MEMORANDUM & ORDER

TABLE OF CONTENTS

I. BACKGROUND ..................................................................................................................... 2

A. The Indictment ................................................................................................................. 2

B. The Evidence .................................................................................................................... 5

1. Conspiracy to Murder Crips ......................................................................................... 6

2. Murder of Courtney Robinson ...................................................................................... 7

3. Murder of Brent Duncan ............................................................................................. 10

4. Conspiracy to Rob Jewelry Stores .............................................................................. 11

5. Marketplace Website Robbery Conspiracy ................................................................ 17

6. Attempted Murder of Louis Ivies ............................................................................... 21

7. Cellphone Robberies and Conspiracy to Rob and Murder of Dasta James ................ 23



C. Defense Case .................................................................................................................. 26

D. Verdict and Post-Trial Motions ...................................................................................... 26 II. RULE 29 MOTIONS FOR ACQUITTAL ............................................................................ 27

A. Rule 29 Legal Standard .................................................................................................. 27

B. Ashburn's Rule 29 Motion ............................................................................................. 29

1. Governing Law ........................................................................................................... 30

2. Application ................................................................................................................. 31



C. Laurent's Rule 29 Motion .............................................................................................. 33

1. Governing Law ........................................................................................................... 34

2. Application ................................................................................................................. 35



D. Merritt's Rule 29 Motion ............................................................................................... 39 III. RULE 33 MOTIONS FOR A NEW TRIAL ......................................................................... 40

A. Rule 33 Legal Standard .................................................................................................. 40

B. Ashburn's Rule 33 Motion ............................................................................................. 42

1. Exclusion of Impeachment Evidence ......................................................................... 42

2. Admission of Testimony Regarding Protective Order ............................................... 54

3. Denial of Request for Self-Defense Instruction ......................................................... 60

4. Exclusion of Children from Jury Deliberation and Verdict ....................................... 65



C. Laurent's Rule 33 Motion .............................................................................................. 73

1. Exclusion of Unavailable Witness Statements and Denial of Request for Missing Witness Instruction ..................................................................................................... 73

2. Prejudicial Misjoinder ................................................................................................ 89



D. Merritt's Rule 33 Motion ............................................................................................... 94

1. Admission of Modified Statements to Law Enforcement .......................................... 95

2. Consistency of Jury Verdict ....................................................................................... 97

3. Effect of Media Coverage ........................................................................................... 99

4. Treatment of Counsel ............................................................................................... 104



IV. CONCLUSION ................................................................................................................... 111

On March 17, 2015, Defendants Yasser Ashburn, Jamal Laurent, and Trevelle Merritt were convicted by a jury of multiple offenses charged in the Fifth Superseding Indictment. Each Defendant now moves under Federal Rule of Criminal Procedure 29 for a judgment of acquittal with respect to certain counts, and under Rule 33 for a new trial in the interests of justice. For reasons that follow, Defendants' motions are DENIED in their entirety.

I. BACKGROUND

A. The Indictment

On January 4, 2015, Defendants were charged in a Fifth Superseding Indictment (the "Indictment") with racketeering, racketeering conspiracy, and several related crimes. (Dkt. 271.) The Indictment charged Defendants, as members of an association-in-fact enterprise, the Six Tre Outlaw Gangsta Disciples Folk Nation ("Six Tre" or "Folk Nation"), with conducting and conspiring to conduct the affairs of that enterprise through a pattern of racketeering activity from April 2008 through October 2011. (Indictment ¶ 8.) The Indictment alleged that the purposes of Six Tre included: "Promoting and enhancing the prestige, reputation and position of the enterprise with respect to rival criminal organizations"; "Preserving and protecting the power, territory and criminal ventures of the enterprise through the use of intimidation, threats of violence and acts of violence, including assault and murder"; "Keeping victims and rivals in fear of the enterprise and its members and associates"; and "Enriching the members and associates of the enterprise through criminal activity, including robbery and narcotics trafficking." ( Id. ¶ 3.)

Defendants were each charged with racketeering (Count One) and racketeering conspiracy (Count Two), on the basis of the following twelve predicate racketeering acts:

Racketeering Act 1 : conspiracy to murder members of the Crips gang in or about and between April 2008 and October 2011 (Defendants Ashburn, Laurent, and Merritt);



Racketeering Act 2 : murder of Courtney Robinson on or about April 20, 2008 (Defendant Ashburn);



Racketeering Act 3 : conspiracy to rob employees of jewelry stores in or about and between January 2009 and August 2010 (Defendant Laurent);



Racketeering Act 4 : murder of Brent Duncan on or about June 19, 2010 (Defendant Laurent);



Racketeering Acts 5(A) and (B) : conspiracy to rob individuals solicited over the Internet via marketplace websites in or about and between June 2010 and October 2010 (Defendant Laurent);



Racketeering Acts 6(A) and (B) : conspiracy to rob Sarah McNeil on or about June 30, 2010 (Defendant Laurent);



Racketeering Act 7 : attempted murder of Louis Ivies on or about July 7, 2010 (Defendant Laurent);



Racketeering Acts 8(A) and (B) : conspiracy to rob Cameron Mo on or about July 7, 2010 (Defendant Laurent);

Racketeering Acts 9(A) and (B) : conspiracy to rob Paul Senzamici on or about July 25, 2010 (Defendant Laurent);



Racketeering Act 10 : robbery of Keith Benjamin on or about January 12, 2011 (Defendant Merritt);



Racketeering Act 11 : robbery of Kareem Clarke on or about January 14, 2011 (Defendant Merritt);



Racketeering Acts 12(A) and (B) : conspiracy to rob and felony murder of Dasta James on or about January 28, 2011 (Defendant Merritt).



Id.

The Indictment identified the individual victims of the crimes charged in Racketeering Acts 6 through 11 as "John Does."

¶¶ 9-31.)

In addition to the racketeering counts, Defendants were also charged in twelve additional counts predicated on the same conduct underlying the racketeering acts, as follows:

Count Three : unlawful use of firearms in or about and between April 2008 and October 2011 (Defendants Ashburn, Laurent, and Merritt);



Count Four : murder in-aid-of racketeering of Courtney Robinson on or about April 20, 2008 (Defendant Ashburn);



Count Five : murder in-aid-of racketeering of Brent Duncan on or about June 19, 2010 (Defendant Laurent);



Count Six : assault with a dangerous weapon in-aid-of racketeering of Louis Ivies on or about July 7, 2010 (Defendant Laurent);



Count Seven : unlawful use of a firearm on or about July 7, 2010 (Defendant Laurent);



Count Eight : Hobbs Act robbery conspiracy (employees of jewelry stores) in or about and between January 2009 and August 2010 (Defendant Laurent);



Count Nine : Hobbs Act robbery conspiracy (marketplace websites) in or about and between June 2010 and October 2010 (Defendant Laurent);



Count Ten : unlawful use of a firearm in or about and between June 2010 and October 2010 (Defendant Laurent);

Count Eleven : Hobbs Act robbery conspiracy (Dasta James) on or about January 28, 2011 (Defendant Merritt);



Count Twelve : attempted Hobbs Act robbery (Dasta James) on or about January 28, 2011 (Defendant Merritt);



Count Thirteen : unlawful use of a firearm on or about January 28, 2011 (Defendant Merritt);



Count Fourteen : causing death through use of a firearm on or about January 28, 2011 (Defendant Merritt).



Id.

¶¶ 35-50.)

B. The Evidence

This trial involved eleven days of testimony, which comprises nearly 2,500 pages of the transcript. In this section, the court outlines only those facts relevant to adjudication of Defendants' post-trial motions.

The Government's evidence at trial included the testimony of more than 35 witnesses, including three cooperating witnesses: Kevin Bell, Keegan Estrada, and Joelle Mitchell. Bell is a former member of Six Tre. Estrada was a close associate of Defendant Laurent. Mitchell was an acquaintance of Laurent's who lived in Laurent's neighborhood and witnessed one of the shootings with which Laurent was charged. To corroborate the testimony of these witnesses, the Government introduced testimony from other witnesses, forensic evidence, cell-site records, and other evidence. As an initial matter, there was overwhelming evidence that each Defendant was a member of Six Tre. ( See, e.g. , Trial Tr. ("Tr.") at 320-21 (Kevin Bell testimony); id. at 794-96, 800-04 (Matthew Patcher testimony).) Moreover, the Government presented extensive evidence of Defendants' underlying conduct, which fell within seven primary subject areas, outlined as follows.

The evidence also established that Six Tre existed and affected interstate and foreign commerce. ( See, e.g. , Trial Tr. ("Tr.") at 486-89, 493-94 (Kevin Bell testimony).)

1. Conspiracy to Murder Crips

First, the jury found that the Government proved that Defendants participated in a conspiracy to murder members of the Crips gang, as a part of the pattern of racketeering activity alleged in the Indictment. Cooperating witness Kevin Bell testified that when he was initiated into Six Tre, he understood that he was agreeing to take on the rivalries of the gang's members, and that included doing "[e]verything up to killing" the gang's rivals. ( Id. at 517-18.) The initiation ceremony and pledge was led by Defendant Ashburn, who was one of the three "Big Homies," or leaders of the gang. ( Id. at 328, 459.) According to Bell, the Big Homies had "all the power and all the authority" in the gang, and could "call the shots." ( Id. at 376-77.) Among the three Big Homies, Ashburn was at the top. ( Id. at 381.) Ashburn and "D-Bloc" (one of the other Big Homies) had to keep each other informed of what they were doing and of anything going on in the gang. ( Id. at 459.)

Bell further testified that Six Tre was initially allied with a set of the Crips gang known as "Eight Tre Crips," but that in August 2008, the two gangs became rivals. According to Bell, the rivalry began after "Duls," a member of the Six Tre leadership, was robbed while he was in the Vanderveer housing projects, an area in Brooklyn where the Eight Tre Crips were based. ( Id. at 536-38, 607-10.) That day, Bell, Duls, Defendant Merritt, D-Bloc, "Rahleek," "Gunny," and others went to the Vanderveer projects looking for Crips. Bell testified that the plan was "violence." ( Id. at 538.) After looking around and failing to find their target, Bell and some of the others left, but Duls stayed with another group. The next day, Duls told Bell that he found the Crips member who robbed him, known as "KO," and shot him in the head. ( Id. at 542-43, 609-10.)

The Government offered into evidence the death certificate of Jameel Butler, also known as "KO," who was found murdered on the rooftop of 1413 New York Avenue, a building in the Vanderveer projects, in the early morning of August 23, 2008. Butler had been shot at close range in the forehead. (Tr. at 791-93.)

Bell testified that the violent rivalry between Six Tre and the Crips continued after that date. ( Id. at 543-45.) Although Bell was arrested and incarcerated in 2009, the Government presented evidence that the gangs remained rivals through 2010, when Defendant Laurent, as a member of Six Tre, killed and attempted to kill individuals whom he believed to be Crips. Cooperating witness Keegan Estrada testified that he was present when Laurent learned that the leader of the Eight Tre Crips had attempted to shoot Six Tre member Ricky Hollenquest. According to Estrada, Laurent stated, "All Crips must die." Laurent subsequently told Estrada that he and Hollenquest had shot at two Crips members in the Vanderveer projects. He also told Estrada that he believed Brent Duncan (whom the jury found Laurent shot and killed on June 19, 2010) and Louis Ivies (whom—the evidence showed—Laurent shot five times on July 7, 2010) were Crips members. ( Id. at 1626-31, 1686-88.)

