19-610-cr (L)

United States v. Jenkins

In the

United States Court of Appeals

For the Second Circuit

August Term, 2021

Nos. 19-610-cr (L); 19-637-cr (Con), 19-2778-cr (Con)

UNITED STATES OF AMERICA,

Appellee,

v.

ANDRE JENKINS, AKA LITTLE BEAR, DAVID PIRK, TIMOTHY ENIX, AKA

BLAZE,

Defendants-Appellants.*

On Appeal from a Judgment of the United States District Court for 

the Western District of New York.

ARGUED: MAY 18, 2022

DECIDED: AUGUST 5, 2022

Before: KEARSE, JACOBS, and NARDINI, Circuit Judges.

* The Clerk of Court is directed to amend the caption as set forth above.
2

Defendants-Appellants Andre Jenkins, David Pirk, and 

Timothy Enix were convicted in the United States District Court for 

the Western District of New York (Elizabeth A. Wolford, Chief Judge)

of firearms, narcotics, and racketeering offenses following a jury trial 

at which Pirk and Enix testified in their own defense. In a 

concurrently filed summary order, we consider and reject nearly all 

of Defendants-Appellants’ arguments except with respect to vacatur 

of Pirk’s and Jenkins’s convictions on Count 2 of the Superseding 

Indictment. In this opinion, we hold that, contrary to Pirk’s and 

Enix’s arguments, the district court did not err in instructing the jury 

on the principles to use in evaluating the testimony of interested 

witnesses, including Pirk and Enix. The district court’s instruction 

did not assume the testifying defendants’ guilt or otherwise 

undermine the presumption of innocence. Accordingly, we AFFIRM 

in part and VACATE in part the judgments of the district court and 

REMAND the case to the district court for further proceedings 

consistent with this opinion and the concurrently filed summary 

order.

KATHERINE A. GREGORY, Assistant United 

States Attorney, for Trini E. Ross, United 

States Attorney for the Western District of 

New York, Buffalo, NY, for Appellee.

MICHAEL S. DEAL, Legal Aid Bureau of 

Buffalo, Inc., Buffalo, NY, for DefendantAppellant Jenkins.

WILLIAM T. EASTON (Cheryl M. Buth, 

Meyers Buth Law Group, Orchard Park, 

NY, on the brief), Easton Thompson 
3

Kasperek Shiffrin LLP, Rochester, NY, for 

Defendant-Appellant Pirk.

JAMES W. GRABLE, JR. (Terrence M. 

Connors, Rebecca F. Izzo, on the brief), 

Connors LLP, Buffalo, NY, for DefendantAppellant Enix.

WILLIAM J. NARDINI, Circuit Judge:

Defendants-Appellants Andre Jenkins, David Pirk, and 

Timothy Enix appeal from judgments of conviction entered after a 

jury trial on narcotics, firearms, and racketeering offenses. In this 

opinion, we address only Pirk’s challenge, which Enix joins, to the 

district court’s instruction on interested witnesses. Finding no error 

in that instruction, we AFFIRM the judgment of the district court in 

all respects but one. For reasons discussed in a concurrently filed 

summary order, we VACATE Pirk’s and Jenkins’s convictions on 

Count 2 of the Superseding Indictment and REMAND the case for 

further proceedings.
4

I. Background

Pirk, Enix, and Jenkins belonged to a motorcycle gang known 

as the Kingsmen Motorcycle Club (“KMC”). Pirk was the National 

President of the KMC beginning in 2013. Enix was the Regional 

President of Florida and Tennessee and was appointed to the position 

of National Secretary and Treasurer by Pirk. Jenkins did not hold a 

leadership position but was a member of a Florida KMC chapter.

The government charged Pirk, Enix, and Jenkins with 

racketeering, narcotics, and firearms offenses arising out of their 

membership in the KMC. At trial, Pirk and Enix took the witness 

stand and testified on their own behalf. After the close of evidence, 

the district court instructed the jury, in part:

If [a witness] is interested in the outcome of the trial on 

one side or the other, you may consider such interest in 

determining how much credit or weight you will give to 

his or her testimony. A witness is an interested witness 

when by reason of relationship, friendship, antagonism, 

or prejudice in favor of or against one side or the other, 

his or her testimony, in your judgment, is biased or likely 

to be biased toward the side which he or she favors. . . . 

