prosecutor's response re: anthony christian

AL:RMT/KMT F.#2011R00313 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

– – – – – – – – – – – – – – – – – –X UNITED STATES OF AMERICA - against - ANTHONY CHRISTIAN, et al. Defendants. – – – – – – – – – – – – – – – – – –X

11 CR 425 (S-6) (ENV)

THE GOVERNMENT’S MEMORANDUM OF LAW IN OPPOSITION TO THE DEFENDANTS’

MOTIONS FOR ACQUITTAL OR A NEW TRIAL

LORETTA E. LYNCH UNITED STATES ATTORNEY Eastern District of New York 271 Cadman Plaza East Brooklyn, New York 11201

Allon Lifshitz Richard M. Tucker Kevin Trowel Assistant U.S. Attorneys (Of Counsel)

Case 1:11-cr-00425-ENV Document 419 Filed 01/12/15 of 71 PageID #: 5478

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .............................................................................................. 1

ARGUMENT ............................................................................................................................ 2

I. THE CHARGED CRIMES AND RACKERTEERING ACTS WERE PROVEN ............ 2

A. General Legal Standard ................................................................................................. 2

B. Application .................................................................................................................... 2

1. Racketeering and Racketeering Conspiracy (Counts One and Two) ...................... 3

a. Legal Standard ................................................................................................... 3

b. Application: Anthony Christian and Harvey Christian ..................................... 5

i. Enterprise Membership ................................................................................ 5

ii. Enterprise Continuity ................................................................................. 12

c. Application: Jason Quinn ................................................................................ 15

i. The Overwhelming Evidence Of Quinn’s Guilt ........................................ 15

Distribution of Narcotics ................................................................................. 15

The “260 Wars” and Possession of Firearms .................................................. 20

ii. Quinn’s Guilt as to Racketeering (Count One) and Racketeering Conspiracy (Count Two)............................................................................ 22

2. Narcotics Conspiracy (Racketeering Act One and Count Three) ......................... 27

3. Murder Conspiracy – The 260 Wars (Racketeering Act Two) ............................. 28

4. The Conspiracy to Murder Corey Brooker (Racketeering Act Three) and the Murder of Jerome Estella in Aid of Racketeering (Racketeering Act Four and Count Four) ........................................................................................................... 28

a. Legal Standard ................................................................................................. 29

b. Application ....................................................................................................... 29

5. The Conspiracy to Murder William Jones (Racketeering Act Five and Count Five) ............................................................................................................ 32


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a. Legal Standard ................................................................................................. 32

b. Application ....................................................................................................... 33

6. Possession of Firearms in Furtherance of Other Crimes (Count Six) ................... 37

II. THE GOVERNMENT DID NOT MAKE ANY IMPROPER ARGUMENTS ............... 37

A. Legal Standard ............................................................................................................. 38

B. Application .................................................................................................................. 39

1. The Government’s Rebuttal Was Proper ............................................................... 39

a. General Legal Standard .................................................................................. 39

b. The Government Properly Characterized Defense Arguments About Cooperating Witnesses .................................................................................... 40

i. Legal Standard ........................................................................................... 40

ii. Application ................................................................................................. 41

c. The Government Properly Rebutted Arguments About Felix Grant ............... 45

d. The Government Did Not Improperly “Vouch” For Its Cooperating Witnesses .......................................................................................................... 47

i. Legal Standard ........................................................................................... 48

ii. Application ................................................................................................. 50

2. Quinn is Not Entitled to a Kastigar Hearing ......................................................... 57

a. Applicable Law ................................................................................................ 57

b. Application ....................................................................................................... 59

3. The Government Properly Introduced Evidence of Quinn’s 1997 Arrest ............. 62

4. The Government Did Not “Distort” Felix Grant’s Testimony .............................. 64

5. The Government’s Argument About the Waiver Provisions of Quinn’s Proffer Agreement Provides No Basis to Vacate the Verdict ............................................ 65

CONCLUSION ....................................................................................................................... 68


PRELIMINARY STATEMENT

The defendants Anthony Christian, Harvey Christian and Jason Quinn were

convicted, following a jury trial, of all counts charged in the Sixth Superseding Indictment.

They have moved for judgments of acquittal as to certain counts and racketeering acts,

arguing that the government failed to prove particular elements of those counts and acts, or,

alternatively, for new trials, arguing that the government made improper arguments at trial.

(See Docket Entry Nos. 401 (“JQ Br.”), 402 (“AC Br.”), 405 (“HC Br.”) and 414 (“JQ Supp.

Br.”).) For the reasons set forth below, the defendants’ motions should be denied in their

entirety.1

1 Because the Court is familiar with the record and evidence in this case, the facts set forth in this memorandum are not meant to be an exhaustive recapitulation of the evidence presented by the government in this lengthy trial. Rather, in this memorandum, the government has endeavored to highlight only the evidence relevant to the defendants’ post-trial motions. Citations to the trial transcript refer to “Tr.”


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ARGUMENT

I. THE CHARGED CRIMES AND RACKERTEERING ACTS WERE PROVEN

A. General Legal Standard

Rule 29(a) provides that “[a]fter the government closes its evidence or after

the close of all the evidence, the court on the defendant’s motion must enter a judgment of

acquittal of any offense for which the evidence is insufficient to sustain a conviction.” A

judgment of acquittal may be granted only if “no rational trier of fact could have found the

defendant guilty beyond a reasonable doubt.” United States v. Cassese, 428 F.3d 92, 98 (2d

Cir. 2005). Put differently, a Rule 29 motion must be denied if, “after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v. Temple, 447

F.3d 130, 136 (2d Cir. 2006).

The Second Circuit has instructed that “[c]ourts must be careful to avoid

usurping the role of the jury when confronted with a motion for acquittal.” United States v.

Jackson, 335 F.3d 170, 180 (2d Cir. 2003). In particular, a court must avoid substituting its

own determination of the weight of the evidence presented and the reasonable inferences that

may be drawn from that evidence. Id. Rather, “it is the task of the jury, not the court, to

choose among competing inferences that can be drawn in favor of the government.” Temple,

447 F.3d at 136-37; see also United States v. Florez, 447 F.3d 145, 154-55 (2d Cir. 2006)

(same).

B. Application

The defendants have challenged the sufficiency of the evidence introduced to

prove certain counts and racketeering acts. However, the record demonstrates that those


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counts and racketeering acts were supported by sufficient evidence, and there is no basis for

acquittals as to any of them.

1. Racketeering and Racketeering Conspiracy (Counts One and Two)

Anthony Christian argues that the government “fail[ed] to establish the

continued existence and operation of the [charged racketeerinfg] enterprise.” (AC Br. at 4.)

More specifically, he argues that (1) “[w]ith the exception of the defendants Anthony and

Harvey Christian, no other person was involved or associated with the enterprise for longer

than 2 years,” and (2) “no proof was offered of the existence of the enterprise between 2000-

2001 and 2010.” (Id. at 2.) Jason Quinn argues that there was insufficient evidence to

support his conviction for racketeering and racketeering conspiracy, and also moves for

judgments of acquittal pursuant to Rule 29. (JQ Br. at 3). Harvey Christian joins in these

motions. (HC Br. at 1.) These motions are based on false factual and legal premises, and

should be rejected.

a. Legal Standard

A charge of racketeering requires, inter alia, proof of participation in the

affairs of an enterprise, 18 U.S.C. § 1962(c), and a charge of racketeering conspiracy

requires, inter alia, proof of an agreement to participate in the affairs of an enterprise, 18

U.S.C. § 1962(d). The racketeering statute defines an enterprise as “any individual,

partnership, corporation, association, or other legal entity, and any union or group of

individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). The

Supreme Court has explained that proving an enterprise does not require proof of any

particular formal organization:


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[A]n association-in-fact enterprise is simply a continuing unit that functions with a common purpose. Such a group need not have a hierarchical structure or a “chain of command”; decisions may be made on an ad hoc basis and by any number of methods—by majority vote, consensus, a show of strength, etc. Members of the group need not have fixed roles; different members may perform different roles at different times. The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies. While the group must function as a continuing unit and remain in existence long enough to pursue a course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence. Nor is the statute limited to groups whose crimes are sophisticated, diverse, complex, or unique; for example, a group that does nothing but engage in extortion through old-fashioned, unsophisticated, and brutal means may fall squarely within the statute’s reach.

Boyle v. United States, 556 U.S. 938, 948 (2009).

Significantly, the Second Circuit, district courts in the Circuit and other courts

have repeatedly held that “[a]n ‘individuals associated in fact’ enterprise, 18 U.S.C.

§ 1961(4), may continue to exist even though it undergoes changes in membership.” United

States v. Eppolito, 543 F.3d 25, 49 (2d Cir. 2008); see also United States v. Payne, 591 F.3d

46, 60 (2d Cir. 2010); United States v. Smith, 413 F.3d 1253, 1267 (10th Cir. 2005) (“This

element may be established even if some individuals left [the charged enterprise] and were

replaced by new members at a later date.”); United States v. Coonan, 938 F.2d 1553, 1560-

61 (2d Cir. 1991) (enterprise element satisfied because “the evidence clearly established that,

regardless of internal disputes and membership changes, the [enterprise’s] power structure

endured and its members functioned as a unit up until the time that [one of its leader’s]

cooperation with the government was revealed”); United States v. Riccobene, 709 F.2d 214,

223 (3d Cir. 1983) (“This [continuity requirement] does not mean that individuals cannot


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leave the group or that new members cannot join at a later time.”); Jones v. United States, 12

CV 601 (EBB), 2014 WL 6871198, at *5 (D. Conn. Dec. 5, 2014) (“Moreover, even if, as

Jones alleges, there was no evidence showing that Powell and Harris had any involvement in

the criminal activities of the enterprise from 1990 to 1994, the law is clear that the

government does not need to prove an enterprise was comprised of a fixed membership

throughout its existence.”); United States v. Mayes, 11 CR 385 (ARR), 2014 WL 3530862,

at *2 (E.D.N.Y. July 10, 2014) (“[A]n enterprise can function as a ‘continuing unit’ even if

the membership changes during the period charged.”).

In addition, and consistent with the Supreme Court’s decision in Boyle, the

Second Circuit has held explicitly held that “[a] period of quiescence in an enterprise’s

course of conduct does not exempt the enterprise from RICO” prosecution. United States v.

Burden, 600 F.3d 204, 216 (2d Cir. 2010); see also Boyle, 556 U.S. at 948 (“[N]othing in

RICO exempts an enterprise whose associates engage in spurts of activity punctuated by

periods of quiescence.”).

b. Application: Anthony Christian and Harvey Christian

Anthony Christian’s argument about the enterprise’s membership and

continuity both fail.

i. Enterprise Membership

The argument about membership fails because the government offered

extensive proof that the enterprise was “a continuing unit that functioned with a common

purpose.” Boyle, 556 U.S. at 948. In particular, every cooperating witness who testified

explained that, during the period of his involvement in or awareness of the enterprise,

Anthony Christian and Harvey Christian were its leaders, its purpose was to sell drugs in the


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Park Hill neighborhood of Staten Island, and its methods included engaging in violence to

maintain and obtain control of drug turf:

• James Bestman testified that in 1991, he sold drugs at 160 Park Hill with Anthony Christian, Harvey Christian and their brother James Christian, all of whom also sold drugs at 55 Bowen. (Tr. at 104-05, 108, 113-14.) Bestman met Quinn in the early 1990s and would see him around 55 Bowen with Anthony Christian and Harvey Christian. (Id. at 99-100.) Bestman pooled his money with the Christian brothers to buy drugs together from supplier Leon Lewis. (Id. at 106.) Significantly, Bestman testified that even back in 1991 Harvey Christian was a “natural leader” who would “recruit people to work for us,” i.e., to sell crack for the enterprise. (Id. at 112-13.) Bestman identified a man known as “Bigga,” whose true name he believed to be “Sheron Crabs,” as someone who sold crack with the Christian brothers from the early 1990s onward, including at 225 Park Hill and 240 Park Hill. (Id. at 101-03.) The enterprise members worked together at 160 Park Hill, a “freelance” building, where Bestman would generally use his speed to reach customers before rival drug dealers, while, at the same time, Anthony Christian and Harvey Christian physically blocked the rival dealers. (Id. at 114-15.) In 1992 or 1993, after Brian Humphreys and another drug dealer forced the enterprise out of 160 Park Hill, Bestman and the Christian brothers moved their operation to 225 Park Hill and 240 Park Hill. (Id. at 122-27.) The enterprise quickly came to “control” 240 Park Hill, meaning that the only people who could sell crack there were enterprise workers. (Id. at 127-28.) This arrangement lasted for five or six months, beginning at the end of 1993, and involved the members buying drugs and guns together. (Id. at 128-32.) The arrangement at 240 Park Hill ended in 1994, after Bestman shot and killed Erron Lewis, also known as “2 Cent,” while protecting the enterprise’s turf from Lewis’s friend “Echoes,” who had sold fake drugs at 240 Park Hill. (Id. at 134-40.) Bestman was in jail for that crime from 1994 to 1997 before being acquitted at trial. (Id. at 139-40.) He recalled that before he went to jail, the enterprise was involved in an ongoing dispute with a rival drug trafficking organization based in 260 Park Hill – one building over from 240 Park Hill – which was run by leaders Keith Darling, also known as “LK,” and Marcus Peake, also known as “Herb.” (Id. at 140-41.) After 1997, Bestman did not live in Staten Island because he feared retribution from Erron Lewis’s brothers, but he visited from time to time, saw the Christian brothers at 55 Bowen, knew that they had joined the Bloods gang by 1997, and believed they left it in approximately 2000. (Id. at 141-43.)

• Brian Humphreys, also known as “Trev,” testified that he met Anthony Christian, Harvey Christian and James Christian – whom he knew as “AK” – in 1992. (Tr. at 402-03.) In 1992 and 1993, he saw them selling crack at 55 Bowen, 225 Park Hill and 240 Park Hill, and he understood that they


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controlled 55 Bowen and 225 Park Hill. (Id. at 404-05.) Humphreys worked as an enforcer for “LK” and “Herb,” as well as their partner Michael Prince, also known as “Black,” but stopped working for that crew in 1992 in order to remain neutral in their dispute with the Christian brothers. (Id. at 415.) Humphreys subsequently sold drugs outside New York and spent time in jail, but returned to Park Hill in or around 1998. (Id. at 418-20.) At that time, Humphreys’ brother Paul Ford, also known as “Uncles,” explained that the Christian brothers were in control of the drug trade and that Ford had become their drug supplier because Leon Lewis was incarcerated, and Humphreys observed that the Christian brothers were the bosses of the Bloods gang in the area. (Id. at 420-22.) After another arrest, Humphreys returned to Park Hill in 1999 and began working for the Christian brothers as an enforcer. (Id. at 422-25.) They controlled drug sales at 55 Bowen, 225 Park Hill and nearby Targee Street. (Id. at 425-27.) Humphreys committed a series of robberies and extortions for the Christian brothers in 1999, often with other enterprise members, generally aimed at eliminating rival drug dealers who infringed on the enterprise’s turf. (Id. at 427-32.) As discussed in greater detail below, in 1999, Humphreys, at the direction of Anthony Christian and Ford, agreed to murder a rival drug dealer known as “Shank Bank.” (Id. at 437-40.) In the course of attempting to carry out that murder, Humphreys – with Anthony Christian’s approval, and using a gun provided to him by Anthony Christian – shot and killed an associate of “Shank Bank” known as “Boo Boo,” and was then arrested on the fifth floor of 55 Bowen, immediately outside the Christian brothers’ apartment, where he had gone to report the murder – and to return the murder weapon – to Anthony Christian. (Id. at 442-60.)