2. Murder of Courtney Robinson

Second, the Government presented evidence that Defendant Ashburn murdered Courtney Robinson during the early morning hours of April 20, 2008, in the hallway outside of witness Coretta Thompson's apartment. This evidence included the testimony of two witnesses who were present at the time of the murder: Thompson and cooperating witness Kevin Bell. Thompson testified that she knew Ashburn as "Indio." ( Id. at 194-96, 234.) She had previously seen him at the Ebbets Field Apartments—in the patio area in front of the building, hanging out with individuals she knew as "D-Bloc" and "Cooj," and down the hall from her apartment, where Ashburn's girlfriend lived. On the night of April 19, 2008, Thompson hosted a birthday party for her niece Melissa Davis at her apartment, number 7O. During the party, Ashburn and D-Bloc showed up. ( Id. at 205-07.) Thompson observed that Ashburn was filming with a video camera. ( Id. at 207-08.) Ashburn asked Thompson for food and then left. ( Id. )

Thompson testified that later that evening, her boyfriend's nephew (known as "Omar") arrived at the party, along with her boyfriend's brother, Courtney Robinson (known as "Kirkie"). ( Id. at 209.) Shortly thereafter, Omar argued with Thompson's boyfriend in one of the bedrooms, and then went into the hallway inside the apartment. ( Id. at 210.) Thompson observed Omar hug "Dewan," who was the boyfriend of Thompson's daughter. According to Thompson, a friend of Omar's then punched Dewan. ( Id. at 210-11, 248.) A fight ensued. Thompson testified that Cooj broke a bottle and chased Omar around the kitchen. ( Id. at 212.) The fight spilled out into the hallway outside Thompson's apartment, where a group of individuals were "stomping," "beating," and "kicking" Omar, who was on the floor. ( Id. at 212-13.) As Omar was being beaten, Thompson and her daughter attempted to pull Omar back into the apartment. At the same time, Courtney Robinson, wielding a bottle, went into the hallway to try to defend Omar, his nephew. ( Id. at 213-14, 235-36.) Omar managed to get back into the apartment. However, the individuals who had been assaulting Omar took the bottle from Robinson and began beating Robinson with it. ( Id. at 215.)

Thompson testified that as Robinson went into the hallway and Omar scrambled into the apartment, she saw Ashburn, D-Bloc, Cooj, and others run down the hallway toward an incinerator on the floor. Soon thereafter, they ran back into the crowd where Robinson was being beaten. Second later, Thompson then heard a gunshot and went back into her apartment. When Thompson looked back out into the hallway, she saw Robinson sliding down the wall in the hallway and observed that he had been shot. ( Id. at 213-18.) Robinson was eventually lying face down in the hallway. ( Id. at 218.) The man Thompson knew as Cooj then walked back into her apartment to retrieve his jacket. As he left, he looked at Robinson, and then remarked, "it's the wrong somebody we shot." ( Id. at 219.)

The incinerator was near a stairwell that was also down the hallway from Thompson's apartment. (Tr. at 183-85.) Bell testified that Six Tre stored firearms in that stairwell. ( Id. at 523.)

Bell testified that he attended the party at Thompson's apartment that night. In particular, he testified that Ashburn, who Bell knew as "Swerve," among other names, was at the party. At some point during the party, Ashburn told Bell and a group of others who were hoping to become members of Six Tre to go into one of the back bedrooms of Thompson's apartment. ( Id. at 513-14.) In the bedroom, Ashburn led the initiates—including Bell—in a pledge, and inducted them into the gang. After the initiation, Bell rejoined the party. ( Id. at 518.) He then saw Dewan (who subsequently became a Six Tre member) fighting with another "kid." The fight died down, but then started again when the kid broke a bottle in the kitchen. Bell attacked the kid, and D-Bloc and others joined in to help him. The fight spilled out of the apartment, and "numerous" people were jumping on, and punching and kicking the kid, who was on the floor in the doorway to the apartment. ( Id. at 519-22.) As Bell was walking out of the apartment and down the hallway, he passed Ashburn, who was going in the other direction, toward the apartment. As Ashburn passed, Bell observed the nose of a gun sticking out from the sleeve of Ashburn's sweatshirt. ( Id. at 521-23.) Moments later, Bell heard a gunshot. Bell took the stairwell to his girlfriend's apartment, where he stayed the rest of the night. ( Id. at 523-24.)

The Government also presented expert testimony from medical examiner Dr. Rachel Lange regarding the results of the autopsy conducted on Robinson. Lange testified that Robinson had been killed by a bullet fired into the left side of his lower back at close range. According to Dr. Lange, the autopsy found black residue, or soot, outside and within the gunshot wound, which was consistent with a "contact entrance wound." ( Id. at 993-96.) She explained that a contact entrance wound is one where the muzzle of the gun is very close to the skin at the time it is fired. ( Id. at 996.) Lange testified that after the bullet entered the body, it went through the muscles of the back, the body cavity, major arteries delivering blood to the legs, a major vein draining the body of blood, the small intestine, and the mesentery (which is the tissue that attaches the intestine to the body). ( Id. ) She testified that the autopsy also revealed a contusion, or blunt injury, to Robinson's scalp. ( Id. at 997-98.)

3. Murder of Brent Duncan

Third, the jury found that Defendant Laurent murdered Brent Duncan on June 19, 2010. Duncan's cousin, Antoinique Bedward, testified that on the night Duncan was murdered, she, Duncan, and a group of friends attended a party on Schenectady Avenue and Avenue D. ( Id. at 891-93.) Toward the end of the party, they began to leave. As they got to the car, Bedward heard gunshots and got into the car. ( Id. at 897-98.) When the shooting stopped, she got out of the car, tried to get help, and then saw that Duncan had been shot. Sometime thereafter, an ambulance came and took Duncan away. ( Id. at 899-900.)

Cooperating witness Joelle Mitchell testified that Laurent shot Duncan that night. Mitchell explained that he first met Laurent in approximately 2006, while playing basketball in the East Flatbush neighborhood where they both lived. ( Id. at 1010.) Mitchell did not see Laurent for a period beginning in 2009. In 2010, Laurent returned to the neighborhood. Mitchell observed that Laurent had joined Six Tre. ( Id. at 1013-16.) One night during the summer of 2010, Mitchell went to his friend's home on Schenectady Avenue with a group of friends. ( Id. at 1033.) After leaving his friend's home, Mitchell and his friends walked toward a party taking place outside a home further up Schenectady Avenue, between Foster Avenue and Avenue D. ( Id. at 1034-35.) At the party, Mitchell saw Laurent with a group of other people he recognized. ( Id. at 1035.) Soon after arriving at the party, Mitchell saw "a little commotion between [Laurent] and this other guy," and then watched as the other individual walked toward a Maxima parked on Schenectady Avenue facing toward Foster Avenue. ( Id. at 1037-38.) The individual got into the driver's seat. Then Mitchell saw Laurent run out into the middle of the street and start firing shots at the individual. ( Id. at 1037.) Laurent and four other men with him then ran off toward Foster Avenue. ( Id. at 1039.) Mitchell looked into the car and saw that blood was dripping out of the victim's mouth. ( Id. )

The Government also presented evidence that on June 21, 2010—two days after Duncan was murdered—police responded to a shots-fired call at 1445 Schenectady Avenue, a block away from the scene of the Duncan murder, and the address where Laurent was living at the time. ( Id. at 1134-35, 1151.) After arriving on the scene, police discovered that a shot had been fired from Laurent's room—through an adjoining wall—into the room of another tenant. ( Id. at 1136-37.) After entering Laurent's room, police recovered a handgun and ammunition that had been stored within the box spring of the bed. ( Id. at 1139, 1153-56.) The gun was subsequently sent to the New York City Police Department ("NYPD") firearm analysis section, where it was tested. Expert witness Salvatore LaCova testified that test fires from the gun matched ballistics recovered from the scene of the Duncan murder "to a reasonable degree of ballistic certainty." ( See generally id. at 1156-1206.)

Furthermore, cooperating witness Keegan Estrada testified that the day after Duncan was murdered, Laurent told Estrada that he had shot someone the previous night on Schenectady Avenue, after the victim had gotten into his car. ( Id. at 1629-31.)

4. Conspiracy to Rob Jewelry Stores

Fourth, the jury found that members of Six Tre—and, specifically, Laurent—were involved in a conspiracy to rob jewelry stores from January 2009 to August 2010. The Government presented evidence of five different jewelry store robberies either committed or attempted by members of Six Tre during that time period. Bell testified that these robberies were organized by Devon Rodney (known as "D-Bloc"), who would also determine how much money each participant received if the robbery were successful. ( Id. at 486-89.) Bell stated that he first learned about the jewelry store robberies in late 2008 or early 2009, when Rodney came to Bell's home after committing a robbery. ( Id. at 487.) Rodney told Bell that that he had committed a robbery with Six Tre member Rahleek Odom, but Odom had run out of the store early, and Rodney was trying to decide how much money Odom would receive. ( Id. at 487-88.)

Bell testified that he was personally involved in two attempted robberies. The first occurred when he went with Rodney, Six Tre member Haile Cummings (known to Bell as "Ruga"), and a driver—known as "Shake," who was not a Six Tre member—to rob a jewelry store in Manhattan. ( Id. at 488-89.) Shake drove them to the jewelry store and Rodney, Bell, and Cummings entered the store. ( Id. at 490.) Bell testified that he had a sledgehammer under his sleeve when he entered the store. ( Id. ) However, upon entering the store, Bell observed a large number of people, including armed officers, in the store. ( Id. ) He described looking at Rodney, who shook his head "no," and they all left the store without attempting the robbery. ( Id. )

Bell testified that he next attempted a jewelry store robbery on May 18, 2009—an attempt that ultimately led to his arrest. ( Id. at 491.) The night before the robbery, Rodney went to Bell's home and told Bell that they were going to rob a jewelry store the next day, and instructed Bell to go to Cummings's apartment in the morning. ( Id. ) The next morning, May 18, 2009, Bell went to Cummings's apartment, which was in Ebbets Field. ( Id. ) Rodney arrived later and told them, "let's go." ( Id. at 492.) Bell and Cummings went with Rodney to a green caravan, which was waiting outside. ( Id. ) Bell, Cummings, Ricky Hollenquest, and Darius King—all members of Six Tre—went into the van. ( Id. ) The van was driven by an individual known as "Trinni," who was not a member of Six Tre. ( Id. ) Rodney got into a separate car with Shake. ( Id. at 492-93.) Shake had selected the store for the robbery, which was a Lee Perla jewelry store located in New Jersey. ( Id. at 493.) Bell testified that they were instructed to walk into the store, go to the second showcase, and take the Rolex and Cartier watches. ( Id. at 493-94.) If the robbery was successful, they were supposed to give the watches to Rodney, who would then determine their cut. ( Id. at 494.) Bell, Cummings, Hollenquest, and King then entered the store. ( Id. at 495.) Bell had a sledgehammer and started to smash the glass in the display case. ( Id. ) Police came to the scene and Bell was arrested in the parking lot, where he was trying to catch a ride back to New York City to evade the police. ( Id. at 495-96.)

