United States v. Pirk

• Decision Date: 24 July 2017
• Docket Number: 1:15–CR–00142 EAW
• Citation: 267 F.Supp.3d 444
• Parties: UNITED STATES of America, v. David PIRK, Timothy Enix a/k/a Blaze, Filip Caruso a/k/a Filly, Edgar Dekay, II a/k/a Ed a/k/a Special Ed, Jason Williams a/k/a Toop, Thomas Koszuta a/k/a Kazoo, Gregory Willson a/k/a Flip, Emmett Green, Robert Osborne, Jr., Stanley Olejniczak, Jack Wood a/k/a Jake a/k/a Snake, Ryan Myrtle, Thomas Scanlon a/k/a Tom, Glen Stacharczyck a/k/a Turbo, Sean McIndoo a/k/a Professor, Defendants, Andre Jenkins, a/k/a Little Bear, Defendant–Movant.
• Court: U.S. District Court — Western District of New York

267 F.Supp.3d 444

UNITED STATES of America,

v.David PIRK, Timothy Enix a/k/a Blaze, Filip Caruso a/k/a Filly, Edgar Dekay, II a/k/a Ed a/k/a Special Ed, Jason Williams a/k/a Toop, Thomas Koszuta a/k/a Kazoo, Gregory Willson a/k/a Flip, Emmett Green, Robert Osborne, Jr., Stanley Olejniczak, Jack Wood a/k/a Jake a/k/a Snake, Ryan Myrtle, Thomas Scanlon a/k/a Tom, Glen Stacharczyck a/k/a Turbo, Sean McIndoo a/k/a Professor, Defendants,Andre Jenkins, a/k/a Little Bear, Defendant–Movant.

1:15–CR–00142 EAW

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

Signed July 24, 2017

Brendan T. Cullinane, Joseph M. Tripi, U.S. Attorney's Office, Buffalo, NY, Marianne Shelvey, U.S. Department of Justice/Organized Crime Section, Washington, DC, for United States of America.

Joseph A. Agro, Thomas J. Eoannou, John Patrick Pieri, Emily P. Trott, Kevin W. Spitler, Michael J. Stachowski, Buffalo, NY, Thomas F. Keefe, Williamsville, NY, Cheryl Meyers Buth, Meyers Buth Law Group PLLC, Orchard Park, NY, William T. Easton, Rochester, NY, Terrence M. Connors, James W. Grable, Jr., Connors LLP, Buffalo, NY, Barry Nelson Covert, Lipsitz Green Scime Cambria LLP, Buffalo, NY, A. Joseph Catalano, Niagara Falls, NY, Lori Ann Hoffman, Tully Rinckey PLLC, Buffalo, NY, Andrew D. Brautigam, Brautigam & Brautigam, LLP, Fredonia, NY, John J. Molloy, West Seneca, NY, Lawrence J. Desiderio, Law Office of Lawrence Desiderio, Buffalo, NY, Daniel C. Oliverio, Reetuparna Dutta, Patrick E. Fitzsimmons, Spencer Leeds Durland, Timothy W. Hoover, Hodgson Russ LLP, Buffalo, NY, Mehmet K. Okay, The Okay Law Firm, Batavia, NY, Mark J. Mahoney, Harrington and Mahoney, Buffalo, NY, for Defendants.

Barry Nelson Covert, Herbert L. Greenman, Lipsitz Green Scime Cambria LLP, Buffalo, NY, Michael S. Deal, DeMarie & Schoenborn, P.C., Buffalo, NY, Andrew C. LoTempio, Buffalo, NY, for Defendant–Movant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Defendant Andre Jenkins ("Jenkins") is one of 12 remaining defendants¹ named in a 46-count Second Superseding Indictment (Dirt. 33) ("Indictment") returned on March 16, 2016, alleging various crimes, including a conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. ("RICO"), pertaining to the operation of the Kingsmen Motorcycle Club ("KMC"). The Indictment alleges several predicate acts to support the RICO conspiracy count, but the most significant allegations relate to the murders of Paul Maue and Daniel "DJ" Szymanski on September 6, 2014. Jenkins was prosecuted and convicted in state court for those murders and for a related weapons possession offense, and he contends that his prosecution in federal court for those same alleged crimes violates the Double Jeopardy Clause of the Fifth Amendment.

Presently before the Court is Jenkins' motion to dismiss the Indictment based on this double jeopardy argument, or for an evidentiary hearing and discovery on the applicability of the dual sovereignty doctrine. (Dkt. 522 at ¶¶ 79–91). Because the Court can determine that the dual sovereignty doctrine applies based on the record before it, and there is no need for an evidentiary hearing, the Court denies Jenkins' motion. Moreover, and in the alternative, the Court concludes that under the "same elements" test—the applicable standard for evaluating a double jeopardy challenge—the current prosecution does not violate the Double Jeopardy Clause.

BACKGROUND

On August 20, 2015, Jenkins was convicted in Niagara County Supreme Court of one count of first-degree murder, two counts of second-degree murder, and one count of second-degree criminal possession of a weapon, for the murders of Paul Maue and Daniel "DJ" Szymanski. (Dkt. 637–1 at ¶¶ 3, 4, 7, 8). Jenkins was sentenced principally to life without parole; he is currently appealing his convictions. (Id. at ¶ 8; Dkt. 522 at ¶ 5).