• Paul Ford, also known as “Uncles,” testified that he met Anthony Christian, Harvey Christian, James Christian and Jason Quinn in 1987 or 1988, when he (Ford) sold crack at 55 Bowen. (Tr. at 823-24.) In the late 1980s and early 1990s, Ford observed the Christian brothers and “Bigga” selling crack at 55 Bowen. (Id. at 825.) By 1991, the Christian brothers were being supplied with crack by Leon Lewis. (Id. at 830-31.) In 1993, Ford observed Anthony Christian and Harvey Christian selling crack at 55 Bowen, where they had several workers working for them. (Id. at 835.) He also saw Bestman selling crack with them at 55 Bowen, 185 Park Hill, 225 Park Hill and 240 Park Hill, and he saw Rob Fields, whom he knew as “Rob” or “Boy Boy,” and Vernon Fields, whom he knew as “Vern,” spend time with the Christian brothers at 55 Bowen. (Id. at 835-36, 854-55.) In 1994 and 1995, the Christian brothers’ enterprise – which included Jason Quinn, another dealer known as “Waco,” and others whom Ford did not know by name – was involved in an ongoing dispute with the rival group operated by Darling, Peake and Prince. (Id. at 837-40.) During the dispute, Ford once observed Anthony Christian and Harvey Christian running from 260 Park Hill toward 55 Bowen, while Harvey Christian held an AK-47 and shots were fired from 260 Park Hill. (Id. at 841.) Anthony Christian and Harvey Christian later told Ford that they had been


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fired on from the roof of 260 Park Hill and that they had returned fire. (Id. at 844.) In 1995, Ford proposed to Anthony Christian, Harvey Christian, “Waco” and another dealer known as “AO” that Ford supply them with crack to sell at various buildings they controlled, and to split the resulting profits. (Id. at 846-47.) The group agreed, and the plan was put into action, with Anthony Christian and Harvey Christian selling their share of the crack at 55 Bowen. (Id. at 848.) This arrangement lasted approximately six months. (Id. at 849-50.) By 1998 and 1999, the Christian brothers had become more powerful in Park Hill because they had joined the Bloods and were high-ranking in that organization, and because their supplier, Leon Lewis, was no longer in Park Hill. (Id. at 853, 855.) Ford recalled that his half-brother, Brian Humphreys, began working for the Christian brothers in or around 2000. (Id. at 852-53.) In or around 1999, Anthony Christian proposed murdering “Shank Bank,” who had robbed another drug dealer, and Ford, in the presence of Humphreys, gave his approval. (Id. at 855-57.) After “Boo Boo” was murdered, Anthony Christian told Ford that Humphreys had committed the murder. (Id. at 858-59.) In 2010 and 2011, Ford supplied crack to Anthony Christian and Harvey Christian, who bought the crack together with Quinn, “Boy Boy” and “Vern,” and who at that time employed Jamie Booker, also known as “Momo,” Rob Jones, known to Ford as “Rob,” and a driver known as “Dia.” (Id. 867-75.) In early 2011, Anthony Christian and Harvey Christian told Ford they were having a problem with “Buddha” at 55 Bowen. (Id. at 861-64.) Ford later observed Anthony Britt, whom he knew as “N-O,” shooting at “Buddha” from the front 55 Bowen toward the back of 225 Park Hill, an incident discussed in greater detail below. (Id. at 864-65.)

• Lamar Goodwine, also known as “Stopper” and “Pop,” testified that he had sold drugs in Park Hill and elsewhere. (Tr. at 1062.) He began selling for Keith Darling, who was his cousin, and Marcus Peake in 1991 or 1992. (Id. at 1063-65.) Goodwine then sold drugs outside of New York, but began spending a lot of time in Staten Island on August 3, 1994, and on that day he observed a dispute between Darling and Leon Lewis outside 260 Park Hill, based on one of Darling’s workers having robbed one of Lewis’s workers, and realized there was about to be a “war.” (Id. at 1070-73, 1105-06.) Goodwine knew Lewis to be associated with the Christian brothers, and knew that Darling controlled 260 Park Hill. (Id. at 1104, 1107-09.) At that time, Michael Prince controlled 280, Lewis controlled 180 Park Hill and the Christian brothers controlled 55 Bowen. (Id. at 1110-12.) In the fall of 1994, the Christian brothers worked with Rob Fields, Vern Fields, James Christian and Jason Quinn, and were attempting to sell at 225 Park Hill. (Id. at 1114-15.) Goodwine witnessed a confrontation that Darling had with Anthony Christian and Harvey Christian shortly after one of Darling’s workers – Keith Jackson, also known as “Meat” – had been shot. (Id. at 1115-17.) Subsequently, Harvey Christian shot at Darling and Goodwine as they drove past 55 Bowen, they retaliated by “shooting up in front of 55,” and these two


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rival crews engaged in “a full-blown war.” (Id. at 1118-19.) Goodwine recalled that the war lasted two or three months, and there were several shooting in some weeks. (Id. at 1119-20.) The incidents were many and violent. In one, Harvey Christian, who was with Anthony Christian and another brother named Archie, shot at Goodwine near 225 Park Hill, and Goodwine got in a car and shot back; the next day, Harvey Christian, carrying a gun, attempted to open the door of a cab Goodwine had entered. (Id. at 1121-23.) In another, the Christian brothers enterprise – including Anthony Christian, Harvey Christian, Quinn, another brother known as “Fred” or “Flip” and another individual – stood on the roof of 225 Park Hill and exchanged gunfire with Darling and others, who stood on the roof of 260 Park Hill. (Id. at 1123-24.) In yet another incident, members of the charged enterprise shot at the front of 260 Park Hill. (Id. at 1124.) After Goodwine assaulted Archie, the enterprise retaliated, with Harvey, Nitty and an enterprise member named Billy “tr[ying] to shoot up 260 again.” (Id. at 1124-26.) On one occasion, Anthony Christian, who was with Fred, shot at Goodwine, who was in 260 Park Hill with others. (Id. at 1126-27.) Goodwine also observed enterprise members shooting from cabs and test-firing guns on the roof of 55 Bowen. (Id. at 1127-29.) In all, Goodwine recalled being shot at on at least ten occasions during the war – including “numerous” times by Anthony Christian and Harvey Christian, and one or two times by Quinn – and shooting back about the same number of times. (Id. at 1129-30.) Darling and Peake still controlled 260 Park Hill at the end of the war, but by 1998, when Goodwine completed a term of incarceration, the Christian brothers controlled 260 Park Hill and were also still selling drugs at 55 Bowen, and their enterprise appeared to be engaged in a “lucrative” drug trade at those locations. (Id. at 1133-34.) In 2007, after Goodwine completed another term of incarceration, the Christian brothers were still selling at 55 Bowen, and they had workers, including one Goodwine knew as “Rob.” (Id. at 1136-37.) In 2010, after Goodwine completed yet another term of incarceration, he observed that the Christian brothers were still selling crack at 55 Bowen, along with “Rob,” Quinn, Booker, and a man known to Goodwine as “Africa.” (Id. at 1140-41.) On one occasion, Goodwine observed “Buddha,” with whom Goodwine had engaged in separate disputes, firing a gun toward 55 Bowen and 225 Park Hill. (Id. at 1142-44.)

• William Cothren, also known as “Elmo” and “Specialist,” testified that he lived in Park Hill early in his life and then again in 2011. (Tr. at 1332-33.) He met Anthony Christian and Harvey Christian that year, though he had been aware of them earlier through his cousin, a member of the Bloods who died in 1997. (Id. at 1336-38.) Soon after meeting the Christian brothers, Cothren began selling crack for Harvey Christian in 55 Bowen. (Id. at 1342-43.) Nobody could sell drugs there without permission from the Christian brothers. (Id. at 1361.) He identified “Rob” as another worker for Harvey Christian. (Id. at 1345-48.) When Cothren worked for Harvey Christian, he lived in the


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Christian brothers’ apartment in 55 Bowen, along with “Rob” and “Momo.” (Id. at 1350-52.) “Momo” also assisted in Harvey Christian’s drug dealing. (Id. at 1355.) Rob Fields, also known as “Boy Boy,” also sold crack at 55 Bowen at this time. (Id. at 1356.) In addition to dealing crack with Harvey Christian, Cothren “broke up and bagged up” marijuana with Anthony Christian and “Momo.” (Id. at 1359.) Cothren observed that Harvey Christian had a driver. (Id. at 1361-62.) When “Rob” stopped coming to 55 Bowen, Harvey Christian became upset and instructed Cothren to find him. (Id. at 1363-64.) Subsequently, Cothren moved out of the Christian brothers’ apartment, but continued to hold crack for Harvey Christian and marijuana for Anthony Cristian. (Id. at 1367-71.) He also held a gun for Harvey Christian and Antony Christian, which was delivered to Cothren by “Momo,” and which both Anthony Christian and Harvey Christian later directed him to deliver. (Id. at 1371-74.)

• Amos Boone, also known as “Peanut,” testified that he began selling crack on Staten Island in 1986 or 1987, and was a member of the Bloods from 1993 to 2012. (Tr. at 1442-43.) He met Anthony Christian in jail in 1997 or 1998 and met Harvey Christian later, in or around 2000. (Id. at 1444-45.) He was introduced to Anthony Christian by a fellow Bloods member, and knew Anthony Christian to be a member of that gang. (Id. at 1445-46.) When he met Anthony Christian, Anthony Christian said he sold drugs at 55 Bowen, was in a dispute with Darling over the control of buildings in Park Hill, and had been involved in a shootout at 260 Park Hill. (Id. at 1448-49.) Boone first spoke to Harvey Christian by phone in 2000, while Boone was still incarcerated. They spoke over the phone as a result of Boone’s brother – also a Bloods member – having met the Christian brothers; Boone and Harvey Christian planned to meet at 55 Bowen when Boone was released. (Id. at 1450-51, 1454-56.) When Boone was released later in 2000, he found that “everybody in every neighborhood [in Staten Island] was Blood.” (Id. at 1457.) After Boone had difficulty selling drugs in another neighborhood, he drove to Park Hill and got Harvey Christian’s phone number from a crack user who Goodwine knew, and Boone and Harvey Christian met at 55 Bowen. (Id. at 1459-66.) Harvey Christian told Boone that Darling had been arrested federally, and as a result, Park Hill was “wide open.” (Id. at 1467-68.) Boone observed that the Christian brothers’ drug business was successful, and Harvey Christian told him he had been involved in a gun battle at 260 Park Hill and had issues with “Shank Bank.” (Id. at 1468-70.) Subsequently, around 2001, Boone saw Anthony Christian selling crack on Targee Street. (Id. at 1472-75.) In the fall of 2009, Boone saw Harvey Christian, “N-O” and “Boy Boy” in front of 55 Bowen. (Id. at 1500-01.) He then heard “N-O,” who was across the street by 225 Park Hill, ask, “Where’s that at?”, to which Harvey Christian responded, “It’s right on the tire.” (Id. at 1501-02.) “N-O” then retrieved a handgun from the front tire of a car and Harvey Christian “told him to let that


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thing off”; Boone drove away and did not see what happened next. (Id. at 1502-03.)

• Anthony Britt, also known as “N-O,” testified that he sold crack beginning at age seventeen in Staten Island and elsewhere. (Tr. at 1633-34.) He joined the Bloods in February 1996, when he was incarcerated in Rikers Island. (Id. at 1634, 1643.) Significantly, after he was released in 2003, he saw Anthony Christian and Harvey Christian selling drugs at 55 Bowen, which Britt visited because his father worked there as a security guard. (Id. at 1652-54.) In the middle of 2009, Britt brought Anthony Christian, Harvey Christian and another man into the Valentine set of the Bloods; he knew that the Christian brothers had previously been members of another Bloods set, which Harvey Christian said they left because of other members’ perceived cooperation with law enforcement. (Id. at 1647-50, 1657-59.) Harvey Christian had asked Britt to bring him into the Valentine set, and Harvey Christian subsequently brought another man into it. (Id. at 1650-51.) After the Christian brothers were inducted into the set, they joined Britt in “blooding out” another member, which involved “break[ing] his blood,” and, during that incident, Harvey Christian and Britt both cut someone in the face with a razor blade. (Id. at 1660-62.) Britt explained that by joining the Bloods, Harvey Christian gained access to lower prices from drug suppliers. (Id. at 1664-65.) Britt saw the Christian brothers selling drugs at 55 Bowen in or around 2009 and 2010, including with their workers “Rob” and “Momo,” and although Britt was a high-ranking Blood, he had no control over the Christian brothers’ drug business. (Id. at 1665-66, 1675-76.) Indeed, Harvey Christian refused to even allow Britt to sell drugs at 55 Bowen. (Id. at 1676-77.) In the summer of 2010, Britt had a dispute with an individual known as “Buddha” and, as described in greater detail below, the dispute evolved into an enterprise dispute. (Id. at 1677-89, 1701.) In late 2010 and into 2011, Britt observed that the enterprise’s crack and marijuana business at 55 Bowen was thriving, and it included “Rob,” “Momo” and “Boy Boy.” (Id. at 1689-91.) On one occasion, Britt encountered enterprise worker “Rob,” who spoke disparagingly of Harvey Christian, and Britt – at Harvey Christian’s direction – delivered “Rob” to Harvey Christian. (Id. at 1691-94.)

• Felix Grant, also known as “Pookie,” testified that he sold crack to Harvey Christian, and crack and powder cocaine to Quinn. (Tr. at 2025-26.) He met Harvey Christian through Robert Fields, also known as “Boy Boy,” in 2011. (Id. at 2040-41.) Fields introduced Harvey Christian as his “brother,” which Grant understood to be a figure of speech indicating they were close. (Id. at 2041-42.) On that first occasion, Harvey Christian and Fields bought crack from Grant, and Grant subsequently sold crack to Harvey Christian about ten to fifteen times. (Id. at 2043.) During this period, Harvey Christian called Grant directly, approximately once per week, to arrange these transactions. (Id. at 2043.) Sometimes, enterprise workers “Rob” and “Momo” picked up


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the drugs. (Id. at 2044-45.) Harvey Christian introduced Grant to Quinn, saying he needed drugs for his “man,” i.e., Quinn. (Id. at 2046-47.) Quinn would then contact Grant directly to purchase drugs from him, which happened about once a week for three or four months. (Id. at 2047-48.)