The Government presented testimony from other witnesses who were present for the Lee Perla robbery that Bell described. David Goo, an employee at the jewelry store, described observing four men enter the store and start smashing the glass cases where the Rolex watches were kept. ( Id. at 1318-24; Gov't Ex. 251.) The jury was also shown surveillance videos from the day of the robbery, photographs of the crime scene, and the sledgehammers used to smash the glass cases. (Tr. at 1318-24; 1336-42; Gov't Exs. 251, 252, 254.) Sergeant Gerard Dargan of the Bergen County Prosecutor's Office testified that he was present at the Riverside Square Mall on May 18, 2009. (Tr. at 1329-30.) He observed three men exiting the Lee Perla jewelry store and he began to chase them. ( Id. at 1331.) As he was chasing them, he observed a blue minivan on the curb waiting with a black male driver. ( Id. ) He continued to chase one of the individuals, who he ultimately detained and arrested. ( Id. at 1331-32.) The individual he arrested was Haile Cummings. ( Id. at 1333.)

Keegan Estrada provided additional testimony concerning the jewelry store robberies committed by members of Six Tre. Specifically, Estrada testified that Laurent was involved in two jewelry store robberies in the summer of 2010. ( Id. at 1633.) At that time, Laurent told Estrada that Laurent "had to go out-of-state to put some work in" for Rodney. ( Id. at 1634.) Laurent told Estrada that he was going with Rodney. ( Id. ) The next day, Estrada spoke with Laurent again about this robbery. Laurent told Estrada that he went to Connecticut either to a jewelry store or a pawn shop, smashed cases, and stole jewelry, including watches. ( Id. at 1634-35.) Laurent told Estrada that Rodney determined the amount of money that Laurent received for participating in the robbery. ( Id. at 1635.) In July or August 2010, Laurent also told Estrada about another robbery that he committed. ( Id. ) Laurent told Estrada that he—along with Ricky Hollenquest and other individuals—committed a robbery of a jewelry store in Manhattan. ( Id. at 1636.) Laurent had received a watch as a part of his cut, and asked Estrada to help him sell the watch, which Estrada did. ( Id. at 1636-37.)

The Government presented extensive evidence to corroborate Laurent's involvement in the first jewelry store robbery that Estrada described. The evidence showed that this robbery occurred on July 25, 2010, at Lux, Bond & Green in West Hartford, Connecticut. On the day of the robbery, Jane Dowling was standing outside when she observed two men rush out of Lux, Bond & Green and enter a waiting car. ( Id. at 1359-60.) She wrote down the car's license plate number and provided it to a police officer who had responded to the scene of the robbery. ( Id. ) West Hartford Police Department ("WHPD") Officer William Norton testified that he responded to a radio call on July 25, 2010, regarding a robbery at Lux, Bond & Green. ( Id. at 1357-58.) After he entered the store, he was approached by Dowling, who provided him with license plate number EYD-2881, as the license plate of the car she had observed outside of the store. ( Id. at 1359-60.)

Steven Lumb, an employee of Lux, Bond & Green, testified that he observed two individuals enter the store and begin smashing the glass cases. ( Id. at 1347-50.) Mark Puglielli, a retired WHPD detective, testified that he responded to the scene on July 25, 2010. ( Id. at 1362-63.) He took photographs of the scene, as well as the sledgehammer that was dropped outside of the store. ( Id. at 1364-65.) The photographs showed, among other things, the smashed display cases where the high-end watches were kept in the store. ( E.g. , id. at 1368.) Detective Puglielli also testified that he recovered surveillance video of the robbery, which was entered into evidence and shown to the jury. ( Id. at 1371-75.) The video showed two individuals dressed in dark clothes enter the store. (Gov't Ex. 507.) One of the individuals had a sledgehammer and smashed the display cases, and then appeared to yell at the individuals in the store. ( Id. ) The other individual had a bag, and was putting watches from the smashed display cases into the bag. ( Id. )

Detective Puglielli testified that he recovered a ten-pound sledgehammer from outside of the store, which appeared to be same sledgehammer depicted in the surveillance video. (Tr. at 1374-77.) He testified that he then submitted the sledgehammer to a laboratory for DNA and fingerprint testing. ( Id. at 1377.) Steven Bryant, a forensic science examiner from the Connecticut Division of Scientific Services Forensic Laboratory, testified as an expert in the field of DNA comparison analysis. ( Id. at 1430-32.) Bryant testified that he conducted a comparison of DNA recovered from two spots on the sledgehammer and a DNA swab sample obtained directly from Laurent. ( Id. at 1447-49.) He testified that Laurent was determined to be a contributor to both of the DNA profiles recovered from the sledgehammer. ( Id. )

Detective Puglielli also testified that less than a week after the robbery at Lux, Bond & Green, he learned that a 1998 Nissan Maxima with the license plate number EYD-2881, which had been reported stolen, was recovered from 25 Elm Place in Brooklyn, and was moved to an NYPD impound lot in Brooklyn. ( Id. at 1380.) On July 1, 2010, Detective Puglielli went to the impound lot with the owners of the vehicle, Bertha and Euclid Boyce. ( Id. ) After receiving their consent, Detective Puglielli photographed the vehicle and swabbed it for DNA, and recovered a number of items, including a piece of paper with the phone number (917) 214-4017 written on it. ( Id. at 1380-85, 1393-95.) Records obtained from T-Mobile showed that this telephone number was subscribed to the name Peter Laurent, Defendant Laurent's father, and that the account had been opened on June 24, 2010, the day before the Lux, Bond & Green robbery. (Gov't Ex. 555; see also Tr. at 1395.)

Expert witness Steven Bryant also conducted a comparison between DNA recovered from the handle of the right rear car door and a DNA sample obtained directly from Laurent, and found that Laurent could not be eliminated as a contributor to that DNA profile. ( Id. at 1449-50.)

Detective Puglielli further testified that he interviewed Laurent, while he was incarcerated at Riker's Island, and Laurent claimed that he was working at Brooklyn College on the day of the robbery. (Tr. at 1395-98.) Detective Puglielli subsequently obtained employment records from Brooklyn College, which indicated that in fact, Laurent had called in sick on July 25, 2010. ( Id. at 1406-10.) In addition, the jury listened to a voicemail recording dated July 25, 2010, at 5:02 a.m., during which Laurent called Brooklyn College and stated that he was sick and would not be coming to work that day. (Gov't Ex. 506; see also Tr. at 1410-11.) Telephone records associated with the number (917) 214-4017 also reflected that a call was made to Brooklyn College at 5:02 a.m. that day. (Tr. at 1412-13.) Cell site records for that number further established that it traveled from Brooklyn to the vicinity of West Hartford, Connecticut the same day. ( See id. at 2260-70; Gov't Ex. 818.)

Finally, the Government presented an inventory of items stolen during the robbery. ( Id. at 1377-78.) Laurent, along with his co-conspirators, stole approximately 20 watches, worth a total value of $583,000. ( Id. at 1379-80.)

5. Marketplace Website Robbery Conspiracy

Fifth, the Government presented evidence of eight robberies or attempted robberies that occurred between June and October 2010. The Government's evidence reflected that Laurent participated in four armed robberies and one attempted robbery between June and August 2010.

Keegan Estrada testified that in June 2010, Laurent suggested that they use Craigslist to rob people. ( Id. at 1646.) They would contact their victims through Craigslist—or a similar website, Sole Collector—pretending to be legitimate buyers to lure them to their neighborhood in Brooklyn. ( Id. at 1638, 1649.) Specifically, they would attempt to have the buyers come to a location on 42nd Street between Foster and Farragut, near an alleyway where they could hide prior to the robbery. ( Id. at 1650.) When the sellers arrived, Estrada would pretend to be the buyer, and then Laurent or Six Tre member Ricky Hollenquest would approach with a weapon and rob the sellers. ( Id. at 1638.) A weapon—either a knife or a gun—was used in every robbery. ( See id. at 1638.) Estrada and Laurent created an email address, "stormwatch1985@gmail.com," to use for the robberies. ( Id. at 1648.) Estrada would use the name "Mike Martinez" in conversing with victims. ( Id. at 1649.)

The first attempted robbery occurred in June 2010. ( Id. at 1651-52.) Estrada and Laurent contacted an individual who was selling an iPhone through Craigslist. ( See id. at 1638, 1652.) The seller agreed to meet at the location on 42nd Street, but when they approached the car and both attempted to enter the car, the seller would not let Laurent into the car. ( Id. at 1652.) Estrada ended up giving the seller the money for the phone and taking the phone. ( Id. at 1652-53.) Laurent had a knife with him on that occasion. ( Id. at 1652.)

On June 30, 2010, Laurent—along with Estrada and Hollenquest—robbed Sarah McNeil and her then-boyfriend, Nicholas Goddard, at knifepoint outside of 668 East 42nd Street in Brooklyn. ( Id. at 1559.) McNeil testified that she placed an advertisement on Craigslist in order to sell an iPhone that she had recently purchased. ( Id. at 1490-91.) An individual using the name Michael Martinez with the email address "stormwatch1985@gmail.com" responded to her advertisement, and they agreed to meet at 668 East 42nd Street. ( Id. at 1491-92, 1494.) After McNeil and Goddard arrived at the location, McNeil called the individual she knew as "Mike" and told him that they were at the location. ( Id. at 1495-96.) McNeil testified that she then observed a thin, African-American male approach. ( Id. at 1496.) They began speaking about the phone, and then two individuals came across the street. ( Id. ) Both of these individuals were African-American men. ( Id. at 1497.) One of the individuals had a large knife, and they took the new phone as well as McNeil's personal phone. ( Id. ) McNeil described the individual with the knife as larger than the other two individuals; she stated that he was built more like a football player. ( Id. at 1497-98.) McNeil testified that the entire interaction with these individuals was less than two minutes, and she was focused on the knife almost the entire time. ( Id. at 1497-99.) Estrada testified that he pretended to be the buyer during this robbery, and that Laurent had a knife and robbed McNeil and her boyfriend. ( Id. at 1655-56.) After the robbery, Laurent gave Estrada the phone to sell, which he did. ( Id. at 1656.) Estrada then gave Laurent all of the money from the sale, and Laurent determined Estrada's cut, which was one-third of the total proceeds. ( Id. ) Estrada testified that it was understood that Laurent would determine the distribution of proceeds because the robbery scheme was Laurent's idea. ( Id. )

The next robbery took place on July 7, 2010, when Laurent—along with Estrada—robbed Cameron Mo, Brandon Mo, and Emily Wong at gun point at a gas station located at the corner of East 42nd Street and Farragut Road in Brooklyn. ( Id. at 1562.) Cameron Mo testified that he and his brother, Brandon, had advertised two iPhones for sale on a sneaker forum, known as an ISS forum or Sole Collector. ( Id. at 1511-12.) Mo was contacted by an individual with the user name "Marcc," who said he was interested in purchasing the phones. ( Id. at 1512-13.) They arranged to meet on July 7, 2010, at a gas station in Brooklyn. ( Id. at 1524.) Mo went to the gas station with his brother and Wong. ( Id. at 1524-25.) Mo testified that he and his brother were waiting by the trunk of the car when "Marcc" approached. ( Id. at 1525-26.) Mo described "Marcc" as an African-American, in his late teens or early twenties, with medium skin tone and a build on the slimmer side. ( Id. at 1526.) Soon after, Mo saw another individual running up to them, pointing a gun. ( Id. ) Mo testified that the individual with the gun appeared older than "Marcc" and had a stockier build and darker skin, but was about the same height. ( Id. ) He remembered that the individual with the gun was wearing black track pants. ( Id. ) The individual with the gun took the phones, and Brandon's phone (which was in the car), and ran away with "Marcc." ( Id. at 1527.) Estrada testified that he had pretended to be the buyer, approaching the Mo brothers by their car at the gas station. ( Id. at 1681-82.) Estrada also testified that Laurent had the gun during this robbery. ( Id. at 1681.)