In determining the credibility of a witness, you may 
5

consider whether such witness has any bias or prejudice 

for or against any party in the case. In determining the 

credibility and weight to be given to the testimony of a 

witness, you should take into account such bias or 

prejudice. Evidence that a witness is biased or 

prejudiced for or against a party requires you to view the 

witness’[s] testimony with caution, to weigh it with care, 

and to subject it to close and searching scrutiny. 

However, keep in mind that you should not reject the 

testimony of an interested witness merely because of 

such interest. Nor should you accept the testimony of a 

witness merely because of such disinterest. It is your 

duty in the case of all witnesses to accept such of the 

testimony as you believe to be truthful and reject only 

such testimony as you believe to be false. As I said, 

interest and disinterest are merely factors you may 

consider in evaluating credibility. 

As I have mentioned, in a criminal case, a defendant 

cannot be required to testify. Our Constitution provides 

that he has the right to elect not to testify. However, if a 

defendant chooses to testify, he is, of course, permitted 

to take the witness stand on his own behalf. In this case, 

Mr. Pirk and Mr. Enix decided to testify. You should 

examine and evaluate their testimony just as you would 

the testimony of any witness with an interest in the 

outcome of this case.
6

Joint App’x at 18408–09. The jury ultimately convicted DefendantsAppellants on each of the charges in the Superseding Indictment. 

This appeal followed.

II. Discussion

On appeal, Pirk claims that the district court’s interestedwitness instruction undermined the presumption of innocence to 

which all criminal defendants are entitled at trial. See Nelson v. 

Colorado, 137 S. Ct. 1249, 1255–56 (2017) (“Axiomatic and elementary, 

the presumption of innocence lies at the foundation of our criminal 

law.” (internal quotation marks and alteration omitted)). For the 

following reasons, we disagree.

A. Standard of review

Although Defendants-Appellants submitted their own 

proposed jury instruction and lodged a general objection to the 

instructions “to the extent the Court’s proposed charge is different 

from those that [Defendants-Appellants] submitted,” Joint App’x at 

17951, Pirk did not specifically object to the district court’s proposed 
7

interested witness instruction. Pirk therefore concedes that he did not 

preserve the issue for appellate review, because “[a] mere ‘request for 

an instruction before the jury retires’ does not ‘preserve an objection 

to the instruction actually given by the court.’” United States v. Solano, 

966 F.3d 184, 193 (2d Cir. 2020) (quoting Jones v. United States, 527 U.S. 

373, 388 (1999)); see also Fed. R. Crim. P. 30(d) (“A party who objects 

to any portion of the instructions . . . must inform the court of the 

specific objection and the grounds for the objection before the jury 

retires to deliberate.”). Accordingly, we review for plain error. Fed. 

R. Crim. P. 52(b); Solano, 966 F.3d at 193. On plain error review, the 

burden rests on the appellant to establish that there is “(1) error, (2) 

that is plain, and (3) that affects substantial rights. If all three 

conditions are met, an appellate court may then exercise its discretion 

to notice a forfeited error, but only if (4) the error seriously affects the 

fairness, integrity, or public reputation of judicial proceedings.” 
8

Solano, 966 F.3d at 193 (internal quotation marks and alterations 

omitted). 

B. Interested-witness jury instructions in criminal cases

If the district court decides to instruct a jury on how to evaluate 

the testimony of a defendant who chooses to testify, the district court 

must be careful not to undermine two “bedrock constitutional 

principles”: first, “that a defendant has the right to, but is not required 

to, testify in his own defense at trial,” and second, “that the defendant 

is presumed innocent until proven guilty.” Solano, 966 F.3d at 194. 

For this reason, a district court errs when it instructs the jury that the 

defendant has a motive to testify falsely, whether it does so explicitly 

or implicitly. In United States v. Gaines, we found error in instructions 

that explicitly identified the defendant’s “deep personal interest in the 

result of his prosecution” as “creat[ing] a motive for false testimony.” 

457 F.3d 238, 242 (2d Cir. 2006). We held that this instruction 

undermined the presumption of innocence and said that its “critical 

defect” was “its assumption that the defendant is guilty.” Id. at 247. 
9

Indeed, such an instruction would be inaccurate in the case of an 

innocent testifying defendant, who would have a motive to testify 

truthfully to exonerate himself. See id. at 246.