This evidence goes far beyond the basic requirements of Boyle, and – though

not required by Boyle – proved that the charged enterprise had a rather formal structure with

defined roles for particular members, such as the enforcer Humphreys, the workers Jones and

Booker, and the suppliers Ford and Grant. Most importantly, this testimony established that

the enterprise was always controlled by Anthony Christian and Harvey Christian, that it

always existed to sell drugs in Park Hill, and that its methods always included using violence

to obtain and maintain drug turf. Therefore, the enterprise was proven by sufficient

evidence, and Anthony Christian’s argument about the enterprise’s changing membership

should be rejected.

ii. Enterprise Continuity

Anthony Christian’s argument about the purported quiescence of the enterprise

between 2000 and 2010 also fails. As an initial matter – and significantly – the cooperator

testimony in fact refers to enterprise activity during the period between 2000 and 2010. In

particular, in 2003, Britt saw Anthony Christian and Harvey Christian selling drugs at 55

Bowen. (Tr. at 1652-54.) In 2007, Goodwine saw the Christian brothers still selling at 55

Bowen with workers, including the one Goodwine knew as “Rob.” (Id. at 1136-37.) In the

middle of 2009, Britt brought Anthony Christian, Harvey Christian and another man into the

Valentine set of the Bloods, which allowed Harvey Christian to gained access to lower prices

from drug suppliers. (Id. at 1647-50, 1657-59, 1664-65.) Furthermore, as essentially

conceded by Anthony Christian, the record was not limited to testimony by cooperators who


13

personally dealt with the defendants, but also included testimony by eyewitnesses and law

enforcement officers about incidents that prove the existence of the enterprise throughout the

2000s:

• Awie Kollie testified that in July 2004, he attempted to buy a bag of marijuana from Anthony Christian in 55 Bowen. (Tr. at 1276-77.) Anthony Christian provided the drugs, and Kollie said he would pay him later. (Id. at 1278.) Anthony Christian “collared” Kollie, and Kollie began to choke Anthony Christian. (Id. at 1278.) Someone screamed to get Harvey Christian and James Christian, and soon thereafter Kollie was on the ground, being assaulted by the three Christian brothers, and he got stabbed in the back of his neck, resulting in 50-60 stitches. (Id. at 1279.) This incident demonstrates that in 2004, the enterprise continued to sell drugs in 55 Bowen, that it still included Anthony Christian, Harvey Christian and James Christian, and that enterprise members were will to commit acts of violence to resolve disputes and protect their drug business.

• New York City Police Department (“NYPD”) Sergeant Thomas Spitzfaden testified that on January 18, 2005, he and a partner entered 55 Bowen to search for criminal activity. (Tr. at 1949.) Prior to that date, he had seen Anthony Christian, Harvey Christian and James Christian in front of, inside, and around the corner from 55 Bowen, and, in general, the three Christian brothers had taunted the police and asked, “What are you doing here in our building?” (Id. at 1952.) On January 18, 2005, Sgt. Spitzfaden and his partner saw three young men loitering in the lobby of 55 Bowen, placed two of them in handcuffs, and were about to cuff the third when Anthony Christian and Harvey Christian appeared in the lobby and a security guard walked out of it. (Id. at 1953.) Harvey Christian told the officers, “You’re not arresting them,” and instructed the uncuffed man to run, which he did. (Id. at 1953-54.) Sgt. Spitzfaden wanted to give chase, but Harvey Christian physically blocked him, and Anthony Christian grabbed him. (Id. at 1954.) As the officers left with the two men they had cuffed, the Christian brothers taunted them, saying, “Bring your boys back, come back. You think you can get us, come back. We’re going to get you. Get out of our building. (Id.) By the time the officers placed the two trespassers in a police cars, a crowd of fifteen to twenty people had gathered and joined in the taunts. (Id.) That evening, Sgt. Spitzfaden returned with another officer and a supervisor in order to arrest Harvey and Anthony Christian for obstruction of government administration. (Id. at 1955.) They found Harvey Christian and tried to arrest him, but he physically resisted and screamed, as if to get people out of their apartments. (Id. at 1956.) Sgt. Spitzfaden pepper-sprayed Harvey Christian, which appeared to have little effect, and Harvey Christian ran down a staircase. (Id.) The officer gave chase, and Harvey Christian reached back, grabbed the


14

supervisor, pulled him down the stairs and slammed him into a wall, requiring hospitalization. (Id. at 1956-57, 1959.) The officer attended to the supervisor, so Harvey Christian was able to get away again. (Id. at 1957-59.) This incident proves that in 2005 – in the middle of the purported period of quiescence – the Christian brothers still controlled 55 Bowen and believed they were so powerful that not even the New York City Police Department could enforce the law in the building’s lobby.

• NYPD Detective Anthony Bellantone testified that on March 20, 2009, he went to 55 Bowen in response to a call stating that guns were in the hallway ceiling hatch. (Tr. at 1309-10.) Det. Bellantone and his partner recovered a 9 millimeter firearm and a .45 caliber firearm, as well as drugs, from that location. (Id. at 1310-11.) This testimony proves that in early 2009, the enterprise continued to operate, continued to use 55 Bowen as its stronghold, and contained to sell drugs and to possess weapons in furtherance of its drug business.

As noted above, the Supreme Court and Second Circuit have explicitly held

that occasional periods of quiescence do not allow defendants who are otherwise guilty of

racketeering offenses to obtain acquittals. Boyle, 556 U.S. at 948; Burden, 600 F.3d at 216.

In addition, as just demonstrated – and perhaps more importantly – the record contains ample

evidence of continued operation between 2000 and 2010, and absolutely no evidence of any

period of quiescence at all. The law does not require the government to prove the daily

activities of an enterprise in order to prove a twenty-year racketeering count, and if it did

then few, if any, such prosecutions would succeed. In this case, the evidence indicates that

the enterprise operated in 2003, 2004, 2005, 2007 and 2009. Taken in the context of all of

the cooperating witness testimony about the enterprise – about the Christian brothers’

leadership of it, the extensive drug sales, the total control of 55 Bowen, the frequent use of

firearms – it is difficult to imagine a reasonable juror concluding that any of the specific

incidents proven at trial were unconnected to the enterprise, let alone that they all were.

Reasonable juror were certainly entitled to conclude based on this evidence that the


15

enterprise operated continuously from 1991 to 2011, as alleged, including between 2000 and

2010, without any legally relevant periods of quiescence.

For all of these reasons, the government respectfully submits that the evidence

of racketeering and racketeering conspiracy was sufficient to support the verdicts.

c. Application: Jason Quinn

i. The Overwhelming Evidence Of Quinn’s Guilt

At trial, the government presented overwhelming evidence establishing

Quinn’s participation in the charged racketeering enterprise, his membership in the charged

narcotics distribution conspiracies, his possession of narcotics with the intent to distribute,

and the use of firearms, including machineguns, in furtherance of these crimes. This

evidence, summarized and highlighted in part below, included testimony from numerous

cooperating witnesses, recorded calls from judicially authorized wiretaps, text messages

forensically captured from a coconspirator’s cellular phone, and seized crack cocaine,

firearms and ammunition.

Distribution of Narcotics

As the government proved at trial and argued in its summations, Quinn was an

active member of the charged racketeering enterprise and narcotics conspiracies. In

furtherance of those activities, Quinn shared drug suppliers with Anthony Christian and

Harvey Christian, discussed strategies for drug pricing and packaging, discussed problems

with certain drug suppliers, and discussed methods for avoiding detection by law

enforcement officials. Cooperating witness Paul Ford testified that he first recalled seeing

Jason Quinn around 55 Bowen with Anthony Christian and Harvey Christian in the early

1990s as the Christian brothers were beginning to develop a reputation as the leading drug


16

dealers in Park Hill. (Tr. at 824, 830, 997-99 (“Jason Quinn was always in the building at 55

[Bowen] hanging out with the Christian brothers.”).) Ford further testified that in 2010 and

2011, Anthony and Harvey Christian, Robert Fields, also known as “Boy Boy,” and Quinn

would “pool their monies together, and they would let me know exactly what amounts they

want, what amounts Boy Boy and his brother wanted, and what amounts Jason Quinn

wanted.” (Id. at 868.)

Cooperating witness Felix Grant likewise testified that he sold crack cocaine

and powder cocaine to Jason Quinn. (Tr. at 2048-49.) Grant explained that he first came to

sell narcotics to Quinn only after Harvey Christian introduced Quinn to Grant. Grant

testified:

Q: How did you come to meet Jason Quinn? A: I met him through Harvey. Q: Please tell us what happened. A: Harvey called me up one day and says he needs drugs and he says it’s for somebody, for his man or something. Q: He said it was for his man? A: Yeah, I believe so. Q: What happened next? A: I end up bringing the drugs. I dealt with Harvey on the first time, I believe, and I guess they exchanged drugs. Harvey gave him my number. He calls me up one day after that and he’s like, this is Harvey’s man, and I started dealing with him from then.


17

(Id. at 2046-47.) Grant further testified that he agreed to sell narcotics to Quinn “[b]ecause

he [Quinn] was dealing with Harvey,” and that Grant subsequently sold crack and powder

cocaine to Quinn at least once per week for three-to-four months. (Id. at 2048.)

In addition to this testimony from cooperating witnesses, the government

introduced recorded telephone calls between Quinn and Harvey Christian, and between

Quinn and Grant, in which they discussed the distribution of narcotics. For example, during

two lengthy intercepted calls on April 4, 2011, Quinn and Harvey Christian discussed in

detail the merits of packaging large, or “chunky 50s”, referring to $50 baggies of crack

cocaine. In these calls, it was apparent that Quinn had possessed distribution quantities of

crack cocaine on or about that same date. For example, during one of those calls, the

following exchange took place:

QUINN: So I’m like I’ll make you all wanna get the 50. That back and forth shit is what brings niggas more exposure to go to jail. So if they use – I’m just saying, if you got them used to big – it’ll be – maybe not if you just show them – put it with the big – split the chunky 50s. But the motherfuckers is used to coming for dubs, they might not really be going for that shit. See, my shit was – my dubs – I came – I started in the dubs with small already. So it ain’t really changed that much, they just a little bit bigger than before, but the 50s is mad chunky. The 50s is like three – almost three – almost more than three 20s now, about three 20s. It’s like the same thing they was gonna get it I was giving a little play. But it’s a gimmick so this shit go. But if your shit is already mad big – HARVEY CHRISTIAN: Oh. QUINN: – but you could do it. I mean, the shit went before when he made a note off a 10, even though you got complaints. I think the complaints is from when he was selling 50s. Them 50s was looking fucked up. A 20’s a 20, yeah, but the bag is mad big and it’s mad space. Them shits is how your 20s was looking before. You can’t – that’s what I’m saying. You can’t sell a nigga something for 50 that you was giving them for 20.


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HARVEY CHRISTIAN: Yeah. QUINN: That’s how that shit was looking. HARVEY CHRISTIAN: I wanna sell the shit I got now.

(GX 800(a)-4.)

During a call on April 16, 2011, Quinn complained to Harvey Christian about

the low quality of a quantity of narcotics that Quinn had recently obtained from Grant:

HARVEY CHRISTIAN: Hello? QUINN: Yo, what up? HARVEY CHRISTIAN: What’s going on? QUINN: Yo, yo yo your man gonna make me hurt him, dawg. HARVEY CHRISTIAN: Who? QUINN: Yeah, it’s the dude we was talking about. I don’t wanna say his name right now, but the dude, the dude you was talking about going to get, yo, son, yesterday I was gonna tell you to, like, not, chill, don’t get the nigga, ’cause, you know, we need him. Dawg, I had, I got some yesterday. Got mad complaints, right? HARVEY CHRISTIAN: Yeah. QUINN: So he bought, he – I’m like, yo, homie [U/I], you got to swap this shit. He’s like, no doubt, I know I got you. He swaps it today, right? HARVEY CHRISTIAN: Yeah. QUINN: The shit is soda’ed up, so I’m like I’m looking -- I ain’t really look too close to it. Boom boom, I could barely cut it. So I go hit my bottom bitch, you know what I’m saying, that keeps it 100. Then I hit another bitch. The bitch I hit, she calls me back popping shit, yo, how the fuck you did this to me? I’m like, yo, hold the fuck up, man.


19

HARVEY CHRISTIAN: So [U/I]? QUINN: Yo, he ain’t picking up. He’s gonna have my cake tomorrow, son. HARVEY CHRISTIAN: Oh, yo, yo, yo. I owe him some bread. So I’m gonna call [U/I]. I’m taking that stuff he gave me back. QUINN: Yo, yo, look, it’s like this, you don’t have my cake. He ain’t picking up his phone right now. He’s gonna have my cake tomorrow, man.

(GX 800(a)-16.)

The government also introduced recorded calls between Quinn and Grant

wherein they discussed narcotics transactions. During a call on May 11, 2011, Quinn agreed

to purchases quantities of powder and crack cocaine from Grant. (GX 801(a)-1.) Later, on

May 31, 2011, Quinn and Grant spoke and Grant advised that he was awaiting a delivery of

narcotics. In response, Quinn told Grant that he needed “some soft, too,” referring to powder

cocaine, and promised to call Grant back. (GX 801(a)(2).) Later that day, Grant was

arrested. Four days after that, Quinn and Harvey Christian discussed Grant’s (also known as

“Pook”) arrest and Quinn asked Harvey Christian to supply him with seven grams of crack:

HARVEY CHRISTIAN: Yo. QUINN: Yo. Yeah, you got your work? HARVEY CHRISTIAN: Yeah. QUINN: Yo, let me, let me hold seven, man. HARVEY CHRISTIAN: I don’t got none right now, man. QUINN: Nobody do? HARVEY CHRISTIAN: Nah.

QUINN: I don’t know what the fuck I’m gonna do.


20

HARVEY CHRISTIAN: I don’t know how Pook got jammed up like that, man. QUINN: It’s fucking crazy and lazy. Yeah, being lazy. HARVEY CHRISTIAN: Silly ass nigga. QUINN: And real lazy.

(GX 800(a)-50.)

When Quinn was arrested on June 8, 2011, agents from the Federal Bureau of

Investigation (“FBI”) found crack cocaine packaged for resale in his residence, other

packaging paraphernalia and cash. (GX 600, 601, 602, 606.) In addition, after he was

released on bail, Quinn continued to distribute narcotics, as the government proved through

text messages between Quinn and fellow narcotics distributor Sam Gill, in which they

discussed the sale of narcotics on April 5, 2012. (GX 900(a).)

The “260 Wars” and Possession of Firearms

The government also introduced compelling evidence of Quinn’s participation

in the charged conspiracy to murder members of the rival drug crew operating out of the

apartment building at 260 Park Hill, and his use of firearms, including machineguns, in

furtherance of that murder conspiracy, as well the charged racketeering enterprise and

narcotics conspiracies more broadly. In addition to the testimony of Paul Ford discussed

above, cooperating witness Lamar Goodwine testified that he personally observed Quinn

fighting alongside Anthony and Harvey Christian during the so-called “260 Wars.”

Goodwine testified:

A: . . . We was on 260 and they came – Harvey, Nitty and Q [referring to Quinn] and the other brother Flip or Fred – came walking in 225 and took the elevator upstairs to the roof.


21

Q: You could see them enter the building from where you were on the roof of 260? A: Yes. They walked inside the building and a minute or two later they appeared up on the roof. We exchanged gun fire from across roof to roof. Q: Who did you say was present on the roof of 225? A: Harvey, Nitty, Q, their brother Fred and somebody else I couldn’t really identify. Q: Who had weapons on the roof of 225? A: Harvey, Nitty, Fred and Q and another person. Q: What kind of weapons, if you could tell? A: Well, they was mostly handguns, but Nitty had I believe it was an AK, I believe. Q: And what could you see? A: I see – it wasn’t all the way dark yet but it was starting to turn dark so it still had a little bit of light outside. You could see the flashes. We hear the bullets whizzing over our heads and all that.

