United States v. Thornhill
| Decision Date | 28 July 2014 |
| Docket Number | Case No. 11–CR–958 KMK. |
| Citation | 34 F.Supp.3d 334 |
| Court | U.S. District Court — Southern District of New York |
| Parties | UNITED STATES of America v. Mobutu THORNHILL, Defendant. |
Rebecca Mermelstein, Esq., Assistant United States Attorney, United States Attorney's Office, Southern District of New York, for the Government.
Andrew G. Patel, Esq., Lauren Sarah Kessler, Esq., Law Office of Andrew G. Patel, New York, NY, for Defendant Mobutu Thornhill.
On June 20, 2012, Defendant Mobutu Thornhill (“Defendant”) was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), in a trial before this Court. Defendant now brings this Motion for a New Trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, alleging that his trial counsel's ineffectiveness rendered his trial fundamentally unfair, in violation of the Sixth Amendment of the United States Constitution. For the reasons given herein, Defendant's Motion is denied.
Prior to his trial before this Court, Defendant was acquitted in state court of criminal possession of a weapon in the second degree. Because Defendant's Motion depends in large part on the argument that the absence of certain testimony at his federal trial explains the difference in outcomes between his state and federal trials, the Court will describe both trials in some detail before proceeding to its discussion of the pertinent legal principles.
On September 17, 2010, a Westchester County grand jury returned an indictment against Defendant, charging him with criminal possession of a weapon in the second degree, in violation of New York Penal Law § 265.03 ; criminal possession of a weapon in the third degree, in violation of New York Penal Law § 265.02 ; and resisting arrest, in violation of New York Penal Law § 205.30. (State Trial Tr. 170, 413–14; Def.'s Mem. of Law in Supp. of Mot. for a New Trial (“Def.'s Mem.”) 2 (Dkt. No. 24.) Trial began on March 23, 2011. (State Trial Tr. 126.) In her opening statement, Assistant District Attorney Nadine Nagler (“ADA Nagler”) told the jury that (Id. at 170.) Defendant's state-trial counsel, Theresa M. Gerardi (“Ms. Gerardi”), responded with a brief opening statement of her own, in which she succinctly framed her trial strategy. Ms. Gerardi “ask[ed] [the jury] that [it] ... keep the District Attorney to her burden of proof ... and remember that [Ms. Gerardi] [did not] have any burden to prove or disprove anything.” (Id. at 175.) She said that once the jury “listen[ed] to all of the evidence in [the] case, the lack of evidence, the insufficiency of the evidence,” it would be brought “to the only just and honest verdict that there [could] be, and that [would] be a verdict of not guilty.” (Id. )
In support of the People's case, ADA Nagler called four witnesses, including three of the police officers who had arrested Defendant, as well as a ballistics expert. The first prosecution witness to testify was one of these arresting officers, Officer Mario Stewart of the Mount Vernon Police Department (“Officer Stewart”). (Id. at 176.) Officer Stewart recounted that early in the morning on February 15, 2010, he was on patrol in the area of Mount Vernon in which a bar called The Calabash was located, when he heard “loud yelling and screaming” coming from the bar's direction. (Id. at 180, 182.) “[W]hat particularly caught [his] eye ... was a lady in the middle of the roadway frantically waiving her hands ... trying to get [his] attention.” (Id. at 183.) After Officer Stewart activated his emergency lights and pulled up beside her, she pointed to a man in the vicinity wearing a green jacket, and yelled to Officer Stewart that the man “[had] a gun.” (Id. ) At trial, Officer Stewart identified the man in question as Defendant. (Id. ) Officer Stewart recalled that when Defendant heard the woman yell, he looked in the direction of Officer Stewart and the woman and began walking away, with his left hand “waiving [sic] back and forth,” while “his right hand was just straight down at his side.” (Id. at 184–85.) Officer Stewart then yelled to Defendant, “police, stop,” and began following him. (Id. at 186.) Defendant did not stop, even though Officer Stewart asked him to do so several additional times. (Id. ) Once Officer Stewart was approximately two or three feet behind Defendant, Officer Stewart was “able to see that [Defendant] ... had a brown handle of some object ... in his right hand.” (Id. ) When another patrol car “stopped in front of [Officer Stewart] and [Defendant] in the roadway,” Defendant “made an ... abrupt left turn[,] dropping [a] firearm into the snow and then walking towards [Officer Stewart's] direction.” (Id. at 187.)