On July 25, 2010, Laurent—along with Estrada—robbed Paul Senzamici at gunpoint outside of 668 East 42nd Street in Brooklyn. ( Id. at 1563-64.) Senzamici testified that he posted an advertisement on Craigslist to sell two pairs of Louis Vuitton sunglasses. ( Id. at 1539-40.) He received an email from "stormwatch1985" in response, and agreed to meet him in Brooklyn. ( Id. at 1540.) Senzamici arrived at the intended meeting spot, a residential area in Brooklyn, in a black Cadillac. ( Id. at 1541.) He testified that after he arrived, he was approached by two African-American males. ( Id. at 1541-42.) One of the individuals—the shorter of the two—had a gun. ( Id. at 1542.) They took his sunglasses, his cellphone, his jacket, and the black diamond earrings he was wearing. ( Id. at 1542-43.) Estrada testified that he and Laurent committed this robbery. ( Id. at 1688-89.) Estrada approached the car pretending to be the buyer, and Laurent approached with a gun and robbed the victim. ( Id. at 1689-90.) Estrada explained that Laurent had borrowed the gun that he used in the robbery from someone in Ebbets Field. ( Id. at 1689.) Estrada testified that Laurent took the man's earrings and that Laurent would frequently wear the earrings. ( Id. at 1690-91.)

Estrada further testified that he and Laurent committed one more robbery together in August 2010. ( Id. at 1691.) During this robbery, Estrada and Laurent pretended that they were selling items on Craigslist, and met their victims at a restaurant on McDonald Avenue near Church Avenue. ( Id. ) After Estrada and the victims entered the restaurant, Laurent came running in with a gun and Estrada ran out. ( Id. at 1691-92.) Laurent later told Estrada that he had hit one of the victims in the face with the butt of his gun. ( Id. at 1692.) They stole approximately $2,000 that day, and Laurent kept $1,500. ( Id. at 1692-93.) After this robbery, Laurent was no longer in the neighborhood, but Estrada committed two more attempted robberies and one successful robbery with Hollenquest. ( Id. at 1693-97.)

The final attempted robbery occurred on October 17, 2010. After the July 25, 2010, robbery, Senzamici posted a similar advertisement on Craigslist in the hopes of finding the individuals who had robbed him. ( Id. at 1543-44.) Once again, he received a response from the "stormwatch1985" email address. ( Id. at 1544.) He contacted the NYPD, who arranged for an undercover operation in order to arrest the individuals involved. ( Id. ) Senzamici was present for the operation, during which Estrada and Hollenquest were arrested. ( Id. at 1544, 1572.) Senzamici recognized Estrada as the individual without the gun during the previous robbery. ( Id. at 1545, 1572-73.) He did not recognize Hollenquest. ( Id. ) After the arrest, NYPD Detective Michael Hardman recovered a firearm that Hollenquest had thrown away as he attempted to flee. ( Id. at 1569-71.)

6. Attempted Murder of Louis Ivies

Sixth, the jury found that on July 7, 2010, Laurent attempted to murder Louis Ivies. Ivies was shot five times at the corner of Avenue D and Nostrand Avenue in Brooklyn. ( Id. at 1970-71.) The Government presented evidence of SPRINT reports reflecting 911 calls from July 7, 2010. ( See id. at 1774-78.) At approximately 10:25 p.m., a caller reported that a male had been shot in the vicinity of Avenue D and Nostrand Avenue in Brooklyn. ( Id. at 1776-77.) At approximately 10:28 p.m., another caller reported that the shooter had been wearing orange shorts and a white top. ( Id. at 1778.) Estrada testified that on the day he and Laurent robbed "two young Asian males" and "an Asian female"—July 7, 2010—Estrada had seen Laurent earlier in the day headed to either Brighton Beach or Coney Island Beach, wearing orange shorts and a white t-shirt. ( Id. at 1679-81.) Although Laurent put on dark pants for the robbery, when he and Estrada parted ways that evening after the robbery, Laurent had removed his pants and was wearing his orange shorts. ( Id. at 1680.)

Estrada further testified that after the robbery on July 7, 2010, he went to his mother's apartment, which was located near the corner of Nostrand and Avenue D. ( Id. at 1683.) Sometime between 10:00 p.m. and midnight, Estrada's stepfather picked Estrada up and drove them to his stepfather's apartment on Albany Avenue. ( Id. ) At the corner of Avenue D and Nostrand Avenue, Estrada observed flashing lights and a police presence near the Taste of the Tropics ice cream store. ( Id. at 1684.) Estrada testified that he then called Laurent to see if Laurent was okay, and Laurent told Estrada that he was okay and on his way home. ( Id. at 1684-85.) The next day, Estrada visited Laurent at Brooklyn College in order to give Laurent the money that he had received for selling the phones they had stolen the previous night. ( Id. at 1685-86.) Estrada and Laurent spoke about the shooting the night before, and Laurent told Estrada that Laurent had shot "Fifty." ( Id. at 1686-87.) Specifically, Laurent said that he saw Fifty, whom he recognized as a Crip, and greeted Fifty with a Crip handshake, pretending to be a Crip. ( Id. at 1687.) After speaking to Fifty for a minute or so, Laurent took out his gun and shot Fifty multiple times. ( Id. at 1687-88.)

NYPD Detective Kenneth Fung testified that on July 7, 2010, he responded to a report that a man had been shot at the corner of Avenue D and Nostrand Avenue. ( Id. at 1768.) He arrived at the scene at approximately 10:45 p.m. and conducted a canvass for witnesses and video surveillance. ( Id. at 1768, 1778.) Detective Fung found surveillance video in a nearby store and recorded the surveillance footage on his phone. ( Id. at 1779-80.) Corroborating Estrada's testimony, the video depicted a man—wearing a t-shirt and shorts—consistent in appearance with Laurent, who greeted Ivies and spoke to him in what appeared to be a friendly manner. ( See Gov't Ex. 604.) The video showed the two parting ways, at which point the man removed a gun from his waistband and ran after Ivies holding the gun in front of him. ( See id. ; Tr. at 1787.) NYPD Officer Daniel Smith testified that he recovered eight shell casings from the crime scene. (Tr. at 1804-05.)

The Government also presented cell site records corroborating Estrada's testimony that Laurent told Estrada he was at the beach earlier on the day of the shooting, and demonstrating that the phone used by Laurent was in the vicinity of the crime scene at the time the shooting took place. ( See Gov't Ex. 819(a)-(c).) The jury also heard evidence regarding the nature and extent of Ivies's wounds from Dr. Patricia O'Neill, who treated Ivies at Kings County Hospital that night. (Tr. at 1968-75.)

7. Cellphone Robberies and Conspiracy to Rob and Murder of Dasta James

Seventh, the jury found that during January 2011, Defendant Merritt committed a string of three robberies in and around Ebbets Field, the last of which ended in the death of Dasta James. First, Merritt robbed Keith Benjamin of his cellphone on January 12, 2011, as alleged in Racketeering Act 10. Second, Merritt robbed Kareem Clarke of his cellphone on January 14, 2011, as alleged in Racketeering Act 11. Third, Merritt, along with two co-conspirators, conspired and attempted to rob Dasta James on January 28, 2011—a robbery during which James was shot in the back of the head and killed, as alleged in Racketeering Acts 12 and Counts Eleven and Twelve.

With respect to the first robbery, the victim, Keith Benjamin, testified that he had known Merritt since he was roughly seven to nine years old, and had known him by the name "Tiger." ( Id. at 1813-14, 1823.) On January 12, 2011, Benjamin was walking back from a Rite Aid near Ebbets Field when Merritt passed him in the crosswalk, walking in the opposite direction. ( Id. at 1818-21.) Merritt then doubled back with another man, and came up behind Benjamin, laughing. ( Id. at 1821.) As Benjamin tried to cross the street, Merritt and the other man cut him off and demanded his phone, saying "give me your phone or I'm going to shoot you." ( Id. ) After Merritt was arrested, he was questioned by police and acknowledged that he had been present for the robbery, but claimed that he had nothing to do with it and that he "was simply going to get something to eat so [he] could go back home." ( Id. at 1906.) When Benjamin was asked at trial if he had any doubt about whether Merritt was one of the two men who robbed him, he responded, "I have no doubt about that." ( Id. at 1829.)

The second robbery victim, Kareem Clarke, also made an in-court identification of Merritt as one of two men who robbed him of his cellphone on January 14, 2011. ( Id. at 2252-53.) Clarke testified that he was going to the Rite Aid to get a prescription filled when he passed Merritt and another man walking toward the Rite Aid together. ( Id. at 2238-40.) When Clarke came out of the store, both men—together—followed him, until one asked Clarke for the time. ( Id. at 2244-49.) Merritt and the other man then blocked his path; Merritt demanded Clarke's cellphone. ( Id. at 2244-50.) Merritt gestured as if he had a gun in his pocket and added, "take off your coat before you die." ( Id. at 2251-52.) Clarke gave the men his coat, and they fled through a nearby gas station. ( Id. at 2252) Clarke's testimony was corroborated by a video from the gas station's security cameras, which showed the perpetrators following Clarke before the robbery, and then fleeing from the scene after the robbery. ( Id. at 1915, 1917-23; Gov't Ex. 704(a).)

The jury also found that two weeks later, on January 28, 2011, Merritt and two other men robbed and killed Dasta James. The Government presented evidence that included telephone records showing that Laurent began calling Merritt in the early afternoon that day. (Gov't Ex. 770.) According to cell site records, Laurent was not at Ebbets Field at the time, but met Merritt there later that day. (Gov't Ex. 820.) The call logs indicated that Merritt and Laurent spoke several times that afternoon. (Gov't Ex. 770.) The call logs and cell site records together showed that after the first few calls, Merritt (who lived in 11 McKeever Place) went to 47 McKeever Place and waited there for Laurent, who arrived shortly after 4:30 p.m. (Gov't Exs. 770, 820.)