(Tr. at 1123-24.) Goodwine went on to testify that Anthony Christian’s AK-47 had fired

fully automatically. (Id. 1125-26.2)

The government further proved at trial that Quinn continued to use and carry

firearms in furtherance of his drug dealing and enterprise membership through the date of his

2 The government introduced ample other evidence that the Christian brothers and other enterprise members regularly used and carried automatic weapons in furtherance of their violent crimes, including testimony from Ford, Brian Humphreys and Amos Boone. Further, the government introduced evidence of the massive gunfight proceeding the murder of John Kennedy, also known as “Jihad” in May 1995, including photographs of bullet-riddled buildings, dozens of shell casings from the street and roof of 260 Park Hill, and panicked 911 calls from area residents describing automatic gunfire.


22

arrest in this case. Indeed, agents seized a Hi-Point Model C9 semiautomatic pistol and

loaded magazine from Quinn’s residence on the day FBI agents took him into custody. (GX

605.)

ii. Quinn’s Guilt as to Racketeering (Count One) and Racketeering Conspiracy (Count Two)

Quinn first argues that to prove that he conducted or participated in the

conduct of the affairs the enterprise, the government was required to prove that Quinn

“directed” operations of the charged enterprise. Quinn goes onto claim that the government

failed to establish that he was a leader of the enterprise, and thus his conviction on Count

One must be overturned. (JQ Br. at 3-5.)

As a threshold matter, Quinn is simply incorrect that the government was

required to prove that he “directed,” “operated or managed the charged enterprise.” As the

Court instructed the jury:

The fifth and final element the government must prove beyond a reasonable doubt is that the defendant you are considering conducted or participated in the conduct of the affairs of the enterprise through the pattern of racketeering activity. This means that the defendant must have played some part in the operation or management of the enterprise. The government is not required to prove that a defendant was a member of the management of the enterprise, had a formal position in the enterprise, or had primary responsibility for the enterprise’s affairs or shared in the profit of the enterprise. Rather, an enterprise is “operated” not just by management but also by lower-rung participants in the enterprise who are under the direction of management or carry out its orders. In other words, all that participate in the conduct of the enterprise, whether they are generals or foot soldier[s], are responsible for the affairs of the enterprise.

(Tr. 2682-83 (emphasis added).) Notably, this instruction was later re-read to the jury in

response to jury question. (Id. at 2778-79.) Quinn never objected to this instruction, no


23

doubt because it is based on well-established law. Indeed, the Second Circuit has made clear

that “liability under § 1962(c) is not limited to upper management . . . An enterprise is

‘operated’ not just by upper management but also by lower-rung participants in the enterprise

who are under the direction of upper management.” Napoli v. United States, 45 F.3d 680,

683 (2d Cir. 1995) (quoting Reeves v. Ernst & Young, 507 U.S. 170, 184 (1993)).

Nevertheless, here the government established that Quinn, as a longtime and

trusted criminal associate of Anthony Christian and Harvey Christian, was among the upper

echelon of the charged criminal enterprise. Indeed, the government argued in its rebuttal

summation:

Nobody’s saying that Jason Quinn was Harvey Christian or Anthony Christian’s worker. That’s not what the evidence shows you. What it does show you . . . is that Harvey Christian and Jason Quinn are speaking regularly about strategies for packaging drugs, strategies for pricing drugs, talking about how they’re not in competition, worrying about the drug economy, talking about the quality of drugs, talking about whether a particular supplier is giving them good drugs, talking about what they want to do because a particular supplier has given them bad drugs. Remember that call with Jason Quinn, he says, “I’m going to have to hurt that guy, dog.” They’re talking about things that partners talk about. This isn’t boss and employee only, ladies and gentlemen. Anthony Christian, Harvey Christian, and Jason Quinn worked together. They shared information. They talked about how to cut cocaine, to cook crack cocaine more effectively. They talked about law enforcement and their concerns. Remember Jason Quinn’s recording where he talks about how he doesn’t like making sales out of his building because he’s worried that the police will see, neighbors will see when people are coming and going. That’s what makes this an enterprise. It’s what makes it a narcotic conspiracy because these guys are working together, they’re sharing notes.

(Tr. at 2587-88.)


24

Put simply, the government was not required to prove that Quinn “directed”

the enterprise – only that he was a “thoroughly indoctrinated” participant in the charged

enterprise’s criminal activities. See Napoli, 45 F.3d at 683 (quoting United States v. Wong,

40 F.3d 1347, 1373 (2d Cir. 1994)). Not only was Quinn “thoroughly indoctrinated” in the

enterprise’s criminal activities, he was part of the enterprise’s upper echelon, serving as a

longtime partner and advisor for Anthony Christian and Harvey Christian. Quinn’s

argument therefore fails.

Quinn next argues that the three racketeering acts of which he was convicted

(Racketeering Acts One, Two and Six) were not “vertically” related, because the government

did not establish that he was enabled to commit those offenses solely because of his position

in the charged enterprise. (JQ Br. at 6.)

As Quinn correctly notes, and as the Court properly instructed the jury, the

government was required to prove that Quinn participated in the affairs of the enterprise

through a “pattern” of racketeering activity. The Second Circuit has explained:

[T]he “pattern of racketeering activity” is a series of criminal acts as defined by the statute. Such conduct forms a pattern under RICO when it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events. At least two predicate acts are required to prove a pattern, and the acts must be related and amount to or pose a threat of continued criminal activity. The requirements of relatedness and continuity protect defendants from RICO charges based on isolated or sporadic criminal acts. . . . Horizontal relatedness requires that the racketeering predicate acts be related to each other. However, that relationship need not be direct; an indirect relationship created by the relationship of each act to the enterprise will suffice. Vertical relatedness means that the acts are related to the enterprise. It requires that


25

the defendant was enabled to commit the offense solely because of his position in the enterprise or his involvement in or control over the enterprise’s affairs, or because the offense related to the activities of the enterprise. Although the government must provide sufficient evidence of each kind of relatedness, both the vertical and horizontal relationships are generally satisfied by linking each predicate act to the enterprise. This is because predicate crimes will share common goals and common victims and will draw their participants from the same pool of associates (those who are members and associates of the enterprise).

Burden, 600 F.3d at 216 (internal citations and quotation marks omitted).

The Court explained this element of racketeering to the jury in the following

manner:

To constitute a pattern of racketeering activity, the racketeering acts must also be “related,” that is, they must have the same or similar purposes, results, participants, victims, or methods of commission, or be otherwise interrelated by distinguishing characteristics and not be merely isolated events. To establish that two racketeering acts are related to the enterprise, the government must prove one or more of the following: (1) that a defendant’s position in the enterprise facilitated his commission of those illegal acts; (2) that the acts were in some way related to the acts of the enterprise, or (3) that a defendant was able to commit the acts by virtue of his position or involvement in the affairs of the enterprise. The racketeering acts must also either have extended over a substantial period of time or have posed a threat of continued criminal activity. A threat of continued unlawful activity may be established when evidence shows the racketeering acts were part of a long-term association that existed for criminal purposes or when the racketeering acts are shown to be the regular way of conducting the affairs of the enterprise. In determining whether the government has proven the threat of continued, unlawful activity, you are not limited to consideration of the specific racketeering acts charged against a defendant. Rather, in addition to considering such acts you may also consider the nature of the enterprise, and other unlawful activities of the enterprise and its members viewed in their entirety, including both charged and uncharged unlawful


26

activities. A pattern may be established by proof that a defendant operated as part of a long-term association.

(Tr. at 2681-82.)

The evidence at trial amply established both the requisite vertical and

horizontal relatedness of the predicates of which Quinn was convicted. Indeed, the

government established that Quinn was a longtime associate of Anthony Christian and

Harvey Christian, as far back as the early 1990s, when Paul Ford testified that he regularly

saw them together as the Christian brothers ascended to become the most powerful drug

dealers in Park Hill. (Id. at 824 (“Jason Quinn was always in the building at 55 [Bowen]

hanging out with the Christian brothers.”).) As Lamar Goodwine testified, Quinn fought

alongside the Christian brothers during the 260 Wars, discharging firearms at members of a

rival drug crew from a building rooftop during that conflict. (Id. at 1123-24.) It was only

because of this longtime criminal association that the Christian brothers trusted Quinn

sufficiently to share sources of drug supply, to pool money for drug purchases, and to discuss

strategies for distributing narcotics and avoiding detection by law enforcement officials.

Stated simply, Quinn was permitted to be part of the Christian brothers’ narcotics conspiracy

only because he had proved himself as a reliable criminal associate through his longtime

association and support in acts of violence, like during the 260 Wars. Thus, there was ample

evidence of vertical and horizontal relatedness to support the jury’s conclusion that the

government proved that Quinn participated in a “pattern of racketeering activity.”

Quinn also makes a perfunctory argument that “the government totally failed

to adduce evidence that Quinn reached a meeting of the minds to commit racketeering as

charged in the Indictment.” (JQ Br. at 10.) He offers no legal or evidentiary support for this


27

argument. The Court properly instructed the jury as to the elements that the government was

required to prove as to Count Two, and the jury returned a conviction. There is no reason to

disturb the jury’s finding.

2. Narcotics Conspiracy (Racketeering Act One and Count Three)

Quinn challenges the sufficiency of the government’s evidence with respect to

his membership in the narcotics conspiracy with Anthony Christian and Harvey Christian

(Racketeering Act One, Count Three). Because he sets forth no reason for the Court to

substitute its own factual findings for that of the jury, these arguments fail. In particular, as

set forth above in greater detail, the government proved Quinn’s guilt through the testimony

of cooperating witnesses, telephone recordings captured pursuant to judicially authorized

wiretaps, and drug seizures. Further, during two lengthy discussions with Harvey Christian

on April 4, 2011, Quinn discussed pricing strategies and recent drug transactions that fully

supported a jury inference that he possessed narcotics with the intent to distribute on or about

that date.3 There was ample evidence to support the jury’s decision to convict Quinn as to

the narcotics conspiracy.

3 Curiously, Quinn argues that FBI Agent Wayne Jacobs’ grand jury testimony regarding Quinn’s possession of narcotics on or about April 4, 2011 would somehow be relevant to the question of whether the trial jury’s convictions on Racketeering Act Six and Count Seven were supported by sufficient evidence. (JQ Br. at 8-9.) Of course, that is incorrect as a matter of law. See, e.g., United States v. Mechanik, 475 U.S. 66, 70 (1986) (“[T]he petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury’s verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.”).


28

3. Murder Conspiracy – The 260 Wars (Racketeering Act Two)

Quinn also challenges the sufficiency of the evidence proving his membership

in the conspiracy to murder members of a rival drug crew during the 260 Wars (Racketeering

Act Two). (JQ Br. at 6-8.) However, with respect to Racketeering Act Two, the government

introduced testimony from numerous witnesses, including cooperating witnesses and law

enforcement officials, regarding the 260 Wars. The government also introduced evidence of

Quinn’s close association with the Christian brothers during that conflict. In addition, Lamar

Goodwine testified about having witnessed Quinn discharging firearms with Anthony

Christian and Harvey Christian from a rooftop. This evidence was compelling proof of

Quinn’s membership in the conspiracy to murder members of the rival drug crew at 260 Park

Hill.4

4. The Conspiracy to Murder Corey Brooker (Racketeering Act Three) and the Murder of Jerome Estella in Aid of Racketeering (Racketeering Act Four and Count Four)

Anthony Christian argues that the Court should overturn the jury’s verdict as

to the conspiracy to murder Corey Brooker, also known as “Shank Bank,” and the murder of

4 In his December 10, 2014 submission styled as a “Response To Arguments Made In Defendant Anthony Christian’s Memorandum Of Law,” Quinn once again cites to evidence presented to the grand jury in support of his Rule 29 motion. Specifically, Quinn claims that “before the grand jury the government does not appear to have corroborated the account of Lamar Goodwine.” (JQ Supp. Br. at 2.) Quinn further states that Agent Jacobs’ testimony in the grand jury “differed as to Quinn’s role” in the 260 Wars. (Id. at 2.) Clearly, the grand jury found Agent Jacobs’ testimony, including his summary of information provided by Goodwine, sufficient to return an indictment charging Quinn with participating in the 260 Wars. In any case, once again, the government’s evidence presented to the grand jury has no bearing on the sufficiency of its evidence at trial. Indeed, the government is certainly under no obligation to present all of its evidence to the grand jury. As such, it would be of no moment if the government did not present to the grand jury all of the evidence corroborating Goodwine that it highlighted during trial summations.


29

Jerome Estella, also known as “Boo Boo,” because the testimony of Brian Humphreys and

Paul Ford was incredible as a matter of law. (AC Br. at 5-6.) This argument lacks merit and

should be rejected.

a. Legal Standard

In addition to the general principles that apply to Rule 29 motions, which are

set forth above, it is well established that a district court deciding such a motion may not

assess witness credibility, resolve inconsistent testimony against the verdict, or otherwise

weigh the significance of the evidence. United States v. Autuori, 212 F.3d 105, 114 (2d Cir.

2000); United States v. Cunningham, 723 F.2d 217, 232 (2d Cir. 1983) (trial judge may not

“set aside [a] guilty verdict simply because he would have reached a different result if he had

been the fact-finder”). The court may grant the motion only if the evidence pointing to guilt

“is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable

doubt.” United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999) (citation and quotation

marks omitted). Otherwise, it “must let the jury decide the matter.” United States v. Taylor,

464 F.2d 240, 243 (2d Cir. 1972). “These strict rules are necessary to avoid judicial

usurpation of the jury function.” United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984);

see also United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003) (“courts must be careful

to avoid usurping the role of the jury” in deciding Rule 29 motions).

b. Application

In light of these principles, it would be nearly impossible for the defendants to

prevail on the basis of their assessment of witness credibility. Indeed, even in the cases cited

by the defense, the court found that it would be improper to find the witnesses incredible. In

United States v. Shulman, 624 F.2d 384 (2d Cir. 1980), the Second Circuit noted that


30

“[w]hile theoretically the testimony of a witness might be so incredible that no reasonable

juror could believe him,” but it then “decline[d] the invitation” to second-guess the jury’s

verdict and find that the witness at issue could not have been believed, id. at 388. Similarly,

in Lyda v. United States, 321 F.2d 788 (9th Cir. 1963), the Ninth Circuit stated that “there

comes a point when [a] witness’ qualifications are so shoddy that a verdict of acquittal

should have been directed,” but then concluded that “[b]earing in mind the limited role of an

appellate court in a criminal appeal, we do not think that point was reached here,” id. at 795.

In addition, the government notes that, contrary to the defense’s arguments,

the testimony of Humphreys and Ford was not merely sufficient in some technical sense, but

in fact was credible in light of the totality of the evidence offered during trial. First, with

respect to the conspiracy to murder Brooker, Humphreys’ and Ford’s testimony was

generally consistently as to events they both witnessed. In particular, as noted above, they

both testified that Anthony Christian wanted Brooker murdered, that Ford agreed it should be

done, and that Humphreys was assigned to do it. Given that this plan was agreed to fifteen

years prior to trial, this general consistency about events and participants is a strong sign of

credibility. To be sure, Humphreys and Ford recalled certain details differently –

Humphreys believed Ford joined Anthony Christian in ordering the murder, whereas Ford

recalls that he approved it after Anthony Christian proposed it, and they also differed in the

precise location, number of meetings and attendees of the meetings to plan the Brooker

murder – but this merely indicates that neither the witnesses nor the government made any

effort to fabricate testimony or to make different witnesses’ testimony match.