Two other Mount Vernon Police Department officers exited the vehicle that had just arrived: Officers Murashea Bovell (“Officer Bovell”) and Eric Byrwa (“Officer Byrwa”). (Id. at 188.) Officer Stewart saw Officer Bovell walk “directly to the area where [Officer Stewart saw Defendant] drop the firearm,” at which point Officer Bovell yelled to Officer Stewart, “I got a gun.” (Id. ) Officer Stewart then shouted for Officer Byrwa to “[g]ive [him] a hand” and “started ordering [Defendant] to get on the ground,” but Defendant “refused to do so.” (Id. ) Officer Stewart executed a “leg sweep,” a type of “tripping maneuver,” to “take [Defendant] down to the ground.” (Id. at 188–89.) Defendant “continued to actively resist arrest by tucking his hand underneath his body.” (Id. at 188.) With the assistance of Officer Byrwa and another officer, Officer Stewart was finally “able to get [Defendant] into cuffs.” (Id. ) Officer Stewart described the area in which these events took place as “well-lit,” and noted that there was no one else in the area wearing a green jacket at the time. (Id. at 190–91.) At trial, he identified a firearm that ADA Nagler introduced into evidence as “[t]he gun ... that [Defendant] dropped that was recovered at the scene.” (Id. at 191.) Officer Stewart demonstrated for the jury the manner in which Defendant had carried the gun in his right hand. (Id. at 195–97.) He also identified as accurate depictions of the location where the incident took place a number of photographs that ADA Nagler showed him, and helped ADA Nagler recreate the events as he had described them through the use of a diagram and the positioning of himself and others around the courtroom. (Id. at 197–210.) The photographs were published to the jury, and the jury was also given an opportunity to visually inspect the gun from a distance. (Id. at 212.)
Ms. Gerardi then cross-examined Officer Stewart. Among other responses, she elicited from Officer Stewart that the woman who informed him that Defendant had a gun was “pointing towards [a] crowd,” to an “area” with “more than one person,” (id. at 223); that Officer Stewart “never got [the woman's] name ... [,] address[,] or phone number,” (id. at 224); that there were “other people ... on the street that were near the man with the green jacket when [Officer Stewart] first saw him,” (id. at 227); that Officer Stewart “never actually took [the] green jacket from [Defendant]” or “put [it] into evidence,” (id. ); that Defendant did not run away from Officer Stewart once he heard Officer Stewart ask him to stop, but instead “kept walking straight,” (id. at 228–29); and that Officer Stewart could not make out that Defendant was holding a gun before he dropped it, only that he was carrying an object with a brown handle, (id. at 229–30).
After Officer Stewart stated that there was only one suspect in the case, Ms. Gerardi directed his attention to the police report that he filled out after the incident, which he acknowledged was “accurate” and “true.” (Id. at 231.) Ms. Gerardi gave Officer Stewart time to refresh his recollection, and then asked him how many suspects he wrote down in his report, to which he responded, “It says two, ma'am.” (Id. at 234–35.) In response to questioning, Officer Stewart also stated that, based on his recollection at the time of the incident, Defendant had a “medium to large build.” (Id. at 236–37.) But when Ms. Gerardi asked Officer Stewart what he wrote down in his report about the suspect's build, he responded, “The report said small.” (Id. at 237.) Officer Stewart also said that he “used a computer to complete [his] report,” and that “[m]istakes do happen.” (Id. )
Ms. Gerardi then asked Officer Stewart to characterize the firearm that was entered into evidence. (Id. at 242–43.) Specifically, she asked him whether the firearm was “a pistol,” to which Officer Stewart responded, “Yes, ma'am.” (Id. at 243.) She then asked him whether “it could also be a handgun,” to which he responded, “It is the same thing, ma'am.” (Id. ) When Officer Stewart testified that he signed the evidence property invoice for the gun, that the invoice was accurate, complete, and “[had] everything in [it] that it should,” and that he filled it out in the course of the investigation, Ms. Gerardi asked Officer Stewart whether it was “recorded in there that this is a .22 caliber long rifle,” to which Officer Stewart responded, “Yes, ma'am.” (Id. at 244.) Officer Stewart also confirmed that he signed the superseding felony complaint, which described the weapon that Defendant allegedly possessed as a “Smith & Wesson .22 caliber long rifle.” (Id. at 245.) This line of questioning prompted Officer Stewart to ask the court if he could “explain what the long rifle is,” which request the court granted, over Ms. Gerardi's objection. (Id. at 245–46.) Officer Stewart said that “[t]he reason why the ... firearm is called a long rifle is because it uses a .22 caliber long rifle ammunition,” but that (Id. at 246.)
Ms. Gerardi also...
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