United States v. Elder

Citation592 F.Supp.3d 48
Decision Date21 March 2022
Docket Number18-CR-92 (WFK)
Parties UNITED STATES of America, v. Ppassim ELDER and Wilbert Bryant, Defendants.
CourtU.S. District Court — Eastern District of New York

592 F.Supp.3d 48

Ppassim ELDER and Wilbert Bryant, Defendants.

18-CR-92 (WFK)

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

Signed March 21, 2022

592 F.Supp.3d 52

Andrey Spektor, Government Attorney, Bryan Cave Leighton Paisner LLP, New York, NY, Keith Daniel Edelman, Government Attorney, Anna L. Karamigios, Genny Ngai, DOJ-USAO, Brooklyn, NY, for United States of America.

Jin Ping Lee, The Law Office of Jin P. Lee, New York, NY, John F. Kaley, Doar Rieck & Mack, New York, NY, Thomas H. Nooter, Freeman, Nooter & Ginsberg, New York, NY, Michael T. Jaccarino, Aidala & Bertuna P.C., Brooklyn, NY, for Defendant Ppassim Elder.

Michael O. Hueston, Michael Hueston, Attorney at Law, Brooklyn, NY, Royce Russell, R-Square, Esq. PLLC, New York, NY, Eylan Schulman, Schulman Trial, PLLC, New York, NY, for Defendant Wilbert Bryant.


WILLIAM F. KUNTZ, II, United States District Judge:

On March 12, 2020, the United States of America filed a fourteen-count Superseding Indictment (the "Indictment") in this action. See ECF No. 230. Beginning on September 20, 2021, the Court presided over the jury trial of Ppassim Elder and Wilbert Bryant (collectively, "Defendants"). On October 1, 2021, the jury found Ppassim Elder guilty of Counts One through Thirteen, and Wilbert Bryant guilty of Counts Two, Seven, Eight, Nine, and Ten. The jury acquitted Ppassim Elder on Count Fourteen. Defendants now move pursuant to Federal Rule of Criminal Procedure 29 for a judgment of acquittal on Counts Two, Seven, Eight, Nine, and Ten of the Indictment, and pursuant to Federal Rule of Criminal Procedure 33 for a new trial. For the reasons set forth below, Defendants’ motions are DENIED.


On October 1, 2021, Defendants Ppassim Elder and Wilbert Bryant were convicted by a jury of (1) committing physical violence in furtherance of extortion and extortion conspiracy against Mahmoud and Hani Kasem, in violation of 18 U.S.C. § 1951(a) (Counts Seven and Eight); (2) using, brandishing, discharging and causing the death of Hani Kasem through the use of a firearm, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i)–(iii) and 924(j)(1) (Counts Nine and Ten); and (3) conspiring to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count Two). The jury also found

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Elder guilty of bank fraud conspiracy, in violation of 18 U.S.C. § 1349 (Counts One, Three, and Five); committing physical violence in furtherance of an extortion against Mohammed and Ibrahim Rabah, in violation of 18 U.S.C. § 1951(a) (Count Four); access device fraud, in violation of 18 U.S.C. §§ 1029(a)(1) and 1029(c)(1)(A)(i) (Count Six); conspiring to make false statements and making false statements, in violation of 18 U.S.C. §§ 371 and 1001(a)(2) (Counts Eleven and Twelve); and aggravated identity theft, in violation of 18 U.S.C. § 1028A (Count Thirteen). The jury acquitted Elder of the charge of obstruction of justice (Count Fourteen).

On November 1 and 10, 2021, Defendants filed motions for acquittal and for a new trial under Rules 29 and 33 of the Federal Rules of Criminal Procedure. See ECF Nos. 382 and 383. First, Defendants claim there was insufficient evidence to find them guilty beyond a reasonable doubt of Counts Two, Seven, Eight, Nine, and Ten. Second, Defendants argue this Court's decision to seat only jurors who had been vaccinated against COVID-19 violated their statutory and constitutional rights. The Court addresses each argument in turn.


