United States v. Pirk

• Decision Date: 19 December 2018
• Docket Number: 1:15-CR-00142 EAW
• Parties: UNITED STATES OF AMERICA, v. DAVID PIRK, ANDRE JENKINS a/k/a Little Bear, and TIMOTHY ENIX a/k/a Blaze, Defendants.
• Court: U.S. District Court — Western District of New York

UNITED STATES OF AMERICA,
v.
DAVID PIRK, ANDRE JENKINS a/k/a Little Bear, and TIMOTHY ENIX a/k/a Blaze, Defendants.

1:15-CR-00142 EAW

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

December 19, 2018

DECISION AND ORDER

I. INTRODUCTION

Defendants David Pirk ("Pirk"), Andre Jenkins ("Jenkins"), and Timothy Enix ("Enix") (collectively "Defendants") were convicted after a four-month jury trial on May 18, 2018, of various crimes as charged in the Second Superseding Indictment pertaining to the operation of the Kingsmen Motorcycle Club ("KMC"). Sentencing is scheduled for February 28, 2019.

This Decision and Order resolves Defendants' post-verdict motions filed pursuant to Federal Rules of Criminal Procedure 29(c) and 33 (Dkt. 1322; Dkt. 1325; Dkt. 1326), except for Defendants' challenges based upon Sessions v. Dimaya, ___ U.S. ___, 138 S.Ct. 1204 (2018).¹ Upon due consideration of the parties' submissions and the evidence set forth during trial, and for the reasons set forth below, the Court denies Defendants' post-

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verdict motions, except the Court continues to reserve decision on the post-verdict motions seeking to set aside each Defendant's conviction on Count 2 based upon Dimaya.

II. FACTUAL AND PROCEDURAL BACKGROUND

Defendants were charged, along with 13 other defendants,² by a 46-count Second Superseding Indictment returned on March 16, 2016. (Dkt. 33 (hereinafter "the Indictment" or "SSI")). The Indictment portrayed a violent motorcycle club engaged in drug trafficking and firearms offenses, obsessed with maintaining its perceived power and preventing members from "jumping patch" to rival biker clubs through the use of threats, intimidation, and violence, ultimately escalating to the execution-style murders of two allegedly disloyal members (Paul Maue ("Maue") and Daniel "DJ" Szymanski ("Szymanski")) on September 6, 2014, at the KMC North Tonawanda Chapter clubhouse. (Id. at ¶ 59). The KMC operated clubhouses in New York, Tennessee, Pennsylvania, and Florida. The evidence produced at trial³ demonstrated that the organization functioned through a strict hierarchal structure governed by written bylaws with dues paid through each KMC chapter to the national organization in Florida. Pirk served at the top of the organization as National President, and Enix operated as his righthand man as the

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Florida/Tennessee Regional President. Jenkins served as a Nomad, an enforcer who acted on behalf of the National President and who killed Maue and Szymanski.

The Indictment charged Pirk in eight separate counts,⁴ as follows:

(1) Count 1—RICO⁵ Conspiracy in violation of 18 U.S.C. § 1962(d);

(2) Count 2—Possession of Firearms in Furtherance of Crime of Violence (the RICO Conspiracy charged in Count 1), in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2;

(3) Count 3 (Count 19 in SSI)—Murder in Aid of Racketeering in violation of VICAR,⁶ 18 U.S.C. §§ 1959(a)(1) and 2;

(4) Count 4 (Count 20 in SSI)—Murder in Aid of Racketeering in violation of VICAR, 18 U.S.C. §§1959(a)(1) and 2;

(5) Count 5 (Count 21 in SSI)—Possession and Discharge of Firearm in Furtherance of Crime of Violence (the VICAR murder charged in Count 3), in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j), and 2;

(6) Count 6 (Count 22 in SSI)—Possession and Discharge of Firearm in Furtherance of Crime of Violence (the VICAR murder charged in Count 4), in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j), and 2;

(7) Count 8 (Count 45 in SSI)—Using and Maintaining the KMC South Buffalo Chapter's Clubhouse for Drug Dealing, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2; and

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(8) Count 9 (Count 46 in SSI)—Possession of Firearms in Furtherance of Drug Trafficking Crime (the Drug Premises violation charged in Count 8), in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2.

Jenkins was charged in the same eight counts as Pirk, and he was also charged in a ninth count—Count 7 (Count 23 of the SSI)—with being a Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In addition, the Indictment alleged Special Sentencing Factors for Pirk and Jenkins on Count 1, pertaining to the deaths of Maue and Szymanski.

The Indictment charged Enix with a total of four counts: Count 1 (the RICO conspiracy in violation of 18 U.S.C. § 1962(d)); Count 2 (possession of firearms in furtherance of RICO conspiracy in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2); Count 8 (Using and Maintaining the KMC South Buffalo Chapter's clubhouse for drug dealing, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2); and Count 9 (possession of firearms in furtherance of drug trafficking, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2).

