United States v. Carrano

• Decision Date: 04 December 2018
• Docket Number: 17-Cr-460 (SHS)
• Citation: 340 F.Supp.3d 388
• Parties: UNITED STATES of America, v. Thomas CARRANO, Defendant.
• Court: U.S. District Court — Southern District of New York

340 F.Supp.3d 388

UNITED STATES of America,

v.Thomas CARRANO, Defendant.

17-Cr-460 (SHS)

United States District Court, S.D. New York.

Signed December 4, 2018

Richard David Willstatter, Green & Willstatter, White Plains, NY, Andrew Constan Karpf, Laurence Silverman & Associates, Huntington, NY, for Defendant.

Michael McGinnis, Alison Gainfort Moe, Timothy Turner Howard, United States Attorney's Office, SDNY, New York, NY, for Plaintiff.

OPINION

Sidney H. Stein, U.S.D.J.

Defendant Thomas Carrano was convicted after a jury trial of conspiracy to violate the Animal Welfare Act, 7 U.S.C. § 2131 et seq. After terminating his trial counsel and retaining new counsel, Carrano moved for a judgment of acquittal or, alternatively, for a new trial pursuant to Federal Rules of Criminal Procedure 29 and 33, respectively. For the reasons set forth below, the Court has concluded that the evidence at trial was most certainly sufficient to establish defendant's guilt beyond a reasonable doubt and that the interests of justice do not require a new trial. Therefore, Carrano's motion is denied.

I. Background

In February 2016, law enforcement officers from the New York City Police Department ("NYPD") animal cruelty investigation squad responded to a neighbor's complaint that Hector Cruz was keeping roosters in his Bronx backyard. (Tr. 168–69, 204–05.) As a result of the ensuing investigation of whether Cruz was participating in cockfighting, Thomas Carrano also became a target of the investigation. (Id. at 345–47.) Both men were active in the New York chapter of the United Gamefowl Breeders Association ("NYUGBA"), for which Carrano served as president. (Id. at 188, 458; Gov't Ex. 653G.)

As part of that investigation, NYPD officers, U.S. Department of Agriculture agents, and ASPCA agents searched Carrano's property in Ontario, New York (Tr. at 215–16, 349–50), where they seized a bounty of evidence, including gaffs and postizas—sharp metal and plastic spurs, respectively, that are attached to chickens' legs.¹ (Tr. 286–90.) Some of these instruments were covered in chicken blood. (Id. at 291, 440.) Officers also seized a gallimaufry of incriminating evidence, including vitamin supplements, protective sparring muffs, syringes, a training dummy, and medicine used to stop bleeding in animals.

(Id. at 67, 251–52, 249, 259–60.) Additionally, some of the birds that they found had been dubbed, meaning they had had their combs, waddles, and earlobes removed (Id. at 58, 229), which is consistent with preparing roosters to participate in cockfights (Id. at 57–58, 83).

In building the case against Carrano, law enforcement also collected documents from Tennessee that defendant had purchased gaffs from Dwight Orr, a well-known gaff maker there. (Gov't Ex. 208A; Tr. 484–87, 570–71.) Law enforcement also accessed Carrano's extensive text and Facebook communications, including his personal social media account and the Facebook account he managed on behalf of NYUGBA. (See Tr. 146–47, 405–07.)

On July 20, 2017, a grand jury returned an indictment charging Carrano with a single count of conspiring to violate the Animal Welfare Act. (Doc. 1.) Superseding indictment S1 charged Carrano with conspiring to accomplish two separate objects in violation of the Act: specifically, (1) possessing and exchanging birds for purposes of having them fight, and (2) possessing and exchanging knives, gaffs, and other sharp instruments to be attached to a bird's leg in a cockfight. (Doc. 25.) Carrano pled not guilty to both indictments. (Docs. 6, 34.)

Defendant was tried before a jury from June 18 to 22, 2018. On June 22, 2018, the jury returned a verdict of guilty (Tr. at 730–31), and Carrano subsequently moved for a judgment of acquittal or, in the alternative, a new trial pursuant to Fed. R. Crim. P. 29 and 33. (Doc. 81.)

II. Discussion

Defendant contends that the government failed to prove he joined a conspiracy to violate the Animal Welfare Act. He also complains that the indictment omitted an essential element of the offense—the interstate commerce requirement—with regard to one of the conspiratorial objectives. Finally, Carrano urges that his Sixth Amendment right to counsel was violated by the poor performance of his trial counsel. As set forth below, each of Carrano's arguments fail to pass the high bar to entering a judgment of acquittal or ordering a new trial.