Video surveillance from the lobby of 47 McKeever, which was in Ebbets Field, showed that when Laurent arrived with another person, Merritt went downstairs to meet them in the lobby, and then the three rode up together in the elevator. (Gov't Exs. 760, 771(a).) The three stopped on the sixteenth floor, where Dasta James lived, and then continued on the elevator to the twentieth floor. ( Id. ) Around this time, call logs show that Laurent called James multiple times. (Gov't Ex. 770.) Just before 5:00 p.m., James arrived at 47 McKeever and rode the elevator to the sixteenth floor. After he arrived, James called Laurent. (Gov't Ex. 760.)

Witness Corey Lao testified that he was in his apartment on the sixteenth floor of 47 McKeever around that time, when he heard a violent struggle in the sixteenth floor hallway. (Tr. at 1831-32.) Lao testified that he heard someone say, "Niggers want to die," or, "Niggers want to rob me," before hearing multiple gunshots and then footsteps running down the hallway toward the staircase. ( Id. at 1832-34.) Medical records and autopsy results showed that James had been punched several times in the face and had received a heavy blow to the back of the head, before being shot in the back of the head and the back of the chest. ( Id. at 1875-83; Gov't Exs. 751, 765.) James was found in the sixteenth floor hallway with his pocket torn and small bags of marijuana on the floor. (Tr. at 1243, 1834-35.) Immediately after the murder, Merritt and two other men were captured on video by a surveillance camera as they fled through the stairway of 47 McKeever and out of the building. (Gov't Ex. 760.)

After the murder, Merritt was questioned by law enforcement and made multiple statements. NYPD Detective Steven Orski testified that when Merritt was first asked to describe what happened, he seemed to be trying to implicate two people named "Lincoln" and "Anthony." Only then did Detective Orski show Merritt telephone records detailing the calls between Merritt and Laurent, and Laurent's calls with Dasta James immediately prior to the murder. Detective Orski also showed Merritt surveillance video stills in which Merritt and another man can be seen fleeing from 47 McKeever. At that point, Merritt admitted that he was one of the people shown in the video stills. (Tr. at 2034-37.)

Thereafter, Merritt made a series of statements indicating that he was simply buying marijuana when another man robbed and killed Dasta James. ( Id. at 2037-39, 2054-66.) In his final statement, he acknowledged that he knew in advance that the other man was going to rob James, and that the man who shot and killed James was a member of Six Tre. ( Id. at 2322-25.) Thus, despite his earlier denials, Merritt ultimately admitted that he was present for the robbery, that he knew in advance that the robbery would occur, and that he saw the other man shoot James. Nonetheless, the evidence also showed that Merritt misrepresented several facts, including his claim that only two individuals were involved, when the video clearly illustrated that there were three men involved in the robbery. ( Id. at 2217-24.)

C. Defense Case

Defendant Ashburn called Linda Jeffries, who testified that beginning in 2006, she lived with her daughter, Niesha, and Ashburn, who was in a relationship with Niesha. ( Id. at 2250-52.) Jeffries further testified that Niesha's daughter, Heaven, as well as a baby, Mallory, lived with them at the time. ( Id. at 2252-53.) According to Jeffries, while she and Niesha were working, Ashburn took care of the children. ( Id. at 2555.)

Ashburn also called Federal Bureau of Investigation ("FBI") Special Agent Christopher Campbell to testify regarding certain prior statements made by Kevin Bell during proffer sessions with the Government. ( Id. at 2562-67.) Defendant Merritt called NYPD Detective Raymond Weng to testify regarding certain prior statements that Kareem Clarke—a robbery victim who testified at trial—had made to Weng during an interview. ( Id. at 2540-48.)

Laurent did not call any witnesses.

D. Verdict and Post-Trial Motions

On March 17, 2015, the jury convicted Defendants on all counts of the Indictment, with the exception of Counts Thirteen and Fourteen, which, respectively, charged Merritt with use of a firearm during a crime of violence, and causing death through the use of a firearm in connection with that crime. ( Id. at 3127-32.) In convicting Defendants of Counts One and Two, the jury found all twelve racketeering acts to have been proved. ( Id. at 3124-27.)

In a one-page letter "in lieu of formal motions" dated March 24, 2015, Defendant Merritt moved for a judgment of acquittal and a new trial. (Def. Merritt's Mar. 24, 2015, Ltr. ("Merritt Ltr.") (Dkt. 464).) Merritt subsequently filed another letter "in lieu of formal motion" dated May 13, 2015, and expanded upon the arguments made in his March 24, 2015, letter. ( See Def. Merritt's May 13, 2015, Ltr. ("Merritt Supp. Ltr.") (Dkt. 482).)

On May 15, 2015, Laurent filed a motion in which he seeks both a new trial under Federal Rule of Criminal Procedure 33 and also to set aside the verdict as to Racketeering Acts 5, 6, 8, and 9, pursuant to Rule 29. ( See Mem. of Law in Supp. of Jamal Laurent's Mot. for New Trial and for J. of Acquittal Pursuant to Fed. R. Crim. P. 33 & 29 ("Laurent Mem.") (Dkt. 483-1).) The same day, Ashburn also filed a motion seeking relief under Rule 33. ( See Mem. of Law in Supp. of Def.'s Mot. Pursuant to R. 33, Fed. R. Crim. P. ("Ashburn Mem.") (Dkt. 484-2).)

But see infra Part II.B.

On June 26, 2015, the Government opposed Defendants' motions in their entirety. ( See Gov't's Mem. of Law in Opp'n to Defs.' Mots. For Acquittal or New Trial ("Gov't Opp'n") (Dkt. 496).)

II. RULE 29 MOTIONS FOR ACQUITTAL

A. Rule 29 Legal Standard

Under Rule 29, "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a); see also Fed. R. Crim. P. 29(c)(2) ("If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal.").

In challenging the sufficiency of the evidence, defendants face "an uphill battle," and bear "a very heavy burden." United States v. Crowley , 318 F.3d 401, 407 (2d Cir. 2003) (quoting United States v. Jones , 30 F.3d 276, 281 (2d Cir. 1994); United States v. Rivera , 971 F.2d 876, 890 (2d Cir. 1992)). A judgment of acquittal may be granted only if "no rational trier of fact could have found the defendant guilty beyond a reasonable doubt." United States v. Cassese , 428 F.3d 92, 98 (2d Cir. 2005) (quoting United States v. Jackson , 335 F.3d 170, 180 (2d Cir. 2003)). Therefore, the question is not whether this court believes that the evidence at trial established guilt beyond a reasonable doubt. Crowley , 318 F.3d at 407 (quoting United States v. Brown , 937 F.2d 32, 35 (2d Cir. 1991)). Rather, it is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Cassese , 428 F.3d at 98 (quoting United States v. Espaillet , 380 F.3d 713, 718 (2d Cir. 2004) (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979))). Thus, where the court concludes that "either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, [the court] must let the jury decide the matter." United States v. Temple , 447 F.3d 130, 137 (2d Cir. 2006) (quoting United States v. Autuori , 212 F.3d 105, 114 (2d Cir. 2000)); see also id. ("Put another way, '[a] court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.'" (quoting United States v. Guadagna , 183 F.3d 122, 130 (2d Cir. 1999))).

Moreover, in deciding a Rule 29 motion, the court must evaluate the evidence "in the light most favorable to the Government, with all reasonable inferences drawn in favor of the verdict." Crowley , 318 F.3d at 407. The court must also "resolve all issues of credibility in the government's favor." United States v. Canady , 126 F.3d 352, 356 (2d Cir. 1997); see also United States v. Desena , 260 F.3d 150, 154 (2d Cir. 2001). Thus, "[m]atters of the choice between competing inferences, the credibility of witnesses, and the weight of the evidence are within the province of the jury," and the court is "not entitled to second-guess the jury's assessments." United States v. Rea , 958 F.2d 1206, 1221-22 (2d Cir. 1992). In other words, Rule 29 does not provide the court "with an opportunity to substitute its own determination of . . . the weight of the evidence and the reasonable inferences to be drawn for that of the jury." Temple , 447 F.3d at 136 (quoting Guadagna , 183 F.3d at 129). The court "must affirm the conviction so long as, from the inferences reasonably drawn, the fact finder might fairly have found guilt beyond a reasonable doubt." Canady , 126 F.3d at 356.

"This deferential standard is 'especially important when reviewing a conviction of conspiracy . . . because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon's scalpel.'" United States v. Lombardozzi , 491 F.3d 61, 67 (2d Cir. 2007) (quoting United States v. Pitre , 960 F.2d 1112, 1121 (2d Cir. 1992)). Thus, "[t]hese principles apply whether the evidence being reviewed is direct or circumstantial." Canady , 126 F.3d at 356 (citing Glasser v. United States , 315 U.S. 60, 80 (1942)). And the court must review the pieces of evidence "as a whole, 'not in isolation.'" Id. (quoting United States v. Podlog , 35 F.3d 699, 705 (2d Cir. 1994)).

B. Ashburn's Rule 29 Motion

As a threshold matter, the court notes that Ashburn has raised a challenge to the sufficiency of the evidence in his motion for a new trial pursuant to Rule 33. ( See generally Ashburn Mem.) Sufficiency challenges raised in a new trial motion are reviewed "in the same fashion as those brought in motions for a judgment of acquittal." United States v. Leslie , 103 F.3d 1093, 1101 (2d Cir. 1997). Therefore, the court evaluates Ashburn's sufficiency challenge under the Rule 29 standard. See United States v. Allen , 127 F.3d 260, 264 (2d Cir. 1997) (finding "no case that requires the defendant to make both motions" to preserve the issue).

Ashburn thus challenges the sufficiency of the evidence with regard to his conviction of Racketeering Act 2, which charged that Ashburn, "with the intent to cause the death of another person, to wit: Courtney Robinson, did cause his death, in violation of New York Penal Law Sections 125.25(1) and 20.00." (Indictment ¶ 10.) Ashburn does not dispute that the evidence shows he possessed the murder weapon and that he fired the gun into Robinson's lower back. ( See Ashburn Mem. at 40.) Nonetheless, Ashburn argues that the Government failed to prove beyond a reasonable doubt that Ashburn possessed the necessary mens rea to have committed intentional murder under New York law. ( See id. at 36-41.)