With respect to the Estella murder, Humphreys and Ford provided some of the

same information, but the differences in their testimony are easily explained by the fact that


31

Humphreys actually murdered Estella, whereas Ford only learned about the murder after it

occurred. As the government argued in closing, to the extent the testimony differed, it made

sense to credit Humphreys as to details of which he had first-hand knowledge. In addition,

Humphreys’ testimony was corroborated by objective facts. In particular, evidence outside

his testimony confirmed that he was arrested on the fifth floor of 55 Bowen – where he

claimed he went after the murder to meet with Anthony Christian and to return the murder

weapon to him, which is highly probative of Anthony Christian’s role in the murder – and

that Harvey Christian called the Christian brothers’ apartment from jail minutes after the

murder, consistent with Humphreys’ recollection. (GX 204 (phone records), 205 (phone

records), 1004 (stipulation regarding Humphreys’ arrest).) This sort of corroboration, based

on evidence that Humphreys could not have created or known about, is powerful, and the

government submits that in light of this corroboration, a reasonable juror was legally entitled

to credit Humphreys’ testimony implicating Anthony Christian.

As for Ford’s testimony about Estella, the government submits that it was

highly credible precisely because it did not overtly implicate Anthony Christian. As noted

above, Ford testified that Anthony Christian told him that Humphreys had murdered Estella,

but Ford did not say or even suggest that Anthony Christian admitted to having authorized

the murder. If Ford had wanted to falsify his testimony – whether to render it consistent with

Humphreys or to inculpate Anthony Christian – it would have been easy for him to testify

that Anthony Christian, in addition to reporting to him that Humphreys murdered Estella, had

also admitted his role. Indeed, if Ford wanted to falsify his testimony in order “help” the

government, he could have also said that Anthony Christian told him that Harvey Christian

had also authorized the murder in advance. Because Harvey Christian was incarcerated at


32

the time, and communicated with Anthony Christian by phone, it is certainly possible that

this occurred, and testimony to that effect would not have been logically inconsistent with

Humphreys’ testimony. That Ford did not inculpate the Christian brothers in the Estella

murder strongly indicates that his testimony is generally trustworthy.

In light of the applicable legal standards and the evidence and circumstances

described above, the government respectfully submits that the evidence was sufficient to

prove the conspiracy to murder Brooker and the murder of Estella.

5. The Conspiracy to Murder William Jones (Racketeering Act Five and Count Five)

Anthony Christian selectively quotes from the transcript to argue that the

conspiracy to murder William “Buddha” Jones was not undertaken in furtherance of the

enterprise. Anthony Christian fails to cite any case law in support of his argument and he

omits portions of the transcript that prove beyond a reasonable doubt that the dispute

threatened the enterprise and that the conspiracy to murder “Buddha” was undertaken to

protect enterprise members and their turf. Anthony Christian’s argument has no basis in law

or fact and should be rejected.

a. Legal Standard

To obtain a conviction on a substantive RICO count, the “government must

prove both that an enterprise exists and that the conduct in furtherance of the enterprise

comprises a pattern.” Burden, 600 F.3d at 216. Conduct forms a pattern sufficient to support

a RICO conviction when it “‘embraces criminal acts that have the same or similar purposes,

results, participants, victims, or methods of commission, or otherwise are interrelated by

distinguishing characteristics and are not isolated events.’” Id. (quoting H.J. Inc. v. Nw. Bell


33

Tel. Co., 492 U.S. 229, 240 (1989)). At least two predicate acts are required to prove a

pattern, and the acts must be related and “‘amount to or pose a threat of continued criminal

activity.’” Id. (quoting United States v. Minicone, 960 F.2d 1099, 1106 (2d Cir. 1992)).

“Relatedness” for RICO purposes encompasses both “horizontal” and

“vertical” relatedness. “Horizontal relatedness requires that the racketeering predicate acts

be related to each other.” Burden, 600 F.3d at 216. As the Second Circuit has explained, “an

indirect relationship created by the relationship of each act to the enterprise will suffice” to

demonstrate horizontal relatedness. Id.; see also United States v. Polanco, 145 F.3d 536, 541

(2d Cir.1998) (“A predicate act is related to a different predicate act if each predicate act is

related to the enterprise.”). “Vertical relatedness means that the acts are related to the

enterprise.” Burden, 600 F.3d at 216. Vertical relatedness “requires that the defendant was

enabled to commit the offense solely because of his position in the enterprise or his

involvement in or control over the enterprise’s affairs, or because the offense related to the

activities of the enterprise.” Id. Although the government must provide sufficient evidence

of each kind of relatedness, “‘both the vertical and horizontal relationships are generally

satisfied by linking each predicate act to the enterprise. This is because predicate crimes will

share common goals . . . and common victims . . . and will draw their participants from the

same pool of associates (those who are members and associates of the enterprise).’” Id.

(quoting United States v. Daidone, 471 F.3d 371, 376 (2d Cir. 2006)).

b. Application

The testimony of cooperating witness Anthony Britt makes clear that, although

the dispute originated as a personal one between Britt and Buddha, it quickly escalated to

involve the enterprise. As background, and as noted in part above, the testimony introduced


34

at trial established that Britt, a high ranking member of the Valentine’s Blood “set” and an

enterprise member, brought Anthony Christian and Harvey Christian into the Bloods gang in

approximately 2009. (Tr. at 1647, 1659-65.) Britt testified that, after Anthony Christian and

Harvey Christian became members of the set, Britt helped Harvey Christian obtain better

wholesale prices on crack cocaine from another member of the same Bloods set, and that

enterprise members Britt, Anthony Christian, Harvey Christian and Robert Fields together

engaged in acts of violence in furtherance of their Bloods membership. (Id. at 1659-65.)

Britt called on Anthony Christian and Harvey Christian for protection because all three were

members of the same Bloods set. (Id. at 1798.)

As Britt explained, the dispute with “Buddha” started late one night between

Britt and Buddha on Targee Street in Park Hill. (Tr. at 1677.) Anthony Christian was

present during the initial confrontation between Britt and Buddha and Christian initially tried

to “quell” the argument between the two. (Id. at 1678.) Buddha was armed at the time and

he pulled a gun on Britt. (Id.) Britt testified that he had brought a weapon with him to Park

Hill that night, but he had given it to Harvey Christian at 55 Bowen Street to store in the

building during Britt’s visit. (Id.)

After the initial confrontation between Britt and Buddha, Britt returned to 55

Bowen where he met up with Anthony Christian. (Tr. at 1879.) Anthony Christian retrieved

Britt’s weapon from the laundry room in 55 Bowen and returned it to Britt. (Id. at 1679.)

Britt stayed at the Christian Brother’s apartment in 55 Bowen that night, and the brothers

permitted Britt to bring his gun into the apartment. (Id. at 1679-80.)

The next morning, Britt chased after Buddha and fired several shots at him,

but did not hit him. (Tr. at 1681.) Britt then abandoned the gun in the laundry room in 225


35

Park Hill and hid in an apartment in that same building. (Id. at 1682.) Shortly after the

shooting, Harvey Christian called Britt and told Britt to come downstairs. (Id.) Britt met

Harvey Christian downstairs at 225 Park Hill and Britt and Harvey Christian together

unsuccessfully tried to retrieve Britt’s gun from the locked laundry room. (Id. at 1682-83.)

As Harvey Christian and Britt were trying to retrieve Britt’s gun, Buddha

entered 225 Park Hill and began firing at both men. (Tr. at 1683.) Britt and Harvey

Christian ran towards 260 Park Hill, and neither was hit. (Id. at 1684, 1685.) Moments later,

Anthony Christian called Harvey Christian on the phone and Harvey Christian explained that

Buddha had been shooting at him and Britt. (Id. at 1684.) Anthony Christian came to meet

Harvey Christian and Britt and the three returned to 55 Bowen together. (Id.) Britt left Park

Hill later that night. (Id. at 1685.)

The next morning, Harvey Christian called Britt and reported that Buddha was

standing outside of 55 Bowen shooting at the building. (Tr. at 1685, 1778.) Harvey

Christian told Britt he wanted to kill Buddha and he asked Britt for help. (Id. at 1799.)

During the call, Harvey Christian also asked Britt for a weapon and Britt came to Park Hill to

bring Harvey Christian a 9mm pistol to use to retaliate against Buddha. (Id. at 1686.) After

Britt arrived in Park Hill, he, Anthony Christian, Harvey Christian and another man drove

around Park Hill looking for Buddha with the intent to kill him if they found him. (Id. at

1687, 1727-28.) Harvey Christian was armed with a 9mm pistol and Britt was armed with a

.380 handgun. (Id. at 1686.) Anthony Christian and Harvey Christian tied t-shirts over their

faces to disguise themselves as the four men drove around the neighborhood looking to kill

Buddha. (Id. at 1687-88.) As Britt explained, when Buddha began shooting at 55 Bowen,

“Harvey [Christian] decided it was too much what Buddha was doing, and it was [Harvey


36

Christian’s] decision to get in the car and go there [looking for Buddha to kill him].” (Id. at

1779.) Britt explained that “Harvey [Christian] said he’s tired of Buddha, and that’s how

[Anthony Christian, Harvey Christian and Britt] went and got a car” to look for Buddha to

kill him. (Id.)

In light of these facts, there can be no serious dispute that the conspiracy to

murder Buddha was related to the charged enterprise. The evidence at trial proved that,

during the charged period, the enterprise had many members who performed distinct roles.

The organization had members who made hand-to-hand drug sales – like Robert Jones,

William Cothren and Jamie Booker, also known as “Momo” – and it had members who

provided muscle and protected the enterprise and its members from external threats – like

Quinn and Robert Fields, and cooperating witness and former enterprise member Anthony

Britt.

It is true, but irrelevant, that the dispute with Buddha originated as a personal

one for Britt. Britt was not in Park Hill when Buddha began shooting at 55 Bowen, the

enterprise’s home base and the location of its drug dealing business. At that moment, as

Buddha threatened the safety of the enterprise’s members and its ability to sell drugs at its

home base, Harvey Christian called in Britt to provide additional muscle and firepower to

protect the enterprise and its members. Harvey Christian called on the enterprise’s muscle

just as he and Anthony Christian had during the 260 Wars and just as Britt had when Britt

needed protection. The conspiracy to kill Buddha was part of the enterprise’s broader goal of

using violence to protect the enterprise’s home base and members from external threats and

to protect the business it ran from 55 Bowen. The conspiracy to murder Buddha was clearly

related to the enterprise, and Anthony Christian’s argument to the contrary should be


37

rejected. See Burden, 600 F.3d at 218-19 (“[T]he charged acts of violence were related to

the enterprise because they were conducted to protect the [enterprise’s] members and garner

them respect in the drug community.”).

6. Possession of Firearms in Furtherance of Other Crimes (Count Six)

Quinn challenges his conviction on Count Six, charging him with using and

possessing firearms, and aiding and abetting the use of firearms, including machineguns, in

furtherance of the charged racketeering enterprise, in violation of Title 18, United States

Code, Section 924(c). (JQ Br. at 10.) Specifically, Quinn argues that “there was no basis for

the jury to conclude that Quinn possessed the requisite advance knowledge that a machine

gun would be deployed” and “Quinn played no critical role in [the] use of any machine gun

or carried any necessary ammunition.” (Id. at 10-11.)

However, not only did the evidence at trial support an inference that Quinn

had “advanced knowledge” regarding the Christian brothers’ use of machineguns, but also

Quinn was present for the use of a machinegun. As set forth in greater detail above, Lamar

Goodwine testified that he personally witnessed Quinn firing from a building rooftop

alongside Anthony Christian, who had an AK-47 machinegun. (Tr. 1123-26.) Accordingly,

there is ample evidence to support the jury’s inference that Quinn aided and abetted Anthony

Christian’s use of a machinegun in furtherance of the racketeering enterprise. His conviction

on Count Six should stand.

II. THE GOVERNMENT DID NOT MAKE ANY IMPROPER ARGUMENTS

The defendants’ motions for new trial, premised on various assertions that the

government made improper arguments, should be rejected.


38

A. Legal Standard

Rule 33(a) provides that “[u]pon the defendant’s motion, the court may vacate

any judgment and grant a new trial if the interest of justice so requires.” The Second Circuit

has held that “[g]enerally, a motion for a new trial ‘should not be granted unless the trial

court is convinced that the jury has reached a seriously erroneous result or that the verdict is

a miscarriage of justice.’” Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir. 2003) (quoting

Atkins v. New York City, 143 F.3d 100, 102 (2d Cir. 1998)). The trial court has “broad

discretion . . . to set aside a jury verdict and order a new trial to avert a perceived miscarriage

of justice.” United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (quoting United

States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992)). Though the Court is entitled to

“weigh the evidence and in so doing evaluate for itself the credibility of the witnesses,”

Sanchez, 969 F.2d at 1413 (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th

Cir.1980)), the Court “must strike a balance between weighing the evidence and credibility

of witnesses and not ‘wholly usurping’ the role of the jury,” Ferguson, 246 F.3d at 133.

A trial court’s discretion to grant a new trial under Rule 33 must be “exercised

sparingly,” and “only with great caution and in the most extraordinary circumstances.”

United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992). “The defendant bears the

burden of proving that he is entitled to a new trial under Rule 33,” United States v.

McCourty, 562 F.3d 458, 475 (2d Cir. 2009), and the crucial question for the court is

whether “it would be a manifest injustice to let the guilty verdict stand.” Sanchez, 969 F.2d

at 1414. A “manifest injustice” occurs where a trial court cannot be satisfied that

“competent, satisfactory and sufficient evidence” supports the jury’s finding of guilt beyond


39

a reasonable doubt, and where a “real concern” exists “that an innocent person may have

been convicted.” Id.

B. Application

1. The Government’s Rebuttal Was Proper

Anthony Christian argues that the government advanced several improper

arguments in its rebuttal summation. The rebuttal, however, was perfectly proper, and none

of the arguments to the contrary has merit.

a. General Legal Standard

Although there are certain limited situations in which a prosecutor’s comments

in a jury address may be improper, “[i]t is a ‘rare case’ in which improper comments in a

prosecutor’s summation are so prejudicial that a new trial is required.” United States v.

Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992). Indeed, the Supreme Court has held that:

Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding. Instead, . . . the remarks must be examined within the context of the trial to determine whether the prosecutor’s behavior amounted to prejudicial error.

United States v. Young, 470 U.S. 1, 11-12 (1985).

When a defendant argues that a prosecutor has made improper arguments,

courts in the Second Circuit apply a three-factor test, which considers “(1) the severity of any

misconduct, (2) the measures taken to cure the misstatements, and (3) their likely effect on

the outcome.” United States v. Forlorma, 94 F.3d 91, 95 (2d Cir. 1996); see also United

States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981). The first factor turns on whether the

misconduct was intentional and whether the misstatements were pervasive or were “minor


40

aberrations in a prolonged trial.” Id. at 1181; see also Forlorma, 94 F.3d at 95; United States

v. Melendez, 57 F.3d 238, 241 (2d Cir. 1995) (“most of the cases in which we have reversed

convictions as a result of prosecutorial misconduct have involved repeated improper

statements”). As to the second factor, a district court’s curative instructions or sustaining of

a defense objection lessens any prejudice. United States v. DeChristoforo, 416 U.S. 637,

644-45 (1974) (curative instructions); United States v. Bautista, 23 F.3d 726, 734 (2d Cir.

