial as to both the
Unresolved Counts and the Severed Counts. After some discussion, it was agreed that
the Severed Counts should be tried first, since the trial would be shorter and would not
necessitate that Eldridge’s new counsel review all of the previous trial transcripts.
Based upon Mr. Spitler’s trial calendar, and with agreement of the parties, a trial date of
January 24, 2017 was selected for the Severed Counts. A further status conference
was scheduled for August 5, 2016, so as to discuss the trial date in the presence of
defendant Eldridge.
On August 5, 2016, the parties, including defendant Eldridge, appeared to
discuss the trial of the Severed Counts. At that time, defendant Eldridge indicated,
through his attorney, that he no longer wished to move forward with a trial of the
Severed Counts on January 24, 2017. Because he did not wish to put his family
through two additional trials, defendant Eldridge requested that the Court return to its
previously planned course of action, and specifically wait until the resolution of post-trial
motions and any appeals to the Second Circuit before scheduling a joint trial for both
the Unresolved Counts and the Severed Counts. The Government opposed this
request and indicated that it wanted to move forward with the trial of the Severed
Counts on the date of January 24, 2017. The Court reserved decision.
6
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DISCUSSION
Motion to Defer Trial of Unresolved Counts
The Second Circuit’s jurisdiction extends to appeals from “all final decisions of
the district courts.” 28 U.S.C. §1291. Further, the Supreme Court has instructed that
“final judgment in a criminal case means sentence.” United States v. Abrams, 137 F.3d
704, 707 (1998); accord Berman v. United States, 302 U.S. 211, 212-13 (1937). In
Abrams, the Second Circuit explained that it has, at times, rendered a decision on an
appeal from a conviction and sentence on certain counts of an indictment even though
other counts tried in the same trial remain unresolved as a result of a mistrial. 137 F.3d
at 707. The Abrams Court explained that “[a]lthough the litigation as framed in the
indictment may not yet have run its course, the counts of conviction have been resolved
and the sentence is ready for execution...[t]he unresolved counts have in effect been
severed, and will be resolved another time in a separate judgment.” Id.
In the interest of judicial economy and based upon the agreement of the
Government and defendants Eldridge and Allen, the Court grants the Government’s
motion to defer trial of the Unresolved Counts of the Indictment until the counts of
conviction have been fully resolved. Based upon the case law just cited, and in the
event that defendants’ post-trial motions are denied, the Court may proceed with
sentencing defendant Eldridge and defendant Allen on the counts of conviction and
those judgments may then be appealed to the Second Circuit. The Government has
represented that if the counts of conviction, which have the potential to carry long prison
sentences, are affirmed by the Second Circuit, they may not seek a retrial as to the
7
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Unresolved Counts for either defendant Eldridge or defendant Allen. Thus, deferring a
retrial has the potential to benefit the defendants, who may never face potential
conviction as to the Unresolved Counts, as well as the Government and the public by
saving the time and expense of another lengthy trial. Moreover, because both
defendants have been convicted of a number of counts which carry penalties of
incarceration, defendants are no longer in pretrial detention. Finally, both defendant
Eldridge and defendant Allen have consented to the Government’s motion and
therefore are not demanding an immediate trial as to the Unresolved Counts. For all of
these reasons, the Court finds that it is appropriate to defer the retrial of the Unresolved
Counts until the counts of conviction have been resolved through post-trial motions and
any subsequent appeals.