Jenkins is charged in this Indictment with the following counts:

Count 1: RICO conspiracy, in violation of 18 U.S.C. § 1962(d) (as to all Defendants);

Count 2: Possession of firearms in furtherance of a crime of violence (the RICO conspiracy charged in Count 1), in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2 (as to all Defendants);

Count 19: Murder in aid of racketeering, in violation of 18 U.S.C. §§ 1959(a)(1) and (2) (as to defendant David Pirk ("Pirk") and Jenkins);

Count 20: Murder in aid of racketeering, in violation of 18 U.S.C. §§ 1959(a)(1) and (2) (as to Pirk and Jenkins);

Count 21: Possession and discharge of firearm in furtherance of a crime of violence (murder in aid of racketeering charged in Count 19), in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j), and 2 (as to Pirk and Jenkins);

Count 22: Possession and discharge of firearm in furtherance of a crime of violence (murder in aid of racketeering charged in Count 20), in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j), and 2 (as to Pirk and Jenkins);

Count 23: Felon in possession of a firearm, in violation of 18 U.S.C §§ 922(g)(1) and 924(a)(2) (as to Jenkins only);

Count 45: Using and maintaining premises for drug dealing, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 (as to all Defendants); and

Count 46: Possession of firearms in furtherance of drug trafficking crime (use and maintenance of premises for drug dealing charged in Count 45), in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2 (as to all Defendants).

(Dkt. 33). In short, the murders on September 6, 2014, give rise to some (but not all) of the counts set forth in the Indictment.

Jenkins filed his motion based on double jeopardy grounds on March 7, 2017, as part of his pretrial omnibus motions. (Dkt. 522). On April 7, 2017, the Government filed a response to Jenkins' pretrial motions. (Dkt. 554). On May 5, 2017, Jenkins filed a reply. (Dkt. 575). Oral argument was held before this Court on May 9, 2017 (Dkt. 593), and the Court gave Jenkins an opportunity to file a supplemental brief addressing whether the offenses of his state court convictions are the same in fact and in law as those charged in this Indictment, such that double jeopardy is violated, (Dkt. 585). On June 16, 2017, Jenkins filed two memoranda: one arguing that the Court should look beyond the elements of the statutes of his state convictions and those charged in this Indictment, consider that the conduct for which he was prosecuted in state court is the same for which he is being prosecuted federally, and dismiss on double jeopardy grounds (Dkt. 636), and another arguing that the dual sovereignty doctrine does not apply (Dkt. 637). In support of the latter memorandum, Jenkins submitted the declaration of Dominic Saraceno, Esq. (one of Jenkins' defense attorneys in the state court proceeding); excerpts of transcripts of the state court proceeding; and a copy of a heavily-redacted document provided by the FBI to the attorneys in the state court proceeding. (Dkt. 637–1; Dkt. 637–2; Dkt. 637–3; Dkt. 637–4). On July 14, 2017, the Government filed a supplemental brief in opposition to Jenkins' arguments, which is supported by the affidavit of Assistant U.S. Attorney Joseph M. Tripi (the lead prosecutor in this federal case), and a proffer agreement signed by Jenkins. (Dkt. 673; Dkt. 673–1; Dkt. 673–2).

DISCUSSION

Although Jenkins acknowledges that, in general, the "dual sovereignty doctrine" allows two separate sovereigns to prosecute a defendant who violates the laws of both sovereigns in a single act, he argues that this is "one of those rare examples" where the doctrine does not apply because the state prosecutors were not acting independently when they prosecuted Jenkins. (Dkt. 522 ¶ 87). According to Jenkins, the state prosecution was, in essence, a prosecution by the federal government because it controlled the investigation, charge decision, and use of evidence by the state prosecutors. (Id. at ¶¶ 83–87; see Dkt. 637).² As an alternative to outright dismissal, Jenkins seeks disclosure of information concerning the federal government's involvement in the state prosecution and a hearing to determine whether the federal government should be allowed to proceed and what role it played in the state prosecution. (Id. at ¶¶ 90–91; Dkt. 637 at 5–6).

Jenkins also argues that the federal prosecution violates double jeopardy because "the range of conduct proven against [him] in the New York State prosecution virtually mirrors the conduct for which the [federal] government now attempts to prosecute him." (Dkt. 636 at 18).

For the reasons discussed below, Jenkins' argument that the dual sovereignty doctrine does not apply is without merit, and no additional fact-finding or discovery is warranted. As a result, the Court need not reach his "same conduct"-based arguments, but alternatively finds that, under the applicable "same elements" test, the current prosecution does not violate double jeopardy.

I. Dual Sovereignty

A. General Principles

The Double Jeopardy Clause of the Fifth Amendment states as follows. "No person shall be ... subject for the same offence to be twice put in jeopardy of life or limb...." U.S. Const. amend. V. "The double jeopardy clause protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." United States v. Persico, 832 F.2d 705, 710 (2d Cir. 1987) (holding that double jeopardy did not bar defendants' RICO convictions that were predicated on acts related to a bribery scheme after defendants pleaded guilty to bribery charges); see also United States v. Basciano, 599 F.3d 184, 196 (2d Cir. 2010) ("This Double Jeopardy Clause protects against both multiple punishments and successive prosecutions for the same offense, regardless of whether a first prosecution resulted in conviction or acquittal.").

The "well-established ... doctrine of dual sovereignty ... holds that a state prosecution does not bar a subsequent federal prosecution of the same...