1994) (reprimand of the prosecutor). Finally, the third factor considers the likelihood of

conviction absent the misconduct. Compare, e.g., Forlorma, 94 F.3d at 96 (reversible error

where misstatements went to only contested issue at trial), to Modica, 663 F.2d at 1182

(improper remarks were harmless where government’s case was “overwhelming”).

b. The Government Properly Characterized Defense Arguments About Cooperating Witnesses

Anthony Christian argues at great length that the government, in its rebuttal,

characterized defense counsel’s summation as “sleazy.” (AC Br. at 7-8.) This argument is

factually untrue – nobody from the government called any defense attorney “sleazy,” nor was

such a strategy ever even contemplated – and also fails as a matter of law.

i. Legal Standard

As a general matter, in responding to the arguments of defense counsel, the

government should of course avoid characterizing the defense theory in a manner that

impugns the integrity of defense counsel or that is otherwise inflammatory, such as by

describing the defense as a “sham” or as an insult to the jury’s intelligence. United States v.

Bagaric, 706 F.2d 42, 61 (2d Cir. 1983). However, the Second Circuit has found no error in

descriptions of defense arguments as a “fairy tale,” United States v. Jaswal, 47 F.3d 539, 544


41

(2d Cir. 1995), as “desperate” and “struggling,” United States v. Perry, 643 F.2d 38, 51 (2d

Cir. 1981), in limited, non-inflammatory characterizations of defense testimony as “lies,”

United States v. Sanchez Solis, 882 F.2d 693, 707 (2d Cir. 1989), or in arguments that the

jury should not “be fooled” by the tactics of defense counsel, United States v. Marrale, 695

F.2d 658, 667 (2d Cir. 1982).

ii. Application

As an initial matter, the government did not in any way do what defense

counsel says it did. It is important to note that Anthony Christian does not even suggest that

the government used the word “sleazy” or any similar word, but, instead, bases his argument

on the government’s reference in rebuttal to “a classic defense tactic,” a phrase the

government used to refer to defense arguments about certain cooperating witnesses’ criminal

histories and prior lies. (AC Br. at 7-8.) Defense counsel repeatedly alleges that this

argument by the government had the effect of suggesting to the jury that what defense

counsel had done was “sleazy” or otherwise improper. (Id.) However, because the Court

observed the rebuttal, the government respectfully asks for a finding that (1) no such

statement was made, and (2) the rebuttal did not suggest this to the jury. Indeed, the

government respectfully notes that after the jury sat through this lengthy trial, and observed

the outstanding and professional work of defense counsel, any attempt by the government to

characterize defense counsel as “sleazy” could only have backfired and undermined the

government’s own credibility.

Moreover, by referring to the defense’s “tactics” regarding cooperating

witnesses, the government was using a proper, neutral term in the course of directly

responding to defense arguments. In Marrale, the Second Circuit specifically held that such


42

an argument is proper, approving of “the prosecutor’s admonition to the jury not to ‘be

fooled’ by the tactics of Alphonse’s attorney.” 695 F.2d at 667. While it is not clear from

the opinion whether the word “tactic” was used by the prosecution in Marrale – the opinion

focused on the use of the word “fooled,” which, if anything, seems more troubling – the fact

that that Circuit itself used the word “tactic” in this context, and the fact that it approved of

the government’s statement that the jury should not be “fooled” by a defense tactic,

demonstrates that “tactic” is a proper word to use in describing a defense argument, and is

certainly not inflammatory in any legally relevant sense. As the Second Circuit explained in

Marrale, there is a world of difference between the neutral, responsive language used by the

government in this case and the sort of words that have, from time to time, been criticized by

the Circuit:

Nor do we believe the prosecutor’s admonition to the jury not to “be fooled” by the tactics of Alphonse’s attorney falls into the category of impermissible conduct. Statements designed to appeal to the jury’s emotions or to inflame the passions or prejudices of the jury. Thus, we have condemned remarks such as “you have to be born yesterday” to believe appellant’s defense, and the defense is “an insult to your intelligence”; defendant’s “testimony is so riddled with lies it insults the intelligence of 14 intelligent people sitting on the jury”; and “Don’t let [the defendant] walk out of this room laughing at you.” The remarks made by the prosecutor at the present trial pale beside the examples just given.

Marrale, 695 F.2d at 667 (citations and some quotation marks omitted, brackets in original).

Finally, even accepting the defense’s interpretive leaps, the defense’s

argument fails each part of the applicable three-part test. With respect to the first part – “the

severity of any misconduct,” Forlorma, 94 F.3d at 95 – even if there was somehow any


43

misconduct (which there was not), it was unintentional and an “aberration[] in a prolonged

trial.” Modica, 663 F.2d at 1181. With respect to the second part – “the measures taken to

cure the misstatements,” Forlorma, 94 F.3d at 95, the Court will recall that, after the

government’s rebuttal, defense counsel raised several objections and the Court then

addressed the jury as follows:

I wanted to make one observation. We’ve heard very lengthy closing arguments and rebuttal arguments by some very talented lawyers. I want to remind you of something I said at the very beginning of the case; and that is, whatever the lawyers say is not evidence. The only thing the lawyers are here to do in the closing arguments are to present arguments about what they believe the evidence is. Arguments by lawyers about what the other lawyer argued, are even to the extent possible, even less significant and are diversionary. Nonetheless, to the extent that any of the arguments or arguments about the arguments create any concerns for you as to what the evidence is in this case, as you will hear from the instructions you are about to be given, you have the right to review the evidence, whether it’s a transcript, whether it is a videotape, whether it is an audiotape, whether it is a picture, or a map. All of it will be made available to you during your deliberations; simply, requested by a note.

(Tr. at 2610-11 (emphasis added).) Significantly, this instruction was made immediately

after the government rebuttal concluded. The Court could not have made a more clear and

timely statement to address any possible issue defense counsel may have had with the

government’s characterization of its arguments. Finally, with respect to the third part of the

test – “the[] likely effect on the outcome,” Forlorma, 94 F.3d at 95, again it favors rejecting

the defense’s argument. In particular, the third factor considers the likelihood of conviction

absent the purported misconduct. Compare Forlorma, 94 F.3d at 96 (reversible error where


44

misstatements went to only contested issue at trial) to Modica, 663 F.2d at 1182 (improper

remarks were harmless where government’s case was “overwhelming”). In this case, where

the evidence included not one but eight cooperating witnesses, countless law enforcement

officers, six 911 calls, expert witnesses in forensic pathology and firearms analysis, search

warrant evidence, crime scene evidence, telephone records and, perhaps most significantly,

wiretap evidence that, on its own, could have supported convictions as to racketeering,

racketeering conspiracy and a 924(c) charge – and which served, in effect, to corroborate the

general picture painted by every single cooperator – it is inconceivable that a government

reference to a defense “tactic” had any effect on the outcome.

In support of his argument, Anthony Christian cites United States v. Friedman,

909 F.2d 705 (2d Cir. 1990). That case, however, is inapposite, because it involved a

government rebuttal in which the very role of defense counsel was disparaged. In particular,

the government, in rebuttal, stated the following:

And some people would have you pull down the wool over your eyes and forget all that, because while some people, ladies and gentlemen, go out and investigate drug dealers and prosecute drug dealers and try to see them brought to justice, there are others who defend them, try to get them off, perhaps even for high fees.

Id. at 708. On appeal, the government conceded this statement was improper, and the Circuit

ordered a new trial. Id. at 706, 709-10. The statement in Friedman has no bearing on any

statement in this case, despite the defense efforts to turn the word “tactic” into the word

“sleazy,” and the result reached in Friedman is not warranted here.


45

c. The Government Properly Rebutted Arguments About Felix Grant

Anthony Christian next objects to the government’s rebuttal of his arguments

about Felix Grant. In particular, Anthony Christian argues that the government improperly

stated that Felix Grant testified that he needed to tell the truth, rather than that he needed to

say what the government “needed.” (AC Br. at 8-9.) This argument fails because it was the

defense, not the government, that misrepresented Grant’s testimony.

In his summation, defense counsel said the following about Grant, in the

course of making a more general argument about the government’s cooperating witnesses:

Now, just yesterday Felix Grant took the stand and it was interesting. I think it was yesterday, maybe the day before yesterday, whatever. And the Government got to that portion of the examination and asked: “Well, what does the agreement mean to you?” “Well, I have to tell the Government what they need and then I'll get my testimony,” just matter-of-factly. Just think about that, the phraseology: “I’m obligated to tell the Government what they need.” And then he proceeded: “Oh, I have to tell the truth.” The first words out of his mouth were: “I have to tell the Government what they need.” That’s what he’s thinking. You saw the window into his mind.

(Tr. at 2412.) In rebuttal, the government then said the following:

Mr. Gold told you yesterday that when I asked Felix Grant what he was required to do under his cooperation agreement, Mr. Gold told you that Mr. Grant responded that he was obligated to tell the Government what they need, “Just tell the Government what they need and I will get my letter.” Look at the transcripts, ladies and gentlemen. This is page 2079, direct examination of Felix Grant. “Question: Did you plead guilty pursuant to an agreement?” “Answer: Yes, sir.” “Question: What kind of agreement?”


46

“Answer: If I cooperate with the government, the government will write me a letter, if everything went according to. I told the truth and helped the government out, I will receive a letter at the end.” Mr. Gold told you yesterday that Mr. Grant made it seem that truth-telling was an afterthought and really what he had to do was give the Government what it needed, but that’s not what the transcript said.

(Id. at 2570.)

Again, the defense’s argument fails each part of the applicable three-part test.

With respect to the first part – “the severity of any misconduct” – there simply was no

misconduct. Defense counsel emphasized one answer by Grant, and the government invited

the jury to consider another answer when determining what Grant said. The government

never denied that Grant had given both answers, but rather argued that, read together, it was

clear that Grant understood – and had intended to convey to the jury – that his obligation was

to tell the truth. Defense counsel takes particular issue with the government statement that

“that’s not what the transcript said” (AC Br. at 9), but in light of the full statements quoted

above, it is clear that what the government argued the transcript did not say is that Grant

viewed the truth as an afterthought, not that it did not contain the literal answer cited by

defense counsel. This is a perfectly appropriate argument and is well within the bounds

established by the case law. United States v. Roldan-Zapata, 916 F.2d 795, 807 (2d Cir.

1990) (the government is “free to make arguments which may be reasonably inferred from

the evidence presented”). Moreover, by citing to the relevant transcript page, the

government was clearly inviting the jury, if it had any concerns about Grant, to read the


47

testimony and decide for itself.5 As for the second factor – “the measures taken to cure the

misstatements” – the instruction quoted above, given by the Court immediately after the

government’s rebuttal, effectively advised the jury that the lawyers’ arguments were not

evidence and that the lawyers’ arguments about each other’s arguments were even farther

removed from evidence. Finally, with respect to the third part of the test – “the[] likely

effect on the outcome” – it is exceedingly unlikely that any aspect of the outcome of this case

hinged on whether Grant believed he needed to tell the truth or say what the government

wanted him to say. The Court will recall that Grant’s testimony was essentially limited to his

sale of drugs to enterprise members in 2010 and 2011, and wiretap recordings of the

defendants and Grant clearly proved that he in fact sold drugs to them in that period.

d. The Government Did Not Improperly “Vouch” For Its Cooperating Witnesses

Finally, Anthony Christian argues that the government improperly told the

jury that it should believe the cooperators because (1) they did not know what the other

evidence in the case was and (2) the government believed them. (AC Br. at 10-11.) These

arguments rely on excerpts of the government’s rebuttal summation taken out of context and,

5 Indeed, the government repeatedly made clear that the primary point of this portion of its rebuttal summation regarding defense counsel’s misstatements of the record was to encourage the jurors to review the trial transcripts for themselves. (See Tr. at 2569-70 (“And ladies and gentlemen, I submit to you that Mr. Gold and Mr. Chabrowe have not been careful with the facts in this case. I’m going to give you some examples, but I encourage you, again, to look at the transcripts. If something doesn’t seem right to you, look at what was actually said.”); Id. at 2571 (“Ladies and gentlemen, I represent the Government. I’m a lawyer. What I say to you isn’t evidence in this case. My job is to try to highlight the evidence that’s important, that will help you make the decision, but you should look at the transcripts if you have any questions. That’s the point I’m trying to make.”).) The jury clearly saw fit to do so, requesting the transcripts for nearly all the cooperating witnesses during its deliberations.


48

when considered in the full context of the trial and other summations, they do not constitute

improper vouching under Second Circuit case law. In fact, in the portions of the rebuttal that

defense counsel has carefully selected to support this argument, the government does not

once state that it personally believes any cooperator told the truth. Accordingly, these

arguments must fail and the motion to vacate the jury’s verdict on this ground should be

denied.

i. Legal Standard

As a general matter, prosecutors should not personally vouch for the

credibility of witnesses or the truth of the government’s evidence. United States v. Miller,

116 F.3d 641, 683 (2d Cir. 1997). In particular, the Second Circuit has criticized “rhetorical

statements punctuated with excessive use of the personal pronoun ‘I,’” and has held that “[i]t

is obligatory for prosecutors to find careful ways of inviting jurors to consider drawing

argued inferences and conclusions and yet to avoid giving the impression that they are

conveying their personal views to the jurors.” United States v. Nersesian, 824 F.2d 1294,

1328 (2d Cir. 1987)

However, the Second Circuit has drawn a bright line between, on the one

hand, a prosecutor’s improper statement that he personally knows that testimony was

truthful, see, e.g., United States v. Modica, 663 F.2d 1173, 1178 (2d Cir. 1981), and, on the

other hand, perfectly proper factual arguments prefaced by language such as, “I submit,” see,

e.g., United States v. Newton, 369 F.3d 659, 681 (2d Cir. 2004) (approving statements in

which prosecutor “submitted” certain credibility conclusions to the jury); United States v.

Perez, 144 F.3d 204, 210 (2d Cir. 1998) (approving statement “I submit to you that [the

government’s witnesses] are reliable, you can trust their testimony. You can count on them.


49

And there’s some reasons why I say that to you.”); United States v. Clark, 613 F.2d 391, 405

(2d Cir. 1979) (“And I submit to you, ladies and gentlemen, that [the government’s] evidence

is credible. It is believable. It is supported by the known facts in the case.”). The use of

such phrases is especially proper after the defense impugns the integrity of the government’s

case by attacking the credibility of a cooperating witness. United States v. Eltayib, 88 F.3d

157, 173 (2d Cir. 1996).

In addition, a prosecutor’s arguments about factual issues are generally found

proper when they are coupled with a discussion of the supporting evidence. See, e.g., United

States v. Williams, 690 F.3d 70, 76 (2d Cir. 2012) (prosecutor did not vouch for witnesses by

referring to their testimony as “the absolute truth” where arguments relied upon evidence

supporting the contention); Miller, 116 F.3d at 683 (prosecutor’s assertion that defendants

were “guilty on all counts” was not improper when it came after “extensive discussion of the

evidence” and exhortation to decide case based on the evidence); Eltayib, 88 F.3d at 173 (use

of “I submit” was proper when arguments either relied on evidence that corroborated the

government’s witness or asked jurors to draw reasonable inferences).