The trial spanned a total of four months. Jury selection commenced on January 16, 2018, and consumed multiple days of written and oral questioning, in both a group and individual setting, driven in large part by the pretrial publicity that had surrounded the case, including Jenkins' murder conviction in New York State court and the Court's decision to exclude that evidence. Jury selection concluded on February 7, 2018, when twelve jurors and six alternates were selected. Opening statements began on February 20, 2018, with the Government commencing its presentation of proof on February 22, 2018. The Government's case continued for 10 weeks through May 3, 2018, when the Government

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rested. The Government called over 60 witnesses, including many high-ranking KMC members who cooperated with the Government and provided inside information as to the operation of the club. The Government entered over 800 exhibits into evidence including videos and other photographic evidence, phone records, Facebook messages, DNA evidence, ballistic evidence, and KMC meeting minutes.

Defendants put on a case that lasted one week. Pirk presented proof on May 7 through 9, including his own testimony, and Enix presented proof on May 9 through 11, including his own testimony. Jenkins elected not to present any proof.

Thus, the proof alone consumed 11 full weeks. Counsel presented closing arguments on May 14 and 15, and the Court charged the jury on May 15 and 16, with the jury commencing its deliberations on May 16, 2018.

On May 18, 2018, the jury returned guilty verdicts with respect to each Defendant on each of the counts charged. (Dkt. 1258; Dkt. 1259).

On June 25, 2018, pursuant to the schedule set by the Court, Defendants filed post-verdict motions pursuant to Federal Rules of Criminal Procedure 29(c) and 33. (Dkt. 1322 (Enix); Dkt. 1325 (Pirk); Dkt. 1326 (Jenkins)). On August 1 and 3, 2018, the Government filed responses in opposition of each of Defendants' motions. (Dkt. 1367 (Enix Opp.); Dkt. 1370 (Pirk Opp.); Dkt. 1371 (Jenkins Opp.)). On August 10, 2018, Defendants each filed reply papers in further support of their motions. (Dkt. 1379 (Jenkins Reply); Dkt. 1381 (Pirk Reply); Dkt. 1382 (Enix Reply)). On August 17, 2018, the Government filed a consolidated sur-reply to Defendants' reply papers. (Dkt. 1388). Oral argument was held

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before the undersigned on August 21, 2018, at which time the Court reserved decision. (Dkt. 1391).⁷

III. LEGAL STANDARDS

A. Rule 29 Standard

Rule 29(c)(1) of the Federal Rules of Criminal Procedure provides that "[a] defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict. . . ." The standard on a motion for a judgment of acquittal is stringent, and a defendant claiming that he was convicted based on insufficient evidence "bears a very heavy burden." United States v. Blackwood, 366 F. App'x 207, 209 (2d Cir. 2010) (quoting United States v. Desena, 287 F.3d 170, 177 (2d Cir. 2002)). "In considering a motion for judgment of acquittal, the court must view the evidence presented in the light most favorable to the government." United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999). Accordingly, "[a]ll permissible inferences must be drawn in the government's favor." Id.

"If any rational trier of fact could have found the essential elements of the crime, the conviction must stand." United States v. Puzzo, 928 F.2d 1356, 1361 (2d Cir. 1991)

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(quotation and citation omitted). "The test is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt." Id. (quotation and citation omitted). The evidence must be viewed "in its totality, not in isolation," United States v. Huezo, 546 F.3d 174, 178 (2d Cir. 2008) (quotation and citation omitted), "as each fact may gain color from others," Guadagna, 183 F.3d at 130. The Court may enter a judgment of acquittal only if the evidence that the defendant committed the crime is "nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." Id. (quotation and citation omitted).

A district court must be careful not to usurp the role of the jury. "Rule 29(c) does not provide the trial court with an opportunity to 'substitute its own determination of . . . the weight of the evidence and the reasonable inferences to be drawn for that of the jury.'" Id. at 129 (alteration in original) (quoting United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984)). "[A] jury's verdict will be sustained if there is substantial evidence, taking the view most favorable to the government, to support it." United States v. Nersesian, 824 F.2d 1294, 1324 (2d Cir. 1987). The government is not required "to preclude every reasonable hypothesis which is consistent with innocence." United States v. Chang An-Lo, 851 F.2d 547, 554 (2d Cir. 1988) (citing United States v. Fiore, 821 F.2d 127, 128 (2d Cir. 1987)). Further, "the jury's verdict may be based entirely on circumstantial evidence." United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995).

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B. Rule 33 Standard

Rule 33 of the Federal Rules of Criminal Procedure allows a court to vacate a judgment and grant a new trial...