A. Legal Standard

Pursuant to Fed. R. Crim. P. 29, the Court may enter a judgment of acquittal only if no rational trier of fact could have found the essential elements of the offense—in this case conspiracy to violate the Animal Welfare Act—beyond a reasonable doubt. United States v. Cuti , 720 F.3d 453, 461 (2d Cir. 2013) ; United States v. Odiase , 312 F.Supp.3d 432, 434 (S.D.N.Y. 2018). In evaluating whether this high standard has been met, the Court considers the evidence in the light most favorable to the government, resolving all reasonable inferences in the government's favor. United States v. Persico , 645 F.3d 85, 104 (2d Cir. 2011) (citation omitted); Odiase , 312 F.Supp.3d at 434.

If "the interest of justice so requires," the Court may grant a new trial pursuant to Fed. R. Crim. P. 33(a). The decision to second-guess the jury's verdict should only occur in "extraordinary circumstances" where allowing a guilty verdict to stand would pose a manifest injustice, such as if there were a genuine concern that an innocent person may have been convicted. United States v. Cacace , 796 F.3d 176, 191 (2d Cir. 2015) ; United States v. McCourty , 562 F.3d 458, 475 (2d Cir. 2009) ; Odiase , 312 F.Supp.3d at 434.

B. The Evidence Presented at Trial Amply Supported the Elements of the Charged Conspiracy.

Defendant first offers a scattershot argument that there was insufficient evidence from which the jury could find beyond a reasonable doubt each of the elements of conspiracy to violate the Animal Welfare Act. Although Carrano presents his view of the testimony and exhibits presented at trial, his presentation fails to grapple with the legal standard used to evaluate the sufficiency of the evidence at this post-trial stage. He catalogs the substantial evidence against him, including the training videos, the vitamin supplements, the gaffs and postizas, and the dubbed birds. (E.g. , Tr. 57–58, 229, 251, 286–90.) All of these, he maintains, are consistent with showing chickens at poultry shows, a legal activity.

The "task of choosing among competing, permissible inferences is for the [jury and] not for the reviewing court." United States v. Weingarten , 632 F.3d 60, 62 (2d Cir. 2011) (citation omitted and alteration in original); see also Cuti , 720 F.3d at 461–62. The jury could have inferred, as Carrano's trial attorney argued they should, that this evidence did not constitute a basis upon which to find that Carrano participated in illicit activity. Yet the physical and video evidence found on defendant's property was also entirely consistent with the inference that Carrano was conspiring to engage in cockfighting. The jury, therefore, understandably rejected defendant's theory, as is evident from the verdict it reached within hours of starting deliberations.

Moreover, not all the evidence against Carrano ambiguously supported twin inferences of legal and illegal conduct. The jury learned of many inculpatory statements from Carrano's text messages and personal and professional Facebook accounts. For example: "[L]ike you I fight roosters .... Amen I just love them fighting birds since I am 8 years I fought roosters out of abandond cars in the bronx and fought them in Castles." (Gov't Ex. 636A; Tr. 195.) "All we do is fight roosters but you propably like that." (Gov't Ex. 643A; Tr. at 203.) "[G]ot him in the drag I thought I lost an eye but I didnt."² (Gov't Ex. 602A; Tr. at 184.) "Wish it was diffrent but these crazy laws make things difficult they need to regulate this sport and make it legal." (Gov't Ex. 627A; Tr. at 214.) "Its our only defense friend Preservation and showing." (Gov't Ex. 653G; Tr. at 325.) From these illustrative examples of the many in the record, the jury was entitled to infer that Carrano was conspiring to engage in cockfighting and not participating solely in legal poultry shows.

Carrano additionally alleges that there was inadequate proof of an overt act committed in furtherance of the charged conspiracy. However, viewing the trial record in the government's favor, there was more than ample evidence for the jury to find multiple overt acts. For example, text messages provide support for a finding that co-conspirator Hector Cruz committed an overt act by mailing Carrano roosters in furtherance of the conspiracy. Their exchange included such statements as, "I sent you a pair of Boles Blacks,"³ with Carrano responding, "Good morning hector birds arrived." (Gov't Ex. 504; Tr. 415.) Defendant insists that mailing the birds could not be in furtherance of the conspiracy because Cruz only sent Carrano a small fraction of his roost. Cruz would have mailed Carrano more of his birds, the defense argument goes, if he were trying to get rid of his flock in order to evade law enforcement to further a conspiracy. Again, this is a possible inference, but the jury was certainly permitted to infer that sending any chickens was meant to prevent those birds from being seized by police in the Bronx.

The latter inference is made even more plausible given a Facebook exchange in which Carrano indicated that one of Cruz's roosters was subsequently killed in a cockfight. A message sent from the NYUGBA account, which defendant operated, to a third individual stated: "I held some birds for him [Cruz] because he said cops came to give him a visit didnt hear from him in months so I had some friends hold them they lost a rooster by showing...." (Gov't Ex. 627A; Tr. 215.) In light of trial testimony that "going to show" birds was code for cockfighting as part of the effort to avoid attention from law enforcement, Tr. 72, the...