Finally, the government is permitted greater latitude in responding to defense

arguments that impugn the integrity of the government’s case. When defense counsel makes

such arguments, the prosecutor is entitled to respond with “rebutting language suitable to the

occasion.” United States v. La Sorsa, 480 F.2d 522, 526 (2d Cir. 1973) ; see also United

States v. Rivera, 22 F.3d 430, 438 (2d Cir. 1994) (prosecutor’s arguable vouching for witness

was not improper in light of defense summation that accused government of fabricating

testimony); United States v. Myerson, 18 F.3d 153, 163 (2d Cir. 1994) (“any improper

conduct on the part of the government was in response to [defendant’s] attack on the


50

government’s case”). In United States v. Praetorius, 622 F.2d 1054, 1060-61 (2d Cir. 1979),

the Court approved a prosecutor’s argument that if the jury believed that the government's

case was “a deliberate attempt by someone to deceive you, to lie to you, to connive you, to

swindle you,” then it should acquit the defendants. In United States v. Farhane, 634 F.3d

127, 167-68 (2d Cir. 2011), the Court of Appeals found that the prosecutor’s rebuttal

comment that “the government . . . is not on trial” was a permissible response to the

defense’s improper selective prosecution arguments and that a reference to agents “putting

their lives on the line” was a fair response to a defense attack on the agents’ credibility and

competency. In United States v. Carr, 424 F.3d 213, 228-29 (2d Cir. 2005), the Court of

Appeals ruled that, in light of defense counsel’s “persistent attacks” on the credibility of

cooperating witnesses, the government had not improperly vouched for the witnesses by

arguing that they had no motive to lie and thereby jeopardize the benefits they had earned by

testifying in other cases.

ii. Application

In this case, the government’s rebuttal arguments were proper responses to

numerous aggressive defense arguments about the cooperating witnesses’ credibility,

criminal history and mental health, as well as the government’s decisions to even call them

as witness. Counsel to Anthony Christian argued that:

Doesn’t matter what Brian Humphreys says. If you can’t believe Brian Humphreys, you can’t believe what he tells you, certainly not beyond a reasonable doubt. And ladies and gentlemen, if he told you this morning it was raining out and you’re looking out the window and it’s raining out, you’d still think to yourself, “Is it really raining? I better double check because if Humphreys is telling me it’s raining, it probably isn’t.” Brian Humphreys is a liar. Paul Ford is a liar. And ladies and gentlemen, a liar lies, that’s what he does. If he’s


51

cornered, he’ll just say what pops into his head to try and get him out of whatever difficulty he might think himself to be in, and then later on can’t remember what he said because it was never the truth to begin with. And so time after time you saw on the witness stand on direct he’s fine, he sails through, knows what’s going to be asked, has a ready answer for everything, but when it comes time for cross what happens? He phumphers. He can’t remember. How many times “I don’t remember. I don’t remember.” I’d read to him trial transcript testimony from his previous two times that he testified “I don’t remember.” Why? ’Cause he makes it up as he goes along. It’s hard to remember when you’re doing something like that.

(Tr. at 2399-2400.) Counsel to Anthony Christian also argued that two cooperating

witnesses – Bestman and Ford – pled guilty to murders they never committed, simply to

satisfy the government. (Id. at 2401-02, 2407-10.) He appealed to the jurors’ visceral fears

about Humphreys seeking a motion for a reduction in his sentence. (Id. at 2404 (“Brian

Humphreys may hit the streets. Lock up your windows, folks. Close your doors. Don’t let

the kids out because Brian Humphreys may be back in town.”).) He called the cooperators

“lowlifes” who “don’t think like normal people.” (Id. at 2410.) He described a crime

committed by Boone – the details of which the Court had specifically precluded from

evidence – as “so repulsive” and “so egregious, so outrageous” that Boone “was afraid that if

he told the truth about it to . . . he would not get his cooperation agreement,” leading to a

government objection and a Court admonition of defense counsel. (Id. at 2414-15.) In the

course of arguing about Humphreys, counsel to Anthony Christian even disparaged the

government: “It’s mind boggling, frankly, you know, this person [i.e., Humphreys] was

given a plea agreement, a cooperation agreement with that history. They [i.e., the

prosecutors] didn’t act in bad faith, as I said earlier. They exercised bad judgment. This is

not who you give a cooperation agreement to because this is not someone you can trust or


52

come before a jury like you in a serious case like this and tell the truth. You don’t do that.”

(Id. at 2424-25.) Later, he asked of Humphreys, “Will a plea agreement, a promise to tell the

truth, constrain this maniac to whom murder is ordinary? The laws of God and man don’t

apply to this person.” (Id. at 2428.) Soon after, he argued, “I guess with Brian Humphreys

it’s a little bit easier to know when he’s lying. Just look to see if his lips are moving. . . .

With Paul Ford maybe we can come up with a different formula. Maybe if he hesitates for

less than 15 seconds before answering me, he’s telling the truth. But when it’s for a minute

or more, then he’s lying.” (Id. at 2435.) Referring to Humphreys’ mental health issues,

counsel to Anthony Christian stated, “[W]e all have this little voice in our head that tells you

stop. It’s the little voice in your head that keeps you from crossing that line into an area

where you really shouldn’t go. Brian Humphreys hears a different voice. I don’t know what

it tells him, but it doesn’t tell him to tell the truth. And it certainly never stopped him from

committing horrific crimes.” (Id. at 2448.) And, finally, he said that Ford’s testimony

consisted of reading from “Humphreys’ script.” (Id. at 2461.)

Not to be outdone, counsel to Harvey Christian argued to the jury that “the

Government is asking you to find proof beyond a reasonable doubt based upon all of these

lying cooperators[.]” (Id. at 2519.) He described Britt as “so arrogant” and “so angry” (id. at

2531), and later as “very combative” (id. at 2558), and even told the jury that Britt answered

one of counsel’s questions “with that face, which was disgusting, because to him this is all a

game.” (id. at 2562). He described Humphreys by stating, “This is a guy, ladies and

gentlemen, who literally, as far as I could tell, has no conscience, has absolutely no concept

of right and wrong, no concept of morality whatsoever,” and also reminded the jury of “the

voices in his head.” (Id. at 2536-37.) Like counsel to Anthony Christian, he took steps to


53

conflate his arguments about Humphreys with disparaging comments about the government,

and at the same time injecting his own personal opinion into the summation:

What struck me in listening to [Humphreys] is at what point would the government say, you know what, I don’t care, I don’t believe you, I am not going to put you on the stand as a representative of the United States government and ask a jury to find someone else guilty based upon you because you are offensive, you are a liar, you’re disgusting and you have no conscience? How much more would it have to be? Because what I saw was someone who literally had no morality whatsoever, no concept of right or wrong. Doesn’t even know what it means. So at what point would it get to be too much?

(Id. at 2538-39.) He stated of Humphreys – with absolutely no good-faith basis – “I’m sure

he’s killed many more people” than those he admitted to killing, leading to a government

objection and leading the Court to admonish defense counsel to “stick to the record.” (Id. at

2541.) He again offered his own opinion to the jury when he said of Ford that he was “so

good I think at avoiding the truth.” (Id. at 2546.) He said that “Humphreys told a million

lies, Ford told a million lies.” (Id. at 2562.)

Under the law, it is these defense arguments – arguments attacking the

cooperating witnesses’ credibility, mocking Humphreys’ mental health issues, providing

personal opinions about who is telling the truth, criticizing the government for entering

cooperation agreements – that form the background against which the government’s rebuttal

must be considered. Carr, 424 F.3d at 228-29 (in light of defense counsel’s “persistent

attacks” on the credibility of cooperating witnesses, the government had not improperly

vouched for the witnesses by arguing that they had no motive to lie and thereby jeopardize

the benefits they had earned by testifying in other cases); Myerson, 18 F.3d at 163 (2d Cir.

1994) (“any improper conduct on the part of the government was in response to [defendant’s]


54

attack on the government’s case”); Rivera, 22 F.3d at 438 (2d Cir. 1994) (prosecutor’s

arguable vouching for witness was not improper in light of defense summation that accused

government of fabricating testimony); La Sorsa, 480 F.2d at 526 (2d Cir. 1973) (prosecutor

entitled to respond with “rebutting language suitable to the occasion”).

In this context, the government respectfully submits that the statements that

the defense has characterized as vouching are not improper. With respect to Anthony

Christian’s first argument, the government properly argued that the incentives created by the

witnesses’ cooperation agreements provided a basis for the jury to believe their testimony.

In rebuttal, the government explained that

Paul Ford, like all the cooperating witnesses, don’t dare accuse these defendants of things that they didn’t do because it's too risky, because as all the cooperators told you, they don’t know what the other proof is, and if they get caught in a lie, they’re going to have a lot to answer for. They’re going to have their agreements torn up. Mr. Gold and Mr. Chabrowe said the Government is not sticking to its word on the whole “cooperation agreements being torn up” point. He says we talk a big game about tearing up cooperation agreements, but we really don’t stick to it. Ladies and gentlemen, ask Brian Humphreys if that’s true. We tore up his cooperation agreement. He had to plead guilty to a new crime and he got an additional five years on top of the 20 that he received for his violent crimes. Ask William Cothren if that’s true, ladies and gentlemen. He testified that because of his marijuana use while he was on bail his cooperation agreement is in jeopardy. He could face a five-year mandatory minimum. In any case, remember a judge decides the sentence here. The letter isn’t some magic ticket. The letter, as all the cooperators explained, includes the good and the bad, and ultimately a judge decides.

(Tr. at 3583-84.) Far from “bolstering and vouching for the witnesses as a collective group”

(AC Br. at 10), this rebuttal point was, in the context of defense counsel’s many aggressive


55

attacks on the witnesses’ credibility, an appropriate reminder to the jury that the witnesses’

cooperation agreements provided a strong incentive for them to tell the truth and that failure

to do so could result in serious consequences. Several witnesses, including Brian

Humphreys, testified that they did not know who else the government intended to call at trial,

see, e.g., Tr. at 754 (testimony of Brian Humphreys), 1269 (testimony of Lamar Goodwine),

1800 (testimony of Anthony Britt), but that fact is largely irrelevant given that the argument

concerned the truth-telling incentives created by the cooperation agreements and the

consequences the witnesses would face if they fabricated stories about the defendants.

The government also properly responded to defense counsel’s arguments when

it stated in rebuttal that it called the cooperating witnesses to testify because “we believed

that their testimony was important, it was probative, it provided you with a more full sense of

who these defendants are, what they were about, and what they did.” (AC Br. at 10; Tr. at

2577.) That the government believed these things was self-evident to anyone who attended

the trial – certainly the government would not call witnesses it believed were not probative –

and stating these beliefs does not constitute vouching under any case.

Moreover, when the government stated that when a cooperator told it

something, “agents and prosecutors went back and said what can we do to corroborate what

we’ve been told? How can we establish that what we’re hearing is actually true?” (AC Br. at

10-11; Tr. at 2577), it was merely responding to the implication by defense counsel, made

repeatedly, that the government had either been duped by its witnesses or knowingly

presented their false testimony. Indeed, as defense counsel concedes, “[t]he rebuttal then

proceeded to argue how the witnesses were corroborated in various ways” (AC Br. at 11),

precisely the sort of context that turns purported “vouching” into a permissible rebuttal


56

argument. In its proper context, the government’s rebuttal was carefully tailored to fit

squarely within the permissible range of arguments described by the Second Circuit in Perez,

144 F.3d at 210 (“I submit to you that [the government’s witnesses] are reliable, you can

trust their testimony. You can count on them. And there’s some reasons why I say that to

you.”), Clark, 613 F.2d at 405 (“And I submit to you, ladies and gentlemen, that [the

government’s] evidence is credible. It is believable. It is supported by the known facts in

the case.”) and Williams, 690 F.3d at 76 (prosecutor did not vouch for witnesses by referring

to their testimony as “the absolute truth” where arguments relied upon evidence supporting

the contention).

Finally, to the extent that anything the government said in rebuttal could be

characterized as “vouching,” the government respectfully submits that, again, the defense’s

argument fails each part of the applicable three-part test. With respect to the first part – “the

severity of any misconduct” – assuming there was any, it was certainly not severe in light of

the defense’s comments in summation and the fact that the government rebuttal actually cited

the evidence in the record rather than simply asserting government opinion. With respect to

the second factor – “the measures taken to cure the misstatements” – the Court’s instructions

that followed the government’s rebuttal effectively advised the jury that the lawyers’

arguments were not evidence. Finally, with respect to the third part of the test – “the[] likely

effect on the outcome” – again it is exceedingly unlikely, in a case involving eight

cooperating witnesses and numerous other witnesses and types of evidence that any aspect of

the outcome hinged on whether the jury thought the government lawyers personally believed

the cooperating witnesses.


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For all of these reasons, the Court should reject the Anthony Christian’s

arguments about the government’s rebuttal.

2. Quinn is Not Entitled to a Kastigar Hearing

Defendant Quinn argues that the Court should grant him a new trial under

Rule 33 as a result of “government misconduct” because the government relied on Quinn’s

pre-trial proffer statements to charge him with Racketeering Acts Two and Six and Counts

Six and Seven, and, he asserts, he is therefore entitled to a Kastigar hearing. (JQ Br. at 11-

13.) Quinn is not entitled to a hearing pursuant to Kastigar v. United States, 406 U.S. 441

(1972), because he was not compelled to speak to the government – in June 2011 he

proffered with the government twice voluntarily and in the presence of counsel – and he was

not granted derivative use immunity for his statements. Kastigar is inapposite to this set of

circumstances and Quinn does not cite a single case in any district in which a court has

conducted a Kastigar hearing under such circumstances. Accordingly, Quinn’s motion for a

hearing should be denied and his Rule 33 motion on this ground should be denied.

a. Applicable Law

Title 18, United States Code, Section 6002 provides “use and derivative use

immunity” for testimony given by witnesses who are compelled to testify. See generally

United States v. Blau, 159 F.3d 68, 72-73 (2d Cir. 1998) (discussing immunity and Kastigar

generally). Section 6002 provides that:

Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to . . . [, inter alia,] a court or grand jury of the United States . . . and the person presiding over the proceeding communicates to the witness an order issued under this title, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but


58

no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

18 U.S.C. § 6002 (emphasis added). As the Supreme Court has explained, “[t]his total

prohibition on use in [§ 6002] provides a comprehensive safeguard, barring the use of

compelled testimony as an ‘investigatory lead,’ and also barring the use of any evidence

obtained by focusing investigation on a witness as a result of his compelled disclosures.”

Kastigar, 406 U.S. at 460 (internal footnote omitted).

In Kastigar, the Supreme Court upheld the constitutionality of § 6002 against a

Fifth Amendment challenge. The Court explained that “[t]he power of government to

compel persons to testify in court or before grand juries and other governmental agencies is

firmly established in Anglo-American jurisprudence” but is limited by the Fifth

Amendment’s privilege against self-incrimination. Id. 443-44. The Court held that the

“immunity from use and derivative use [provided by § 6002] is coextensive with the scope of

the [Fifth Amendment] privilege against self-incrimination, and therefore is sufficient to

compel testimony over a claim of the privilege.” Id. at 453.

The Court also explained that, where testimony is compelled under a grant of

use and derivative use immunity, the person granted such immunity “is not dependent for the

preservation of his rights upon the integrity and good faith of the prosecuting authorities.”

Id. at 460. Rather, once a defendant demonstrates that (1) he has testified under a grant of

use and derivative use immunity (2) to matters related to the challenged federal prosecution,

the burden then shifts to the government to “prove that the evidence it proposes to use is

derived from a legitimate source wholly independent of the compelled testimony.” Id.


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b. Application

Kastigar and its progeny are inapposite to the facts of Quinn’s case. First,

unlike in Kastigar, Quinn statements to the government were not compelled. Rather, Quinn

voluntarily proffered with the government on June 15 and 29, 2011. He therefore cannot rely

on the Fifth Amendment privilege that was the basis of the defendant’s claim in Kastigar.