1. Governing Law

New York Penal Law section 125.25(1) provides that a person is guilty of murder in the second degree when "with intent to cause the death of another person, he causes the death of such person or of a third person." Under section 15.05, a person acts with intent "when his conscious objective is to cause such result or to engage in such conduct." N.Y. Penal Law § 15.05(1). "[I]t is well-settled that, as a general matter, criminal intent may be proven by circumstantial evidence." United States v. Nelson , 277 F.3d 164, 197 (2002); see also Crowley , 318 F.3d at 409 ("The state of a person's mind is rarely susceptible to proof by direct evidence, and usually must be inferred from evidence of his or her acts . . . ."). In addition, juries are permitted—but not required—to infer that a person intends the ordinary consequences of his own voluntary acts. Nelson , 277 F.3d at 197 (citing Sandstrom v. Montana , 442 U.S. 510 (1979); Francis v. Franklin , 471 U.S. 307, 315 (1985)). Nonetheless, a finding of liability under section 125.25(1) requires proof of "a specific design to effect death—not merely an intent to shoot." People v. Sullivan , 503 N.E.2d 74, 78 (N.Y. 1986) (per curiam). But see People v. Payne , 819 N.E.2d 634, 636 (N.Y. 2004) (noting "intentional murder does not require planning or contrivance"), overruled on other grounds, as recognized by Rodriguez v. Smith , No. 07-CV-9272 (RJH) (PED), 2011 WL 1842850, at *2 n.8 (S.D.N.Y. Apr. 13, 2011) (report and recommendation).

New York Penal Law section 20.00 governs accessory liability. While the court also charged Racketeering Act 2 under an aiding and abetting theory ( see Final Jury Instructions (Dkt. 425) at 53), the Government does not pursue this theory in response to Ashburn's motion ( see Gov't Opp'n at 31-32).

2. Application

Ashburn contends there was insufficient proof that it was his conscious objective to cause Robinson's death. In support of this argument, Ashburn emphasizes that Robinson was not the intended target, and highlights the absence of evidence that he verbalized the intent to kill Robinson. (Ashburn Mem. at 38.) He also points out that the evidence showed only that: he had a firearm, he fired one shot, and the shot was fired into Robinson's lower back. ( See id. at 38, 40.) Ashburn thereby seeks to distinguish these facts from state court decisions affirming convictions for second-degree murder where, for example, the defendant shot the victim five times "inches" from the victim's back, see People v. Breedlove , 809 N.Y.S.2d 291 (App. Div. 2006), or stabbed the victim eight times, see People v. Rodriguez , 842 N.Y.S.2d 631 (App. Div. 2007), or "plunged a knife three to four inches deep into the victim's chest," see People v. Tigner , 860 N.Y.S.2d 542 (App. Div. 2002). (Ashburn Mem. at 39-40.) In this context, Ashburn maintains that the evidence established, at most, his guilt of depraved indifference murder, not intentional murder. ( Id. at 40-41.)

That Ashburn may have misidentified his victim is irrelevant. Indeed, the statute expressly permits a defendant to be convicted of murder on a theory of transferred intent. See N.Y. Penal Law § 125.25(1) (establishing liability when defendant, "[w]ith intent to cause the death of another person, . . . causes the death of such person or of a third person " (emphasis added)); see also Stone v. Stinson , 121 F. Supp. 2d 226, 247 (W.D.N.Y. 2000) (citing People v. Fernandez , 673 N.E.2d 910, 913 (N.Y. 1996)); People v. Hamilton , 6 N.Y.S.3d 707, 710-11 (App. Div. 2015) (affirming murder conviction when actual victim shot while trying to mediate dispute between intended victim and defendant).

Under New York Penal Law § 125.25(2), a defendant is guilty of second-degree murder when, "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person."

As the Government's memorandum suggests, however, the cases Ashburn cites do not fully reflect the scope of New York case law regarding second-degree murder. In fact, shooting a firearm at close range generally evidences the intent to kill, not seriously injure. (Gov't Opp'n at 32.) See People v. Colon , 493 N.Y.S.2d 614, 615 (App. Div. 1985) (record demonstrated intent to cause death, "not merely to inflict serious physical injury," where defendant fired his gun at victims at close range (citing People v. Burke , 422 N.Y.2d 469, 471 (App. Div. 1979) (defendant demonstrated intent to perpetrate death "rather than simply serious physical injury" by firing gun at victims at short range))). Moreover, despite Ashburn's unsupported claim that firing a shot into a victim's back is "not ordinarily associated with causing a fatal injury," (Ashburn Mem. at 38), a New York court has specifically held that a jury may infer an intent to kill where the defendant has fired a gun at a victim's back at close range. See People v. Woods , 511 N.Y.S.2d 344, 345 (App. Div. 1987) (holding evidence supported jury's finding that defendant intended to kill when he shot victim in back at close range when victim tried to flee).

In light of this case law, there was more than sufficient evidence to sustain the jury's verdict under Rule 29. As a general matter, the Government presented evidence that Ashburn was the leader of the Six Tre Folk Nation (Tr. at 459), and that members of Six Tre gained respect and built their reputations by committing acts of violence ( id. at 508). The jury also heard evidence that sometime before Robinson's death, Ashburn lost a fight to another member of the gang, Devon Rodney, which caused Ashburn to lose stature in Six Tre. ( Id. at 506, 507.) Furthermore, the Government presented evidence from two witnesses who independently confirmed that Ashburn was present at the party in Thompson's apartment on the night of April 20, 2008. ( Id. at 207, 513.) The jury heard testimony that during the party, despite having lost stature in the gang, Ashburn led a pledge in which he inducted new members into Six Tre. ( Id. at 518.) Later, when a fight broke out between Omar and Dewan (who later became a Six Tre member), Ashburn left the scrum, ran to the opposite end of the hallway ( id. at 522), and retrieved a firearm hidden in the stairwell ( id. at 523). Moments after Ashburn returned to the fight with the gun, a single shot was fired ( id. at 521, 523), at very close range into Robinson's back, perforating major blood vessels delivering blood to and from Robinson's legs, as well as his small intestine and mesentery ( id. at 996).

That pledge reflected that by joining the gang, members of Six Tre also agreed to kill members of rival gangs. ( See Tr. at 518.)

Thus, the jury could have reasonably inferred that Ashburn's actions were "deliberate and calculated" (Gov't Opp'n at 32), and that Ashburn's conscious objective—especially given how close the muzzle of the gun was to Robinson's back at the time it was fired—was to cause his death. See Woods , 511 N.Y.S.2d at 345. Viewing the facts, as the court must, in the light most favorable to the Government, there was sufficient evidence that Ashburn intended to kill Robinson. As a result, Ashburn's motion under Rule 29 is DENIED.

C. Laurent's Rule 29 Motion

Laurent, in turn, challenges the sufficiency of the evidence with regard to his convictions for the marketplace website robbery conspiracy and related robberies charged in Racketeering Acts 5, 6, 8, and 9. ( See Laurent Mem. at 19-24; see also Indictment ¶¶ 13-18, 20-25.) Specifically, Laurent contends that the evidence was insufficient to prove these crimes were "related" to each other or to the enterprise within the meaning of the racketeering statutes. (Laurent Mem. at 24.)

1. Governing Law

Counts One and Two of the Indictment charged Laurent with racketeering and racketeering conspiracy, in violation of 18 U.S.C. § 1962(c) and (d), which require proof that—among other things—a defendant conducted or conspired to conduct an "enterprise's affairs through a pattern of racketeering activity." The "pattern" requirement "is designed 'to prevent the application of RICO to the perpetrators of isolated or sporadic criminal acts.'" United States v. Payne , 591 F.3d 46, 64 (2d Cir. 2010) (quoting United States v. Indelicato , 865 F.2d 1370, 1383 (2d Cir. 1989)). Thus, to prove that a set of racketeering acts constitute a pattern, the Government "must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity." H.J. Inc. v. Nw. Bell Tel. Co. , 492 U.S. 229, 239 (1989) (emphasis in original). Racketeering predicates are "related" when they have "the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events." Payne , 591 F.3d at 64 (quoting H.J. Inc. , 492 U.S. at 240). This list, however, is "merely a guidepost, a starting point for the relatedness inquiry as a whole , not a list of elements, each of which must be proven in order to establish a pattern of racketeering activity." United States v. Daidone , 471 F.3d 371, 375 (2d Cir. 2006) (per curiam).

The Second Circuit has further developed the requirement of "relatedness" in holding that "predicate acts 'must be related to each other ("horizontal" relatedness), and they must be related to the enterprise ("vertical" relatedness).'" Id. (quoting United States v. Minicone , 960 F.2d 1099, 1106 (2d Cir. 1992)). To show that predicate acts are vertically related to the enterprise, the Government must establish "(1) that the defendant 'was enabled to commit the predicate offenses solely by virtue of his position in the enterprise or involvement in or control over the affairs of the enterprise,' or (2) that 'the predicate offenses are related to the activities of that enterprise.'" Id. (emphasis added) (quoting Minicone , 960 F.2d at 1106). One way of showing that predicate acts are horizontally related to each other is "to show that each predicate act is related to the RICO enterprise." Id. (quoting United States v. Polanco , 145 F.3d 536, 541 (2d Cir. 1998)). Thus, "both the vertical and horizontal relationships are generally satisfied by linking each predicate act to the enterprise." Id. at 376. "This is because predicate crimes will share common goals . . . and common victims . . . and will draw their participants from the same pool of associates." Id.

The relatedness requirement does not, however, obligate the Government to prove that a particular racketeering act was committed in furtherance of the enterprise's activities. United States v. Bruno , 383 F.3d 65, 84 (2d Cir. 2004); see also United States v. Miller , 116 F.3d 641, 676 (2d Cir. 1997) (noting relatedness requirement "is satisfied if the offense was related to the enterprise's activities, whether or not it was in furtherance of those activities, or if the defendant was enabled to commit the offense solely by virtue of his position in the enterprise" (quoting United States v. Thai , 29 F.3d 785, 815 (2d Cir. 1994))). In addition, "[e]vidence of relatedness . . . may arise from facts external to the [charged] predicate acts, including the nature of the RICO enterprise itself." United States v. Price , 443 F. App'x 576, 581 (2d Cir. 2011) (summary order) (second alteration in original) (quoting Minicone , 960 F.2d at 1106). As a result, "'[e]vidence of prior uncharged crimes and other bad acts that were committed by defendants[]' may be 'relevant . . . to prove the existence, organization and nature of the RICO enterprise, and a pattern of racketeering activity by each defendant . . . .'" Payne , 591 F.3d at 64 (quoting United States v. Diaz , 176 F.3d 52, 79 (2d Cir. 1999)).

2. Application

Laurent argues that the Government failed to meet its burden of proving that the marketplace website robbery conspiracy and associated robberies were vertically related to Six Tre, the charged enterprise. (Laurent Mem. at 24.) According to Laurent, other than the fact that two of the participants—Laurent and Ricky Hollenquest—were Six Tre members, there was no other evidence of a relationship between the robberies and the enterprise. ( See id. ) In support of this argument, Laurent emphasizes that Keegan Estrada, the "main witness" concerning the robberies, testified that no one from Six Tre asked him to commit these crimes, and that he had no information the robberies were connected to Laurent or Hollenquest's membership in the gang. ( Id. (citing Tr. at 1713).) Laurent also highlight Estrada's testimony that he agreed to commit the robberies because "it was profitable and [Laurent] was a friend, so [he] had no problem helping [Laurent] out." (Tr. at 1647.)

