17

‐ 2965 (L)

United States v. Roye

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION

TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS

GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S

LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH

THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY

CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit,

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City

of New York, on the 16 th of January, two thousand nineteen.

PRESENT:

DENNIS JACOBS,

GUIDO CALABRESI,

Circuit Judges,

JED S. RAKOFF,* 1

District Judge.

_____________________________________ UNITED STATES OF AMERICA,

Appellant

‐ Cross

‐ Appellee,

‐ v. ‐ 17

‐ 2965 (L),

17

‐ 4057 (XAP)

JIMEL FRANK, AKA 30, AKA VELLY,

Defendant,

* Judge Jed S. Rakoff, United States District Court for the Southern District of New

York, sitting by designation.2 KARL ROYE, AKA EAGLE,

Defendant

‐ Appellee

‐ Cross

‐ Appellant.

__________________________________

FOR APPELLANT

‐ CROSS

‐ APPELLEE:

Sandra S. Glover, Assistant United States

Attorney, for John H. Durham, United

States Attorney for the District of

Connecticut, New Haven, CT.

FOR DEFENDANT

‐ APPELLEE

‐ CROSS

‐ APPELLANT:

Christopher Duby, Law Office of

Christopher Duby LLC, Hamden, CT.

Appeal from a judgment of the United States District Court for the District

of Connecticut (Arterton, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED IN PART AND REVERSED IN PART

.

Karl Roye was convicted after a five

‐ day jury trial of murder in aid of

racketeering, in violation of 18 U.S.C. §§ 1959(a)(1) & (2), and conspiracy to

commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5).

Roye and Jimel Frank, a co

‐ member of the Wall Street gang in Hartford,

murdered Anthony Parker, a member of a rival gang. The United States District

Court for the District of Connecticut (Arterton, J.) granted Roye’s post

‐ trial

motion for judgment of acquittal on the conspiracy count. The Government

appeals that decision. Roye cross

‐ appeals from the judgment of conviction

entered against him on the murder count, arguing: (1) there was insufficient

evidence to support his murder conviction; (2) the admission of allegedly

perjured testimony deprived him of the right to a fair trial; and (3) the district

court improperly admitted evidence obtained in a search executed prior to his3 indictment in this case. We assume the parties’ familiarity with the underlying

facts, the procedural history, and the issues presented for review.

Roye and Frank suspected Parker of breaking into and robbing a car

parked at Roye’s house (a Wall Street drug distribution site), and of brandishing

a gun at the mother of a Wall Street member. Roye and Frank agreed that the

necessary retaliation was to “take care of” Parker. JA 1002. Their

acquaintance, Anthony Owens, was buying a car from Parker, so Frank and Roye

knew where Parker would be and when he would be vulnerable to ambush.

Roye brought two guns and gloves. When Owens advised of Parker’s location

and that he was sitting alone in the car, Frank and Roye pulled into the

driveway, blocking Parker’s vehicle. Frank and Roye

‐‐ each holding a

gun

‐‐ walked around the car on opposite sides. After a short confrontation,

Frank and Roye both shot Parker, and fled.

Roye’s post

‐ trial motion for a judgment of acquittal argued there was

insufficient evidence to support the convictions. The district court denied the

motion on the substantive murder count and granted it on the conspiracy count.

The court also denied a motion for a new trial. The court entered judgment

against Roye on the murder count and sentenced him to life imprisonment.

These cross

‐ appeals followed.

1. The Government argues that sufficient evidence supported the

conspiracy verdict.

On a motion for a judgment of acquittal, the criminal conviction must be

upheld if “ any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

“[W]e review all of the evidence presented at trial in the light most favorable to

the government, crediting every inference that the jury might have drawn in

favor of the government.” United States v. Walker, 191 F.3d 326, 333 (2d Cir.

1999) (internal quotation marks omitted). “A judgment of acquittal can be

entered 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.” United States v. Cuti, 720 F.3d 453, 461 (2d Cir. 2013)4 (internal quotation marks omitted). We review a sufficiency challenge de novo.

See, e.g., United States v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010).

The district court concluded that the evidence was sufficient to support

only a finding that Roye and Frank agreed to rob Parker

‐‐ and that the murder

was a robbery gone bad. The Government cites to Frank’s testimony as to his

discussion with Roye regarding the appropriate response to Parker’s threat:

[Prosecutor]: [T]ell the jury what the discussion was involving

you, Kendall Brown, and Karl Roye, what did you

‐‐ what was the

discussion; what did you say, what was decided?

[Frank]: Oh, that this dude is tripping, and we need to see him for

that.

[Prosecutor]: I’m sorry, you had to what?

[Frank]: We had to

‐‐ we had to take care of him, pretty much.

[Prosecutor]: You had to take care of [Parker]?

[Frank]: Yeah, we was going to attempt to rob him as well, since

that’s what he was trying to do.

JA 1002. The Government also points to Frank’s testimony that he told Owens

on the day of the murder that he was going to shoot up the car that Parker was

in. Roye was not present for this conversation.

The Government also argues that the actions of Roye and Frank on the day

of the murder support an inference that they agreed to murder Parker, including:

Roye supplied guns and gloves for the ambush; Frank placed a call to Owens,

telling him to get out of the car Parker was driving (evidently for Owens’ safety);

Frank and Roye blocked Parker’s car in the driveway and approached from

either side of the car; Frank and Roye shot Parker in quick succession after a very

short verbal confrontation; and Frank and Roye fled the scene after the murder

without attempting to rob Parker. The Government emphasizes the fact that5 Frank approached the car from the far side of a fence; a position inconvenient for

a robbery, but good for a murder.