See, e.g., United Satates v. Ramos, 685 F.3d 120, 127 (2d Cir. 2012). (“[T]he [Fifth

Amendment] privilege must be invoked: an individual must claim the privilege to be

protected by it. An individual who makes self-incriminating statements without claiming the

privilege is deemed not to have been ‘compelled’ but to have spoken voluntarily.”); United

States v. Jackson, 545 F. App’x 435, 446 (6th Cir. 2011) (“When a defendant voluntarily

provides information to the government, however, the Fifth Amendment is not implicated,

and the government may negotiate a lesser degree of immunity.”); United States v. Smith,

452 F.3d 323, 337 (4th Cir. 2006) (“Here, however, the defendant has provided information

voluntarily by agreement rather than by compulsion. In these situations, there is no Fifth

Amendment interest at stake, and the government is not obligated to provide use or

derivative use immunity, much less both.”); United States v. Baljit, 207 F. Supp. 2d 118, 121

(S.D.N.Y. 2002) (holding that voluntary proffers with the government constituted waiver of

Fifth Amendment privilege).

Moreover, again unlike in Kastigar, the scope of the immunity granted to

Quinn for his proffer statements is not governed by the Fifth Amendment or § 6002. As the

Court is aware, Quinn, with advice of counsel, entered into proffer agreements with the

government that set forth the ways the government may use Quinn’s proffer statements. It is

well settled that a proffer agreement is “a contract that must be interpreted ‘to give effect to


60

the intent of the parties.’” United States v. Barrow, 400 F.3d 109, 117 (2d Cir. 2005); see

also, e.g., United States v. Harper, 643 F.3d 135, 140 n.1 (5th Cir. 2011) (“Ordinary

principles of contract interpretation apply when interpreting the scope of negotiated

immunity.”).

And, finally, unlike the immunity at issue in Kastigar, the proffer agreements

between Quinn and the government do not provide Quinn with derivative use immunity.

Both agreements provide that “the Office may use any statements made by [Quinn] . . . to

obtain leads to other evidence, which evidence may be used by the Office in any stage of a

criminal prosecution (including but not limited to detention hearing, trial or sentencing), civil

or administrative proceeding.” (6/15/2011 Proffer Agreement ¶ 3; 6/29/2011 Proffer

Agreement ¶ 3.) This provision in the proffer agreement is fatal for Quinn’s argument

because, as the Ninth Circuit has explained, “Kastigar hearings occur only because the

immunity privilege implicated therein itself precludes derivative use.” United States v.

Renzi, 651 F.3d 1012, 1032 (9th Cir. 2011) (emphasis added).

It is well-settled that a defendant is not entitled to a Kastigar hearing where, as

here, a defendant has received use immunity but not derivative use immunity. In United

States v. Short, the Fourth Circuit rejected the defendant’s assertion that the government’s

grant of use immunity entitled him to a Kastigar hearing. See 387 F. App’x 308, 314 & n.3

(4th Cir. 2010). The Court first expressed doubt that, as here, the “use-immunity agreement

at issue in this case is subject to the full Kastigar protections . . . because [the defendant]

voluntarily cooperated with the government.” Id. 314 n.3. It went on to explain that “to the

extent that a full Kastigar hearing is ever appropriate in non-compulsion cases, it was not

required in this case because, at most, the government provided [the defendant] with use


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immunity, not derivative use immunity, and there is no evidence in the record showing that

the government directly used the immunized testimony.” Id.; see also United States v.

Mendizabal, 214 F. App’x 496, 501 (6th Cir. 2006) (“A defendant granted only pocket

immunity [as opposed to statutory immunity under § 6002], however, lacks grounds for

insisting on a Kastigar hearing, and normal contract law and remedies govern any alleged

breach by prosecutors.”); United States v. Breeden, 149 F. App’x 197, 201 (4th Cir. 2005)

(“As the Government was permitted to use the statements derivatively and the Government

did not violate the proffer agreement or any evidentiary privileges, no Kastigar hearing was

required because it was not necessary to determine if the Government could use the

statements derivatively.”); United States v. Catano, 65 F.3d 219, 226 (1st Cir. 1995)

(rejecting claim for Kastigar hearing as unnecessary where “the only offer was an offer

against direct use of the testimony and not any derivative use”); United States v. Garcia,

1994 WL 46308, at *20 (9th Cir. 1994) (“The agreements between [the defendant] and the

Government specifically permit the Government to make derivative use of any statements

made by [the defendant], obviating the need to hold a subsequent Kastigar hearing.”);

Pittenger v. United States, 10 CV 4038, 2011 WL 2671255, at *5 (C.D. Ill. June 30, 2011)

(“[A] Kastigar hearing is appropriate when [a defendant] has been granted both use

immunity and derivative-use immunity.” (emphasis added)); United States v. Curry, 05 CR

10, 2005 WL 2100651, at *3 (E.D. Tenn. July 14, 2005) (“A court is not required to hold a

Kastigar hearing when the grant of immunity is not formal, statutory immunity.”); United

States v. Smallwood, 311 F.Supp.2d 535, 544 (E.D. Va. 2004) (“Accordingly, because [the

defendant] did not receive derivative use immunity under the terms of the 1996 plea

agreement, he is not entitled to a Kastigar hearing in this case.”); United States v. Fernandez,


62

00 CR 420, 2000 WL 1409738, at *3 (S.D.N.Y. Sept. 22, 2000) (denying request for

Kastigar hearing where defendant signed proffer agreement permitting derivative use).

The case law and Quinn’s proffer agreements make clear that a Kastigar

hearing is inappropriate and unnecessary. Accordingly, Quinn’s request for such a hearing

should be denied. The Court should also reject his baseless motion to dismiss Racketeering

Acts Two and Six and Counts Six and Seven on this same basis.6

3. The Government Properly Introduced Evidence of Quinn’s 1997 Arrest

Quinn also argues that the government improperly introduced evidence of

Quinn’s 1997 arrest for possession of 11 bags of a white rocky substance that tested positive

for the presence of cocaine. (JQ Br. at 14-15.) The Court should reject Quinn’s attempt to

relitigate the Court’s September 23, 2014 ruling permitting the government to introduce

evidence of Quinn’s 1997 arrest and deny his Rule 33 motion to extent it is based on that

evidence. (JQ Br. at 14.) “In these arguments, [Quinn] seeks to use Rule 33 as a vehicle to

relitigate evidentiary rulings with which he disagrees. However, [Quinn] offers no authority

to suggest that these allegedly erroneous evidentiary rulings would support his request for a

new trial.” United States v. Smith, 08 CR 390, 2009 WL 4249120, at *8 (S.D.N.Y. Nov. 25,

2009). As in Smith, Quinn “cannot show prejudice, and cannot prevail on his Rule 33

motion.” Id.; see also United States v. Barret, 10 CR 809, 2012 WL 3229291, at *28-*29

(E.D.N.Y. Aug. 6, 2012) (same).

6 Contrary to Quinn’s assertion, it is demonstrably untrue that Lamar Goodwine “did not identify Quinn” during Goodwine’s testimony. (JQ Br. at 12.) To the contrary, Goodwine identified Quinn in Government Exhibit 3A, a booking photograph of Quinn from the 1990s, when Quinn had dreadlocks. (See Tr. at 1115-16). Goodwine explained that he knew the person shown in Government Exhibit 3A as “Q.” (Id. at 1116.)


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The admissibility of evidence of Quinn’s 1997 arrest was extensively briefed

in the months prior to trial and argued at length before the Court on September 23, 2014.

(See, e.g., Docket Entry. Nos. 278 (government motion in limine seeking to introduce

evidence of Quinn’s 1997 arrest), 282 (Quinn’s memorandum in opposition to motion in

limine), 331 (Quinn’s supplemental memorandum in opposition to motion in limine); see

also Tr. dated Sept. 23, 2014 at 65-72 (oral argument on government’s motion in limine).

The Court determined that Quinn’s 1997 arrest was direct evidence of the charged

conspiracy and permitted the government to introduce evidence of the arrest at trial. (Tr.

dated Sept. 23, 2014 at 69.) The government abided by the Court’s ruling and there is no

basis to vacate the jury’s verdict on this ground.

Quinn’s attempt to relitigate the Court’s ruling regarding the substance of

Sergeant David Villarreal’s testimony about Quinn’s 1997 arrest should also be rejected. (JQ

Br. at 15.) Sgt. Villarreal testified that he was trained to identified crack cocaine and that 2/3

of his approximately 800 arrests were for crack cocaine or other controlled substances. (Tr.

at 1027.) Sgt. Villarreal testified that, based on his experience and training, he identified the

material he seized from Quinn in 1997 as crack cocaine. (Id.) NYPD Chemist Nagwa

Hanna testified that the substance seized from Quinn tested positive for cocaine. (Id. at

1048.) She explained that she did not test the material seized from Quinn for the presence of

crack cocaine because the test was not requested at the time. (Id. at 1049-50.) She

nevertheless noted that crack cocaine would also test positive for the presence of cocaine.

(Id.) In summation, the government fairly characterized the evidence admitted from Quinn’s

1997 arrest:


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You know that Jason Quinn was selling crack back in the 1990s because he was arrested by retired sergeant David Villar[r]eal. Jason Quinn was arrested for driving without a valid license, and when the officer[] searched him, he found eleven bags of crack cocaine in his underwear. You heard from Sergeant Villar[r]eal that he had seized crack hundreds of times in his career and he knew what it looked like. You also heard that it tested positive for cocaine at the lab and that crack cocaine will test positive for both cocaine base and cocaine.

(Tr. at 2303.)

In sum, the evidence about Quinn’s 1997 arrest provides no basis to vacate the

jury’s verdict. Quinn’s Rule 33 motion on this ground should be denied.

4. The Government Did Not “Distort” Felix Grant’s Testimony

Quinn argues that that the government distorted the testimony of Felix Grant

on direct examination. (JQ Br. at 15.) Ths argument should be rejected. Quinn failed to

raise any issue about Grant’s testimony during trial (Tr. at 2024-56, 2074-21187) and he now

fails to cite to any portion of the transcript in support of his argument. Indeed, Quinn fails

even to explain in his brief how the government “distorted” Grant’s testimony during direct

examination. Rather, Quinn’s argument appears to be based entirely on the unsupported

assertion that Quinn was a drug dealer “operating on his own” – an assertion belied by the

physical, testimonial and wiretap evidence introduced by the government at trial. Quinn’s

conclusory assertion provides no basis to vacate the jury’s verdict and his Rule 33 motion on

this ground should be denied.

7 Quinn’s counsel objected only once during the government’s direct examination of Grant, to purported hearsay, and the objection was overruled by the Court. (Tr. at 2082.)


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5. The Government’s Argument About the Waiver Provisions of Quinn’s Proffer Agreement Provides No Basis to Vacate the Verdict

Quinn also asserts that the government improperly argued that Quinn’s cross-

examination of Paul Ford triggered the waiver provision in Quinn’s proffer agreements. (JQ

Br. at 16-21.) However, the Court’s rulings on this issue provide no basis to vacate the jury’s

verdict under Rule 33, and Quinn’s attempt to relitigate this issue should also be rejected.

Quinn fails to acknowledge that he was in no way prejudiced by the Court’s

rulings because he ultimately prevailed on the issue he is now attempting to relitigate – after

the Court received briefing from both parties on the waiver issue, the Court denied the

government’s request to introduce any of Quinn’s proffer statements before the jury. (Tr. at

1427.) Indeed, none of Quinn’s statements were introduced at any time during the trial. The

argument and ruling described in Quinn’s Rule 33 motion occurred after Quinn’s lawyer had

completed his cross-examination of Paul Ford, and no part of the argument or the Court’s

ruling occurred in the presence of the jury. Accordingly, there was no prejudice to Quinn

and there is no basis to vacate the jury’s verdict on this ground.

To the extent Quinn argues that the Court’s rulings prevented his counsel from

effectively cross-examining subsequent government witnesses, that argument is equally

unsupported and should be rejected. First, throughout the pendency of this case, Quinn’s

counsel has aggressively litigated issues related to Quinn’s proffer agreements before Your

Honor and the Second Circuit. On October 9, 2014, the morning that Quinn’s trial began,

Quinn’s counsel filed a sealed letter with the Court concerning his understanding of the

waiver provisions in Quinn’s proffer agreements and the parties and the Court discussed the

issue at length. (Tr. at 15-21.) During trial, Quinn’s counsel continued to vigorously litigate


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the terms of proffer agreements and to oppose the admissibility of Quinn’s proffer

statements. In light of this record, it is frivolous for Quinn’s counsel to now assert that he

was somehow cowed by the Court’s patient, polite and careful resolution of these issues

during trial in a way that prevented him from adequately confronting adverse witnesses.

The Court’s care in dealing with this issue is apparent from its offer to preview

proposed lines of cross-examination to assist Quinn’s counsel in his attempt to avoid

triggering the waiver provisions in Quinn’s proffer agreements. In Quinn’s October 9, 2014

sealed letter to the Court, Quinn’s counsel indicated that he would “to the extent possible, . . .

alert the Court and counsel of any possible cross-examination questions that” might trigger

the waiver provisions by “accus[ing] a government witness of fabrication, or otherwise range

beyond a simple challenge to the witness’s ability to perceive an event.” (10/09/2014 Def.

Ltr. at 3.) Prior to opening statements, the Court explained to Quinn’s counsel that the Court

would be available to consult on such issues: “I’m also liberal on side bars. . . . So if you

think you need a side bar before you begin a line of inquiry, you say, your Honor, I need a

side bar, and we’ll all go over and we’ll all hear what you have to say.” (Tr. at 21.) The

record makes abundantly clear that the Court did not prevent Quinn’s counsel from

confronting adverse witnesses. Rather, the Court was willing to assist counsel with this

issue. Counsel failed to avail himself of the Court’s assistance, which demonstrates the

frivolity of his current argument.8

8 Nor should the jury verdict be disturbed because of the Court’s ruling that the government was not required to object to cross-examination questions that might trigger the waiver provisions of Quinn’s proffer agreement. (JQ Br. at 16.) Quinn has not cited a case in any district in which the government was required to lodge such objections and there is no basis in law or in the terms of the proffer agreements to support his argument. Put simply,


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The Court’s rulings following Quinn’s counsel’s cross examination of Paul

Ford therefore provide no basis to vacate the jury’s verdict under Rule 33, and Quinn’s

motion on this ground should be denied.

there is nothing objectionable about a line of questioning that triggers the waiver provisions of Quinn’s proffer agreement. Such questions do not breach the proffer agreement; rather, they trigger a conditional provision of the agreement – if x, then y – that the parties negotiated and entered into voluntarily. Contrary to Quinn’s assertion, Federal Rule of Evidence 103 does not require an objection under such circumstances because there is no “claim of error” that the government is seeking to preserve. See Fed. R. Evid. 103(a) (“Preserving a Claim of Error”). The Court’s ruling on this issue was correct, and there is no basis to disturb the jury’s verdict on this ground.


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CONCLUSION

For the reasons set forth above, the defendants’ motions for acquittals or new

trials should be denied in their entirety.

Dated: Brooklyn, New York January 12, 2015

Respectfully submitted,

LORETTA E. LYNCH United States Attorney Eastern District of New York 271 Cadman Plaza East Brooklyn, New York 11201

By: /s/ Allon Lifshitz Richard M. Tucker Kevin Trowel Assistant United States Attorneys (718) 254-6164/6204/6351


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