Filed: Jan. 16, 2019
Latest Update: Mar. 03, 2020
Summary: 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 ASUMMARY ORD
Summary: 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 ASUMMARY ORDE..
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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 ASUMMARY 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 16th 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.
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 his
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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)
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(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 that
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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 defendants
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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 of
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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.
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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
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