I. Rule 29 Motions

A. Legal Standard

To grant a motion for acquittal under Rule 29, the Court must find the evidence was legally insufficient to establish Defendants’ guilt beyond a reasonable doubt. Fed. R. Crim. P. 29 ; see United States v. Teman , 465 F. Supp. 3d 277, 291 (S.D.N.Y. 2020) (Engelmayer, J.). "The question is not whether this Court believes that the evidence at trial established guilt beyond a reasonable doubt, but rather, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Mi Sun Cho , 713 F.3d 716, 720 (2d Cir. 2013) (per curiam) (emphasis in original) (alteration and internal citations omitted). Where "either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, the court must let the jury decide the matter." United States v. Autuori , 212 F.3d 105, 114 (2d Cir. 2000) (alteration and citation omitted). Indeed, it is not the role of the trial court to "substitute its own determination of ... the weight of the evidence and the reasonable inferences to be drawn for that of the jury." United States v. Guadagna , 183 F.3d 122, 129 (2d Cir. 1999) (alteration in original) (quoting Curley v. United States , 160 F.2d 229, 232 (D.C. Cir. 1947) ). Accordingly, a "court may enter a judgment of acquittal 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. Espaillet , 380 F.3d 713, 718 (2d Cir. 2004) (citation omitted).

A defendant challenging a jury's guilty verdict "bears a heavy burden." United States v. Martoma , 894 F.3d 64, 72 (2d Cir. 2017), cert. denied, ––– U.S. ––––, 139 S. Ct. 2665, 204 L.Ed.2d 1068 (2019) (internal quotation marks omitted); see also United States v. Heras , 609 F.3d 101, 105 (2d Cir. 2010) (internal quotation marks omitted); see also United States v. Hawkins , 547 F.3d 66, 70 (2d Cir. 2008). The evidence must be viewed "in the light most favorable to the government, crediting every inference that could have been drawn in the government's favor, and deferring to the jury's assessment of witness credibility and its assessment of the weight of the evidence." United States v. White , 7 F.4th 90, 98 (2d Cir. 2021) (internal quotation marks omitted).

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B. Application

The Government presented substantial evidence of Defendants’ guilt on Counts Two, Seven, Eight, Nine, and Ten, including over 150 exhibits, documentary evidence, financial records, and the testimony of thirty-nine cooperating, expert, and lay witnesses. Based on this record, any rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt. The Court therefore denies Defendants’ motion for a judgment of acquittal under Rule 29.

i. Count Two – Bank Fraud Conspiracy

Count Two of the Indictment alleged between July 2012 and August 2012, Defendants Elder and Bryant knowingly and intentionally conspired to execute a scheme and artifice to defraud TD Bank by falsely stating in an account-opening document Bryant was the beneficial owner of the account when in fact Elder was the beneficial owner of that account.

At trial, the Government presented witness testimony and bank records establishing the following set of facts. Elder first met Government witness Frederick McCoy in 2011 while they were incarcerated together on Rikers Island. Tr. 344-45. In the spring of 2012, Elder asked McCoy for permission to use a bank account in McCoy's name. Tr. 345-46. McCoy declined but connected Elder with Bryant, who was interested in committing the crime with Elder. Tr. 346-47.

In furtherance of the scheme, Bryant opened an individual checking account at TD Bank with a balance of $5.00. See GX 209A; Tr. 848-49. Approximately one month later, Bryant's account received a $32,000 wire transfer from an Oklahoma-based individual named Thomas Hardy. See GX 209B; GX 209C; Tr. 849-50. Shortly thereafter, Bryant made four cash withdrawals from the account, totaling $28,000. See GX 20B; GX 209D; Tr. 848-55.

At some point in 2012, Bryant had a conversation with McCoy, during which Bryant paid McCoy $1,000 in cash as a "finder's fee" for connecting Bryant with Elder. Tr. 347-48. Based on that conversation, McCoy understood Bryant and Elder had committed the crime. Id.

Other evidence introduced at trial showed that Elder and Bryant continued to engage in criminal banking activity. For example, Kristy Gabel, a former investigator with J.P. Morgan Chase Bank, testified an investigation into unauthorized withdrawals from the account of customer Amy Kronethal revealed Bryant was involved in a fraudulent takeover of the account in 2012. Tr. 724-38; GX 204. The investigation, which was supported by related bank records, revealed Kronethal's account information was altered to include the phone number of Ahmad Zahrieh (a Government witness and one of Elder's bank fraud co-conspirators) and the incorrectly spelled email address of Wilbert Bryant. Tr. 732-33; GX 204. On August 17, 2012, someone using Kronethal's account attempted to send $1,750 to Bryant. Tr. 734-36; GX 204. However, the user then cancelled that payment, Tr. 735-36, updated the account's email address to Bryant's correct email address, Tr. 737; GX 204; GX 505, and again attempted to send him $1,750 from the account, Tr. 736-37; GX 204. This time, a JP Morgan employee cancelled the payment due to the suspicious nature of the transaction. Tr. 737-38. Although Elder was not identified in the bank records, the Government introduced evidence...

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