19

- 610

- cr (L) United States v. Jenkins


## In the 

# United States Court of Appeals **For the Second Circuit** 

August Term, 20 21 No s . 19

- 610

- cr (L); 19

- 637

- cr (Con) , 19

- 2778

- cr (Con)
U NITED S TATES OF A MERICA , Appellee ,

v. A NDRE J ENKINS , AKA L ITTLE B EAR , D AVID P IRK , T IMOTHY E NIX , AKA B LAZE , Defendant s - Appellant s . *

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

.

A RGUED : M AY 18 , 20 2 2 D ECIDED : A UGUST 5, 2022
Before: K EARSE , J ACOBS , and N ARDINI , 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 respe ct to vacatur of Pirk’s and Jenkins’s convictions on C ount 2 of the Superseding Indictment. I n 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 evaluati ng 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.

K ATHERINE A. G REGORY , Assistant United States Attorney, for Trini E. Ross , United S tates Attorney for the Western District of New York , Buffalo , NY, for Appellee

. M ICHAEL S. D EAL , Legal Aid Bureau of Buffalo, Inc., Buffalo , NY , for Defendant

Appellant Jenkins

. W ILLIAM T. E ASTON (Cheryl M. Buth, Meyers Buth Law Group, Orchard Park, NY, on the brief ), Easton Thompson3 Kasperek Shiffrin LLP, Rochester, NY, for Defendant

- Appellant Pirk

. J AMES W. G RABLE , J R
. ( Terrence M. Connors, Rebecca F. Izzo , on the brief ), Connors LLP, Buffalo, NY, for Defendant

Appellant E nix

.

W ILLIAM J. N ARDINI , 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 addre ss 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. Back ground 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 po sition 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 the ir 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 agains t 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 may5 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 y ou 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 shou ld 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. Howeve r, 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 Defendants

Appellants on each of the charges in the Superseding Indictment. This appeal followed.
II. Discussion On appeal, Pirk claim s that the district court’s interested

witness instruction undermined the presumption of innoce nce 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 alterat ion 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 differe nt from those that [Defendants

- Appellants] submitted ,” Joint App’x at 17951, Pirk did not specifically object to the district court’s proposed7 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 18 4, 193 (2d Cir. 2020) (quoting Jones v. United States , 527 U.S. 373, 388 (1999)) ; s ee 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 objecti on 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 te stimony 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). W e held that this instruction undermined the presumption of innocence and said that its “critical
defect” w as “its assumption that the defendant is guilty.” Id. at 247.9 Indeed, s uch 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 i d. 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 prin ciple 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 presup poses the defendant’s guilt.” Id. at 182 (internal quotation marks omitted). Finally, i n 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
witness es as possess ing a motive to testify falsely) , it did so implicitly11 because “[i]t is a matter of common sense that the defendant in a criminal case has a prof ound 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

t rial 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 the se 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. T he instructions here w ere 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 intere sted witnesses as those12 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 t hat 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 whe n 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 erro r) 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 t he district court’s interested

- witness
instructions did not assume the defendant s’ 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 ma tter for further proceedings consistent with this opinion and the concurrently filed summary order.