We agree with the Government that this evidence is sufficient to support a

finding that Roye conspired with Frank to murder Parker. Roye contends that

this evidence could also support a reasonable inference that Frank and Roye

agreed only to rob Parker. But where there are competing reasonable

inferences, we must credit the jury. See Cuti, 720 F.3d at 462 (“[T]he task of

choosing among competing, permissible inferences is for the [jury], not for the

reviewing court.”). The evidence supporting the conspiracy to murder was not

so “meager” as to justify overturning the jury’s verdict. Id. at 461.

Accordingly, we reverse the judgment of acquittal on the conspiracy count

and remand the case to the district court with direction to reinstate the jury

verdict, proceed to sentencing, and enter a judgment of conviction.

2. Roye challenges the sufficiency of the evidence supporting his

conviction for murder in aid of racketeering. Specifically, Roye argues that the

Government’s evidence does not support a finding that he murdered Frank to

increase or maintain his position in a racketeering enterprise (namely, Wall

Street). See, e.g., United States v. Ferguson, 246 F.3d 129, 136 (2d Cir. 2001)

(“[F]or criminal liability under [18 U.S.C. § 1959] to attach, there must be

evidence that [the defendant] acted with the expectation of gaining membership,

or in furtherance of an intimate involvement with the enterprise.” (citations

omitted)).

The jury heard evidence that: Roye was a member of Wall Street; it was a

fiercely territorial gang that sold narcotics in a defined Hartford neighborhood;

Frank and Roye considered Parker a threat to Wall Street; they suspected Parker

of breaking into and robbing narcotics from a car parked at Roye’s home and

brandishing a gun at the mother of a Wall Street member; and Frank and Roye

discussed “tak[ing] care of” Parker in retaliation for those incidents. JA 1002.

Such evidence is sufficient to establish that Roye murdered Parker in furtherance

of his membership in Wall Street. See United States v. Diaz, 176 F.3d 52, 95 (2d

Cir. 1999) (concluding that the motive element was met where the defendants6 furthered their gang membership by killing individuals they deemed threats to

the narcotics organization); Ferguson, 246 F.3d at 135 (noting that the element is

met where the Government demonstrates that “a defendant

. . . is an established

member of a criminal enterprise [and] acts in a way consistent with that

membership”).

3. Roye moves for a new trial on the ground that the Government

knowingly offered the perjured testimony of Anthony Owens.

At trial, Owens testified that Parker came to Owens’ house to finalize the

sale of a car to Owens, and, when Parker and Owens were driving to another

house in the neighborhood, Frank called Owens to tell him to get out of the car

because he and Roye were coming to ambush Parker. Roye cites an inconsistency

to demonstrate that Owens committed perjury at his trial: Owens testified that he

received Frank’s call after he got out of the car and was relieving himself in the

backyard, whereas at his plea colloquy several days earlier, Owens had testified

that he was still in the car with Parker when he received Frank’s call.

“[M]otions for a new trial based on the identification of perjured testimony

should be granted only with great caution and in the most extraordinary

circumstances.” United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992).

“[T]he defendant must show that (i) the witness actually committed perjury; (ii)

the alleged perjury was material; (iii) the government knew or should have

known of the perjury at [the] time of trial; and (iv) the perjured testimony

remained undisclosed during trial.” United States v. Cromitie, 727 F.3d 194, 221

(2d Cir. 2013) (internal quotation marks omitted). “The perjury is ‘material’ if

there is ‘any reasonable likelihood that the false testimony could have affected

the judgment of the jury.’” Id. at 221

‐ 22.

Roye failed to demonstrate that the alleged perjury was material or that it

remained undisclosed during trial. The inconsistency in Owens’ testimony was

fully explored before the jury. Defense counsel questioned Owens about the

inconsistency; and, when Owens doubled

‐ down on his assertion that he had left

the car when he received the call, defense counsel read Owens his prior

inconsistent statement from the plea colloquy. JA 847

‐ 49. Given this airing of7 the issue, there is no reasonable likelihood that the false testimony affected the

judgment of the jury. See Cromitie, 727 F.3d at 222

‐ 23.

Moreover, Roye has failed to present any evidence demonstrating that

Owens committed perjury at his trial

‐‐ the perjury could just as well have been

committed at Owens’ plea colloquy. See United States v. Bortnovsky, 879 F.2d

30, 33 (2d Cir. 1989) (“[T]he difference alone would not constitute perjury.”).

4. Finally, Roye challenges the district court’s admission into evidence of

testimony from a law enforcement agent that guns and ammunition were found

during a search of Roye’s home 18 months before Parker’s murder.

“We review a district court’s evidentiary rulings deferentially, mindful of

its superior position to assess relevancy and to weigh the probative value of

evidence against its potential for unfair prejudice.” United States v.

Abu

‐ Jihaad, 630 F.3d 102, 131 (2d Cir. 2010). “We will reverse an evidentiary

ruling only for abuse of discretion, which we will identify only if the ruling was

arbitrary and irrational.” Id. (internal quotation marks and citations omitted).

The district court reasonably concluded that the discovery of guns and

ammunition in Roye’s home 18 months earlier was relevant to Roye’s

involvement in a racketeering enterprise, a required element of proof for both

counts in the indictment. See United States v. Mejia, 545 F.3d 179, 206 (2d Cir.

2008). Moreover, the court minimized the risk of prejudice by instructing the

jury that the evidence should be considered only for the purpose of proving the

existence of the racketeering enterprise and not as evidence of Roye’s

involvement in Parker’s murder.8 We have considered the parties’ remaining arguments and find them to be

without merit. For the foregoing reasons, we AFFIRM IN PART AND

REVERSE IN PART the judgment of the district court. We remand the case to

the district court with directions that it reinstate the jury verdict on the

conspiracy count, proceed to sentencing, and enter a judgment of conviction.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court