However, the Government correctly points out that this was not the only evidence of vertical relatedness between the robberies and the enterprise. As a general matter, the jury heard evidence that it was important for Six Tre members to maintain their reputation in the gang, and that the way Six Tre members developed their reputation was by making money or committing acts of violence. (Tr. at 437-38.) Kevin Bell explained that making money and committing violent acts were central to the gang's purposes, which were to instill fear in the general community and to glorify the lifestyle of Six Tre membership. ( See id. at 444-45; see also id. at 446 ("[T]he gang had a reputation to protect, and the reputation was . . . the lifestyle that we portrayed.").) As Bell testified, one of the gang's basic rules was "you gotta be getting money. You gotta be doing something. You gotta—your image has to be kept up to par." ( Id. at 446.) Thus, the speed at which a Six Tre member could rise in the ranks of the gang depended on the type of "work" that member was "putting in." ( Id. at 438-39; see also id. at 439 (explaining that "putting in work" meant "making a lot of money or acts of violence").)

More specifically, the Government introduced evidence establishing that one of the ways a member of Six Tre would develop a reputation was through committing cellphone robberies. ( See Tr. at 476.) Bell testified that when he was a Six Tre member, he committed approximately five cellphone robberies, one of which he committed with Trevelle Merritt, one of Laurent's co-defendants. ( Id. at 476-77.) The jury also found that Merritt, on his part, committed at least two other cellphone robberies as a member of Six Tre. See supra Part I.B.7. The overlap in participants, purpose, and results of these crimes therefore supports finding the cellphone robberies Laurent committed were vertically related to his membership in Six Tre. See Payne , 591 F.3d at 64 (noting racketeering acts are "related" when they have "the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events" (quoting H.J. Inc. , 492 U.S. at 240)).

The jury was also entitled to draw an inference of vertical relatedness from the timing of Laurent's membership in Six Tre. Both Estrada and Joel Mitchell testified that Laurent had become a member of Six Tre by the spring of 2010. ( See Tr. at 1016-17, 1025-26 (Mitchell); 1606-07 (Estrada).) Estrada testified that it was shortly after this time that Laurent first proposed robbing customers of Estrada's business selling fake refurbished cellphones on Craigslist. ( Id. at 1646 (testifying this conversation took place in "late spring, early summer of 2010").) Estrada explained how Laurent stated that he wanted to commit these robberies "to get money" ( id. at 1646), even though Laurent had a job working at Brooklyn College ( see id. at 1685). Furthermore, Estrada testified that he started seeing Laurent carrying a gun in the summer of 2010, and that until he purchased his own gun, Laurent would obtain guns from Ebbets Field. ( Id. at 1611-12.)

Significantly, Laurent used one of the guns he borrowed from "someone" in Ebbets Field to rob Paul Senzamici ( id. at 1689), a robbery for which the jury convicted Laurent in Racketeering Act 9. In addition, Estrada testified that Laurent once asked Estrada to store a gun, which Hollenquest, another Six Tre member, ultimately picked up. ( Id. at 1612-13.) Hollenquest was arrested later in 2010 with Estrada in connection with a sting operation set up to catch perpetrators of robberies conducted via Craigslist ( Id. at 1566, 1573.) While he was fleeing police during this operation, Hollenquest discarded a gun. ( Id. at 1569-70.) In light of testimony that: (a) Six Tre members earned status by making money and committing violent acts, which included cellphone robberies, (b) Six Tre members kept guns at Ebbets Field, and (c) Laurent began committing armed cellphone robberies—including with another Six Tre member—after he joined Six Tre, the jury could reasonably infer that the Internet marketplace robberies (and associated conspiracy) were related to the enterprise. Accordingly, there was sufficient evidence to support Laurent's convictions for Racketeering Acts 5, 6, 8, and 9. See Payne , 591 F.3d at 64.

To the extent that Laurent suggests these racketeering acts were not vertically related to the enterprise because Estrada was not a member of Six Tre, and only agreed to commit the crimes because he was Laurent's friend and wanted to make money, this argument fails. As the court has already observed, the Government's obligation to prove vertical relatedness does not require evidence that a particular racketeering act was committed in furtherance of the enterprise's activities. See Bruno , 383 F.3d at 84. Consequently, Estrada's testimony that no one from Six Tre instructed him to commit these crimes did not render unreasonable the jury's finding that Laurent's participation in these robberies was related to Laurent's position in Six Tre. Similarly, that Laurent conspired and participated in these robberies with Estrada, who was not a member of Six Tre, does not change whether any rational trier of fact could have found the marketplace robberies to be vertically related to Laurent's membership in the gang.

Furthermore, Laurent has not identified—and the court is unable to find—any support for the proposition that participation in a racketeering act with an accomplice who is not a formal member of the enterprise undermines otherwise substantial evidence of vertical relatedness. See also Daidone , 471 F.3d at 375 (noting Supreme Court's list in H.J. Inc. was "not a list of elements, each of which must be proven in order to establish a pattern of racketeering activity"). Estrada's non-membership in Six Tre is even less significant in this case, where the evidence showed that Hollenquest, a Six Tre member, also participated in these crimes, and that Laurent used a firearm obtained from a Six Tre supply of guns during at least one of the charged robberies. Having viewed all of the facts in the light most favorable to the Government, the court finds that Laurent has failed to overcome his "heavy burden" of showing the evidence was insufficient to sustain his conviction of Racketeering Acts 5, 6, 8, and 9. His motion under Rule 29 is therefore DENIED.

D. Merritt's Rule 29 Motion

Finally, Merritt argues that the evidence was insufficient to sustain his conviction for Racketeering Act 11, which charged Merritt with the January 14, 2011, robbery of Kareem Clarke, in violation of New York Penal Law sections 160.05 and 20.00. Merritt insists that this conviction "flies in the face of" proof that while Merritt is six feet tall, the officer who investigated the robbery testified that Clarke told him the assailants were both five feet, six inches tall. (Merritt Supp. Ltr. at 3; see also Tr. at 2547.) As the Government points out, however, Clarke specifically identified Merritt in court as one of the two men who robbed him. (Gov't Opp'n at 33 (citing Tr. at 2253).) Especially where the credibility of this witness was within the province of the jury to decide, see Rea , 958 F.2d at 1221-22, it cannot be said that the evidence was so meager that no reasonable jury could find Merritt guilty of this robbery beyond a reasonable doubt, see Temple , 447 F.3d at 137. Merritt's Rule 29 motion is therefore DENIED.

Merritt has also moved for a judgment of acquittal "by virtue of a whole [] total lack of proof of guilt beyond a reasonable doubt" as to each count of conviction. (Merritt Ltr. at 1.) With the exception of his claim regarding the robbery of Kareem Clarke, however, Merritt has failed to identify a single purported deficiency in the evidence underlying his other convictions. Because Merritt is represented by counsel, the court addresses in detail only the specific argument he has made with respect to Racketeering Act 11. Cf. Pabon v. Wright , 459 F.3d 241, 248 (2d Cir. 2006) (citing Burgos v. Hopkins , 14 F.3d 787, 790 (2d Cir. 1994) (reading pro se litigant's supporting papers liberally, interpreting them "to raise the strongest arguments that they suggest")). In any event, there was more than sufficient evidence to support Merritt's convictions on each of the other counts. See generally supra Part I.B.

At trial, Merritt's counsel elicited testimony that Merritt was five feet, eleven inches tall at the time he was interviewed by the investigating officer. (Tr. at 2547.)

III. RULE 33 MOTIONS FOR A NEW TRIAL

A. Rule 33 Legal Standard

Rule 33 provides that, "[u]pon a defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). "The rule by its terms gives the trial court 'broad discretion . . . to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.'" United States v. Ferguson , 246 F.3d 129, 133 (2d Cir. 2001) (quoting United States v. Sanchez , 969 F.2d 1409, 1413 (2d Cir. 1992)). Thus, a court may properly grant a motion under Rule 33 when it "is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." United States v. Landau , 155 F.3d 93, 104 (2d Cir. 1998); see also United States v. Coté , 544 F.3d 88, 101 (2d Cir. 2008) (Sotomayor, J.).

"In the exercise of its discretion, the court may weigh the evidence and credibility of witnesses." Coté , 544 F.3d at 101 (citing Sanchez , 969 F.2d at 1413). However, because "courts generally must defer to the jury's resolution of conflicting evidence and the assessment of witness credibility, Ferguson , 246 F.3d at 133, "[i]t is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment," id. (quoting Sanchez , 969 F.2d at 1414); see also id. ("An example of exceptional circumstances is where testimony is 'patently incredible or defies physical realities,' although the district court's rejection of trial testimony by itself does not automatically permit Rule 33 relief." (quoting Sanchez , 969 F2d at 1414)). Accordingly, the court "must strike a balance between weighing the evidence and credibility of witnesses and not 'wholly usurp[ing]' the role of the jury." Ferguson , 246 F.3d at 133 (quoting United States v. Autuori , 212 F.3d 105, 120 (2d Cir. 2000)).

"The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." Id. at 134 (quoting Sanchez , 969 F.2d at 1414). A "manifest injustice" occurs when, having examined the entire case—taking into account all facts and circumstances—and having conducted an objective evaluation, there exists "a real concern that an innocent person may have been convicted." Id. (quoting Sanchez , 969 F.2d at 1414). In other words, the court "must be satisfied that 'competent, satisfactory and sufficient evidence' in the record supports the jury verdict." Id. (quoting Sanchez , 969 F.2d at 1414).

Generally, the court has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29. Coté , 544 F.3d at 101. Nonetheless, the Second Circuit has held that courts must exercise Rule 33 authority "sparingly," and only in "the most extraordinary circumstances." Id. (quoting Sanchez , 969 F.2d at 1414). Defendants bear the burden of proving they are entitled to new trials under Rule 33. United States v. McCourty , 562 F.3d 458, 475 (2d Cir. 2009).

B. Ashburn's Rule 33 Motion

Pursuant to Rule 33, Ashburn argues that the court erroneously: (1) excluded proffered impeachment evidence, (2) admitted testimony regarding a protective order, (3) denied his request for a self-defense instruction, and (4) excluded his children from the courtroom during the jury deliberations and verdict.

1. Exclusion of Impeachment Evidence

Ashburn challenges the court's exclusion of certain impeachment evidence in connection with the testimony of two Government witnesses. First, Ashburn claims the court erred in precluding cross-examination of Corretta Thompson regarding her prior criminal convictions under Federal Rule of Evidence 609. (Ashburn Mem. at 32-36.) Second, he claims the court erroneously excluded extrinsic evidence of prior statements made by both Thompson and Kevin Bell pursuant to Rule 613. ( Id. at 28-32.) Ashburn fails, however, to show that any of the court's evidentiary rulings represented an abuse of its discretion, much less, to meet his burden under Federal Rule of Criminal Procedure 33.

a. Rule 609

Shortly before trial, the Government moved to preclude a number of Thompson's prior criminal convictions, arguing that they were inadmissible under Federal Rule of Evidence 609. Thompson's criminal history reflected the following convictions:

i. A March 17, 1998, conviction for attempted criminal sale of a controlled substance in the third degree, in violation of New York Penal Law section 220.39, a Class C felony;



ii. A May 21, 1997, conviction for shoplifting, in violation of New Jersey Statute section 2C:20-11b(2), a felony offense;



iii. A May 21, 1997, conviction for possession of burglar's tools, in violation of New Jersey Statute section 2C:5-5A, a misdemeanor offense; and

iv. A September 9, 1996, conviction for criminal possession of stolen property in the fifth degree, in violation of New York Penal Law section 165.40, a Class A misdemeanor.