We reached a similar conclusion in United States v. Brutus with 

respect to a jury charge that highlighted the defendant as having “a 

deep personal interest in the outcome of her prosecution,” an “interest 

which is possessed by no other witness,” and that “creates a motive 

to testify falsely.” 505 F.3d 80, 85 (2d Cir. 2007). Relying on Gaines, 

we held that this instruction “impermissibly undermines the 

presumption of innocence because it presupposes the defendant’s 

guilt.” Id. at 87. We also extended the principle embodied by Gaines

by adding that the error in a guilt-assuming jury instruction cannot 

be cured or balanced by additional, more favorable language. Id.

Likewise, in United States v. Mehta, we found plain error in a charge 

that told the jury that they could “consider the fact that a defendant’s 

interest in the outcome of the case creates a motive for false testimony, 
10

but it by no means follows that a defendant is not capable of telling 

the truth.” 919 F.3d 175, 180 (2d Cir. 2019). Reviewing Gaines and 

Brutus, we noted that “[w]e have repeatedly held, in no uncertain 

terms, that this charge is forbidden,” because “it presupposes the 

defendant’s guilt.” Id. at 182 (internal quotation marks omitted).

Finally, in United States v. Solano, we surveyed these and other 

decisions and applied their reasoning to identify plain error in a jury 

charge “which included the instruction (a) that a witness’s interest ‘in 

the outcome of the case . . . . creates a motive on the part of the witness 

to testify falsely[,]’ and (b) that this applies to ‘any witness[.]’” 966 

F.3d at 197 (internal citation omitted). Such an instruction, we held, 

“suffers the same substantive constitutional defect identified and 

prohibited by Gaines and Brutus and their progeny.” Id. Even though 

the district court’s instruction did not explicitly single out the 

defendant as an interested witness (after identifying interested

witnesses as possessing a motive to testify falsely), it did so implicitly 
11

because “[i]t is a matter of common sense that the defendant in a 

criminal case has a profound interest in its outcome, [so] an 

instruction indicating to the jury that that interest gives him a motive 

to testify falsely is contrary to the presumption of innocence.” Id.

(internal citations omitted). Taken together, these cases reflect that a 

trial court may not, explicitly or implicitly, instruct the jury that a 

defendant has a motive to testify falsely because such guilt-assuming 

language runs counter to the presumption of innocence.

C. Application

Contrary to Pirk’s arguments, the district court’s jury charge 

did not run afoul of these principles. At no point did the court assume 

the defendants’ guilt by suggesting, directly or indirectly, that the 

defendants had a motive to testify falsely. The instructions here were 

guilt-neutral, not guilt-assuming. The district court even-handedly 

instructed the jury to consider the defendants’ “testimony just as you 

would the testimony of any witness with an interest in the outcome 

of this case” after generally defining interested witnesses as those 
12

whose testimony, “by reason of relationship, friendship, antagonism, 

or prejudice in favor of or against one side or the other, . . . in your 

judgment, is biased or likely to be biased toward the side which he or 

she favors.” Joint App’x at 18408–09. The court did not equate 

“biased or likely to be biased” with a motive to testify falsely. Quite 

to the contrary, the court explained that a witness’s interest or lack 

thereof should not cause the jury to automatically reject or accept a 

witness’s testimony. Although we do not mandate that district courts

provide an interested witness instruction or use any particular verbal 

formulas when they do so, we commend the charge given in the 

present case as a carefully balanced instruction on witness bias that 

did not undermine the presumption of innocence. 

Accordingly, we find that the district court did not commit 

error (much less plain error) in instructing the jury on the principles 

to use in evaluating Pirk’s and Enix’s testimony. 
13

III. Conclusion

In sum, we hold that the district court’s interested-witness 

instructions did not assume the defendants’ guilt or otherwise 

undermine the presumption of innocence and were thus not 

erroneous. We therefore AFFIRM in part, and, for the reasons stated 

in the concurrently filed summary order, VACATE in part the 

judgments of the district court, and REMAND the matter for further 

proceedings consistent with this opinion and the concurrently filed 

summary order.