Upon request from the Government and after hearing from defendant Eldridge
and defendant Allen, the Court declares a mistrial as to the Unresolved Counts. See
Fed. R. Crim. P. 26.3; Arizona v. Washington, 434 U.S. 497, 508 (1978) (hung jury is
“classic basis” for declaring mistrial). With respect to the Speedy Trial Act clock, in the
event of a mistrial, a retrial must start 70 days from the date that “the action occasioning
the retrial becomes final.” See 18 U.S.C. §3161(e). In United States v. Rivera, the
Second Circuit found that the “action occasioning the retrial” was the district court’s
order of mistrial. 844 F.2d 916, 919 (2d Cir. 1988). In addition, based upon the
agreement of the parties and because deferring a retrial here will benefit the defendants
in that they may not be retried and the Government and the public in that it may save
the time and expense of another trial, the Court finds that time is further excluded from
the Speedy Trial Act clock pursuant to Section 3161(h)(7)(A) of Title 18 of the United
8
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States Code through January 17, 2017.5
Trial of Severed Counts
As stated above, a trial of the Severed Counts, which involves only defendant
Eldridge, was scheduled for January 24, 2017. However, defendant Eldridge recently
informed the Court, through his counsel, that he seeks an adjournment of that trial date
and would prefer to stand trial for the Severed Counts together with the Unresolved
Counts, in the event that the Government ultimately intends to move forward an all
outstanding counts. His primary justification for this request is that he does not want his
family to suffer through two separate trials, and his counsel argues that judicial
economy favors combining the trials. The Government opposes the request for an
adjournment.
Trial courts have “broad discretion” in both civil and criminal cases to grant or
deny adjournments. Morris v. Slappy, 461 U.S. 1, 11 (1983). Here, the Court is in
agreement with defendant Eldridge that it is illogical to proceed on two separate tracks.
The Unresolved Counts and the Severed Counts are part of the same Indictment. The
Government may seek to retry the Unresolved Counts in the future, depending upon
the outcome of defendants’ post-trial motions and appeals. Indeed, in the interest of
judicial economy and conserving Government resources, the trials of the Unresolved
Counts and the Severed Counts should be combined. Likewise, if the counts of
conviction are affirmed and defendant Eldridge is sentenced to a lengthy term of
January 17, 2017 is the date for the filing of post-trial motions as to the counts of conviction. At5
that time, time may be further excluded from the Speedy Trial Act clock for purposes of determination of
those motions and/or an appeal to the Second Circuit.
9
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imprisonment, the Government may elect not to retry either the Unresolved Counts or
the Severed Counts. Thus, waiting for a final resolution of the counts of conviction
before proceeding as to either the Unresolved Counts or the Severed Counts may save
defendant, the Government, and the Court, the time, energy and expense of any
additional trial. In the event that a trial occurs and in the event the Court orders Mr.
Tripi to appear as a witness, Assistant United States Attorney Megan Tokash, who
served as second chair during the initial trial, is certainly capable of trying the case.6
Indeed, there has been no showing that either the Government or defendant Eldridge
would suffer prejudice from a joint trial of the Unresolved Counts and Severed Counts.
See United States v. Panza, 750 F.2d 1141, 1149 (2d Cir. 1984) (explaining that
prejudice must be “sufficiently severe to outweigh the judicial economy that would be
realized by avoiding multiple lengthy trials”). Finally, as previously stated, defendant
Eldridge has not requested an immediate trial, and this is not a situation where he is
detained only because the Severed Counts remain unresolved. In fact, defendant
Eldridge has already been convicted, following a jury trial, of a number of counts in the
Indictment and is facing a substantial term of incarceration. For all of these reasons,
the Court grants defendant Eldridge’s request to adjourn the trial of the Severed
Counts.
In addition, deferring a trial of the Severed Counts will benefit defendant Eldridge
in that he will only face one additional trial as opposed to two, and there is a possibility
that the Government may not seek to try the Severed Counts at all. Deferring a trial of
During the status conference on August 5, 2016, the Government indicated that Ms. Tokash will6
likely serve as first chair during both potential trials.
10
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the Severed Counts will also benefit the Government and the public in that it will save
the time and expense of at least one if not two additional trials. Therefore, the Court
finds that time to try the Severed Counts is also excluded from the Speedy Trial Act
clock pursuant to Section 3161(h)(7)(A) of Title 18 of the United States Code through
January 17, 2017.
CONCLUSION
For the foregoing reasons, the Government’s motion to defer retrial of the
Unresolved Counts is granted, and defendant Eldridge’s request to adjourn the January
24, 2017 trial of the Severed Counts is granted. Also for the reasons stated above,
time is excluded from the Speedy Trial Act clock with respect to the Unresolved Counts
and the Severed Counts through January 17, 2017.
SO ORDERED.
____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: October 4, 2016
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