(Gov't's Feb. 18, 2015, Ltr. (Dkt. 351).)

The court granted the Government's motion to preclude as to each of Thompson's prior convictions. (Feb. 25, 2015, Order.) The court found that Thompson's misdemeanor convictions—possession of burglar's tools and criminal possession of stolen property—were not admissible under Rule 609(a)(1) because they were not punishable by imprisonment of more than one year, and were not admissible under Rule 609(a)(2) because they did not require proof of a "dishonest act or false statement" within the meaning of the Rule. ( Id. (citing United States v. Hayes , 553 F.2d 824, 827 (2d Cir. 1977) ("Congress emphasized that [Rule 609(a)(2)] was meant to refer to convictions 'peculiarly probative of credibility,' such as those for 'perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully.'" (citation and footnote omitted)); see also Tr. at 168.) The court further precluded cross-examination with respect to all four of Thompson's prior convictions—both misdemeanors and felonies—under Rule 609(b)(1) because each conviction was more than ten years old, and the probative value of each did not substantially outweigh its prejudicial effect. (Feb. 25, 2015 Order; see also Tr. at 168.)

In his motion for a new trial, Ashburn concedes that the court properly excluded Thompson's shoplifting conviction. (Ashburn Mem. at 33.) Nonetheless, Ashburn argues that the other three crimes "involve some level of moral turpitude," for which the court should have permitted cross-examination of Thompson. ( Id. at 34.) In support of his argument, Ashburn cites a number of cases for the propositions that: (i) with the exception of shoplifting, there is no per se rule against finding Thompson's crimes involved dishonest acts or statements under Rule 609(a); and (ii) convictions over ten years old are not automatically inadmissible under Rule 609(b). ( Id. at 34-36.) As the Government points out, however, the cases Ashburn cites are easily distinguishable, and fail to establish that this court's exclusion of Thompson's convictions was erroneous.

For example, Ashburn cites Jones v. City of New York , No. 98-CV-6493 (LBS), 2002 WL 207008 (S.D.N.Y. Feb. 11, 2011), as support for admitting evidence of Thompson's nearly eighteen-year-old misdemeanor conviction for possession of burglar's tools under Rule 609(b) . (Ashburn Mem. at 34.) In Jones , however, the court permitted cross-examination under Rule 609(a) with respect to plaintiff's prior felony convictions for criminal mischief, burglary, and possession of stolen property—each of which was less than ten years old. 2002 WL 207008, at *2-3. Thus, Jones is inapposite, as is Maize v. Nassau Health Care Corp. , No. 05-CV-4920 (ETB), 2012 WL 139261, at *2 (E.D.N.Y. Jan. 18, 2012), in which the court permitted cross-examination regarding plaintiff's two year-old felony conviction for burglary under Rule 609(a). Cf. also Lewis v. Sheriffs Dep't for City of St. Louis , 817 F.2d 465, 467 (8th Cir. 1987) (no abuse of discretion in permitting cross-examination of plaintiff regarding less than ten year-old conviction for felonious possession of burglary tools); United States v. Portillo , 633 F.2d 1313, 1322-23 (9th Cir. 1980) (no abuse of discretion in permitting cross-examination regarding defendant's felony burglary conviction that was less than ten years old). Ashburn's argument regarding Thompson's eighteen year-old misdemeanor conviction for possession of stolen property also lacks support in the cases he cites. See United States v. Hourihan , 66 F.3d 458, 462, 464 (2d Cir. 1995) (district court did not abuse discretion in permitting cross-examination concerning defendant's eight year-old felony conviction for possession of stolen property); United States v. Maisonneuve , 954 F. Supp. 114, 117 (D. Vt. 1997) (permitting cross-examination regarding defendant's nine year-old felony conviction for possession of stolen property).

Nonetheless, Ashburn insists that although Thompson's convictions were more than ten years old, "under the right circumstances they are admissible for purposes of impeachment." (Ashburn Mem. at 35.) While this is correct as a general rule, Ashburn fails to demonstrate that "the right circumstances" are present here. Under Rule 609(b), evidence of a conviction that is more than ten years old is admissible only if "its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect." Fed. R. Evid. 609(b)(1). Other than arguing that it would not be cumulative of other attacks on her credibility, however, Ashburn does not bother to provide the court with "specific facts and circumstances" to explain why Thompson's eighteen year-old misdemeanor conviction for possession of stolen property, nearly eighteen year-old misdemeanor conviction for possession of burglar's tools, or nearly seventeen year-old felony conviction for attempted criminal sale of a controlled substance remain probative of her propensity to testify truthfully. ( See Ashburn Mem. at 36.) Moreover, the decisions on which Ashburn relies fail to compensate for this shortcoming. See Farganis v. Town of Montgomery , 397 F. App'x 666, 669-70 (2d Cir. 2010) (summary order) (assuming but not deciding that admission of plaintiff's thirteen year-old conviction for misdemeanor petit larceny based on falsification of records was proper because the act involved a false statement; and finding that failure to make on-the-record finding was harmless error); United States v. Mahler , 579 F.2d 730, 733-36 (2d Cir. 1978) (admission of defendant's more than ten year-old convictions for providing false testimony and committing stock fraud, absent on-the-record finding, was harmless error where the convictions were already admitted under Rule 404(b)).

In this context, the court notes that the Second Circuit has "repeatedly 'recognized that Congress intended that convictions over ten years old be admitted very rarely and only in exceptional circumstances.'" Farganis , 397 F. App'x at 669 (quoting Zinman v. Black & Decker (U.S.), Inc. , 983 F.2d 431, 434 (2d Cir. 1993)). Yet Ashburn makes no attempt to explain why evidence of Thompson's prior convictions represents one of the exceptional circumstances in which the probative value substantially outweighs its prejudicial effect. Accordingly, the court's decision to exclude cross-examination on this topic was neither erroneous nor a miscarriage of justice that warrants a new trial.

b. Rule 613

Rule 613 provides that "[e]xtrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires." Fed. R. Evid. 613(b). Shortly before the Government rested, counsel for Ashburn sought permission under Rule 613 to call law enforcement witnesses to testify regarding what Ashburn claimed were prior inconsistent statements by Kevin Bell and Coretta Thompson. ( See Tr. at 2132-45.) As outlined by the Government's letter in opposition, Ashburn identified three allegedly inconsistent statements made by Thompson during her testimony, and fourteen allegedly inconsistent statements made by Bell during his testimony. ( See Gov't's Mar. 5, 2015, Ltr. (Dkt. 388).) With the exception of testimony by FBI Special Agent Christopher Campbell regarding two of Bell's prior statements (about gambling, and the frequency of Six Tre meetings and who ran those meetings), the Government opposed Ashburn's motion to introduce testimony about Thompson's and Bell's prior statements. ( See id. at 2.)

Consequently, the court proceeded to analyze Thompson's and Bell's testimony with respect to their prior statements to determine whether an impeachment witness was warranted under Rule 613. The court found that none of the testimony by Thompson that Ashburn identified was inconsistent with her prior statements, and the court denied Ashburn's motion on that basis. (Tr. at 2401.) Regarding Bell's testimony, the court found that six of the twelve purported inconsistencies were not inconsistent with his prior statements. ( See id. at 2402-03.) Of the remaining six allegedly inconsistent statements, the court determined that five were based on Bell's claimed failure to recall. ( Id. at 2402.) With respect to two of these five potential inconsistencies, however, the court found that Bell was not given an opportunity to explain or deny his prior statements. ( Id. at 2402 (noting Bell was not provided this opportunity with respect to his statements about handguns or travel to Binghamton); see also id. at 2403.)

The sixth alleged inconsistency, which did not involve Bell's failure to recall, was his testimony that he was sixteen years old when he moved to Georgia; he had previously stated that he was fifteen at the time. ( See Gov't's Mar. 5, 2015, Ltr. at 5.) The court determined, however, that not only was Bell not given an opportunity to explain or deny his prior statement, cf. Fed. R. Evid. 613(b), but also that this inconsistency was plainly collateral and lacked any probative value with respect to Bell's credibility. ( See Tr. at 2402 (noting inconsistency was "de minimis").)

Of the three remaining alleged inconsistencies, the court found that impeachment testimony was potentially appropriate based on Bell's failure to recall two of his prior statements. ( Id. at 2403.) The court reasoned that Bell's testimony regarding whether his then-girlfriend ("Eboni") (1) threw a bottle at a police officer, and (2) carried a gun in her bag was "inconsistent" with his prior statements within the meaning of Rule 613 because Bell's failure to recall suggested a desire to protect her reputation, which could have affected Bell's credibility in testimony related to the Robinson murder. ( See id. ) However, because Ashburn failed to identify specifically which law enforcement witness he would call to testify regarding Bell's prior statements on these two subjects, the court denied Ashburn's motion to introduce impeachment evidence under Rule 613. ( Id. ) Ashburn did not subsequently identify the witnesses whom he sought to call.

The court found that impeachment testimony was not warranted with respect to the third alleged inconsistency: Bell's failure to recall whether he had stolen money from his sister. ( See Tr. at 2402.) Specifically, the court observed that on cross-examination, Bell was asked whether he "took money from [his] sister's dresser drawer." ( See id. ; see also id. at 706.) The court determined that his failure to recall whether he told law enforcement agents that he stole money from his sister's dresser drawer was not inconsistent with his prior statement that he "has stolen money from his sister in the past." ( Id. at 2402.)

Specifically, Bell denied seeing Eboni hit anyone with a bottle during the fight that preceded Robinson's death. ( See Tr. at 622.) Contrary to the suggestion made by counsel in his memorandum, however, the court has never previously determined that "there was no inconsistency" regarding Bell's testimony about Eboni's involvement in that fight. ( Cf. Ashburn Mem. at 27.) In fact, the court was never asked to address that question. ( See generally Gov't's Mar. 5, 2015, Ltr.) Moreover, the court did find that Bell's failure to recall whether Eboni threw a bottle at a police officer on May 4, 2010, was inconsistent under Rule 613. ( See Tr. at 2403.)

In his motion for a new trial under Rule 33, Ashburn appears to reiterate the argument he previously made to this court at trial: that Bell's "numerous" failures to recall his prior statements regarding collateral matters amounted to "inconsistencies" within the meaning of Rule 613. ( See Ashburn Mem. at 28-29, 31.) In the alternative, the court also construes Ashburn's brief as arguing that each of Thompson's and Bell's failures to recall represent separate and independent inconsistencies under Rule 613. ( See id. ) Ultimately, Ashburn argues that had he been permitted to introduce impeachment evidence, the jury would have accepted and rejected parts of Thompson's and Bell's testimony, and thus reasonably could have found that Omar and Robinson were the initial aggressors using deadly force. ( Id. at 31-32.)

Although Ashburn is represented by counsel, this section of his memorandum i